OSAGE BANCSHARES, INC.
2,890,962 Shares
(subject to increase to 3,324,606 shares)
COMMON SHARES
($.01 Par Value)
Subscription Price $10.00 Per Share
AGENCY AGREEMENT
__________, 2006
Xxxxx, Xxxxxxxx & Xxxxx, Inc.
000 Xxxxxxxxx Xxxxx
Xxxxxx, Xxxx 00000-0000
Ladies and Gentlemen:
Osage Bancshares, Inc., a Maryland corporation (the
"Company"), Osage Federal Bank, a federally chartered stock savings bank (the
"Bank"), Osage Federal Financial, Inc., a federal corporation, the current
mid-tier holding company of the Bank ("Osage"), and Osage Federal MHC, a
federally chartered mutual holding company and the current majority owner of
Osage (the "MHC"), hereby confirm their agreement with Xxxxx, Xxxxxxxx & Xxxxx,
Inc. ("Xxxxx Xxxxxxxx" or the "Selling Agent") to serve as agent of the Company
to assist the Company in the sale of up to 2,890,962 (subject to increase up to
3,324,606 shares) of Common Stock (as defined below) of the Company (the
"Shares" or "Conversion Stock") in the Subscription and Community Offerings, as
defined below, as follows:
Introductory. The Company was recently incorporated under the
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laws of the State of Maryland for the purpose of being the successor of Osage.
The Company is authorized to issue 25,000,000 shares of capital stock, of which
20,000,000 shares are common stock having a par value of one cent ($.01) per
share (the "Common Stock"). The Offering, as defined below, is being conducted
in connection with the mutual-to-stock conversion of the MHC (the "Conversion").
The Conversion is being conducted in accordance with the laws
of the United States and the applicable regulations of the Office of Thrift
Supervision (the "OTS") (such laws and the regulations of the OTS are referred
to herein as the "Conversion Regulations").
The Company, Osage, the MHC and the Bank are sometimes
referred to herein as the "Osage Parties."
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The Conversion is to be conducted in accordance with a Plan of
Conversion and Reorganization (the "Plan") adopted by the Board of Directors of
the MHC, the Board of Directors of the Bank and the Board of Directors of Osage
on July 21, 2006. The Plan provides that the Conversion will be effected as
follows: the Bank will establish the Company as a Maryland stock holding company
subsidiary; the Company will charter an interim federal savings bank as a wholly
owned subsidiary ("Interim Bank"); Osage will convert to an interim stock
savings bank and will thereafter merge with and into the Bank, with the Bank as
the surviving entity; the MHC will contemporaneously convert to an interim stock
savings bank and merge with and into the Bank; the Interim Bank will then merge
with and into the Bank with the Bank as the surviving entity. In connection with
the foregoing transactions, each stockholder of Osage immediately prior to the
Conversion, other than the MHC ("Public Stockholders"), will receive shares of
the Company's Common Stock pursuant to an exchange ratio described in the Plan.
Pursuant to the Plan and in connection with the Conversion, the Company will
offer the Conversion Stock for sale in the Offering.
The Company, in accordance with the Plan, is offering, in a
subscription offering by way of nontransferable subscription rights, the Shares
for a purchase price of $10.00 per share (the "Purchase Price") in a
Subscription Offering, Community Offering and, if necessary, a Syndicated
Community Offering (in each case, as defined below and all of which,
collectively, are referred to herein as the "Offering"). The aggregate number of
Shares to be issued in the Offering will be between 2,136,798 to 3,324,606 and
will be based upon an independent appraisal of the estimated pro forma market
value of the Common Stock of the Company.
The Shares will be offered in descending order of priority to
(i) the Bank's Eligible Account Holders (defined as holders of deposit accounts
totaling $50 or more as of June 30, 2005); (ii) the Company's and the Bank's
tax-qualified employee stock benefit plans ("Tax-Qualified Plans"), for a total
of up to 8% of the Shares sold in the Offering; (iii) the Bank's Supplemental
Eligible Account Holders (defined as holders of deposit accounts totaling $50 or
more as of September 30, 2006); and (iv) other account holders of record as of
the close of business on ______, 2006 (collectively, the "Subscription
Offering"). Shares of Common Stock not purchased in the Subscription Offering
may be offered to Osage public stockholders and the general public in a
community offering that is expected to be conducted during the Subscription
Offering (the "Community Offering"). In the Community Offering, preference will
be given to Osage public stockholders and then to natural persons residing in
the counties in which the Bank has branch offices. It is acknowledged that the
Company reserves the right, in its absolute discretion, to accept or reject, in
whole or in part, any or all orders in the Community Offering and the Syndicated
Community Offering (as defined below).
Shares of Common Stock not purchased in the Subscription
Offering or in the Community Offering may be sold through a syndicated community
offering managed by Selling Agent (the "Syndicated Community Offering").
Except for the Tax Qualified Plans, generally no person may
purchase in the Offering more than 35,000 Shares; the maximum number of shares
that an individual together with persons acting in concert may purchase in all
categories of the Offering combined is 50,000 Shares; provided that the Company
may, subject to OTS approval, in its sole discretion and without further notice
to or solicitation of subscribers or other prospective purchasers, increase or
decrease such maximum purchase limitations.
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The following applications have been filed in connection
with the Conversion: (i) an Application for Conversion
on Form AC (the "Conversion Application") has been filed with the OTS; and (ii)
an Application H-(e)1 Holding Company Application (the "Holding Company
Application") has been filed with the OTS; all amendments to the foregoing
applications required to the date hereof have also been filed. The Conversion
Application and the Holding Company Application are referred to herein
collectively as the "Reorganization Applications." The Conversion Application
includes, among other things, the Plan. The Company has filed with the
Securities and Exchange Commission (the "Commission") a registration statement
on Form S-1 (File No. 333-137377) (the "Registration Statement") containing a
prospectus relating to the Subscription Offering, the Community Offering and the
Syndicated Community Offering for the registration of the sale of the Shares
under the Securities Act of 1933, as amended (the "1933 Act"), and has filed
such amendments thereto and such amended prospectuses as may have been required
to the date hereof. The prospectus, as amended, on file with the Commission at
the time the Registration Statement becomes effective is hereinafter called the
"Prospectus," except that if the prospectus filed by the Company pursuant to
Rule 424(b) of the rules and regulations, as amended, of the Commission under
the 1933 Act (the "1933 Act Regulations") differs from the prospectus on file at
the time the Registration Statement becomes effective, the term " Prospectus"
shall refer to the prospectus filed pursuant to Rule 424(b) from and after the
time such prospectus is filed with or mailed to the Commission for filing, and
shall include any supplements and amendments thereto. Any document constituting
a "free writing prospectus" (as defined in Rule 405 of the 1933 Act
Regulations), which the Selling Agent has approved in advance for use by the
Osage Parties in connection with the Offering is referred to herein as a
"Permitted Free Writing Prospectus."
SECTION 1. Appointment of the Selling Agent; Compensation to
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the Selling Agent. Subject to the terms and conditions set forth below, the
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Company hereby appoints Xxxxx Xxxxxxxx as its exclusive agent to consult with
and advise the Osage Parties, and to solicit subscriptions and purchase orders
for Shares on behalf of the Company, in connection with the Company's offering
of Common Stock in the Subscription and Community Offerings. On the basis of the
representations, warranties and agreements herein contained, and subject to the
terms and conditions herein set forth, Xxxxx Xxxxxxxx accepts such appointment
and agrees to consult with and advise the Osage Parties as to the matters set
forth in the Engagement Letter between the Selling Agent, Osage and the Bank
dated September 6, 2006 attached as Exhibit A hereto ("Engagement Letter"), and
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to use its best efforts to solicit subscriptions and purchase orders for Shares
in accordance with this Agreement; provided, however, that the Selling Agent
shall not be responsible for obtaining subscriptions or purchase orders for any
specific number of Shares, shall not be required to purchase any Shares and
shall not be obligated to take any action that is inconsistent with any
applicable law, regulation, decision or order.
The obligations of the Selling Agent pursuant to this Agreement (other
than those set forth in Section 7(b) hereof) shall terminate upon the completion
or termination or abandonment of the Plan by the Company or upon termination of
the Offering, but in no event later than 45 days after the completion of the
Subscription Offering (the "End Date"). All fees or expenses due to the Selling
Agent but unpaid will be payable to the Selling Agent in next day funds at the
earlier of the Closing Date (as hereinafter defined) or the End Date. In the
event the Offering is extended beyond the End Date, the Company, the Bank and
the Agent may agree to renew this Agreement under mutually acceptable terms.
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In the event the Company is unable to sell a minimum of 2,136,798
Shares within the period herein provided, this Agreement shall terminate and the
Company shall refund to any persons who have subscribed for any of the Shares
the full amount which it may have received from them plus accrued interest, as
set forth in the Prospectus; and none of the parties to this Agreement shall
have any obligation to the other parties hereunder, except as set forth in this
Section 1 and in Sections 6 and 7 hereof. In the event the Offering is
terminated for any reason not attributable to the action or inaction of the
Agent, the Agent shall be paid the fees and expenses due to the date of such
termination pursuant to subparagraphs (a) and (d) below.
If all conditions precedent to the consummation of the Offering,
including, without limitation, the sale of all Shares required by the Plan to be
sold, are satisfied, the Company agrees to issue, or have issued, the Shares
sold in the Offering and to release for delivery certificates for such Shares on
the Closing Date (as hereinafter defined) against payment to the Company by any
means authorized by the Plan; provided, however, that no funds shall be released
to the Company until the conditions specified in Section 8 hereof shall have
been complied with. The release of Shares against payment therefor shall be made
on a date and at a place acceptable to the Company, the Bank and the Selling
Agent. Certificates for shares shall be delivered directly to the purchasers in
accordance with their directions. The date upon which the Company shall release
or deliver the Shares sold in the Offering, in accordance with the terms herein,
is called the "Closing Date."
The Selling Agent shall receive the following compensation for its
services hereunder:
(a) A management fee of $25,000 payable in four consecutive monthly
installments of $6,250 commencing with the adoption of the Plan. This
fee shall be due as it is earned and shall be non-refundable.
(b) A success fee upon completion of the Offering of 1.25% of the
aggregate Purchase Price of the Common Shares sold in the Subscription
Offering and Community Offering, excluding (i) shares purchased by the
Bank's officers, directors, or employees (or members of their immediate
families), and (ii) shares purchased by any employee stock ownership
plan, tax-qualified or stock-based compensation plans (except IRAs) or
similar plan created by the Bank or the Company for some or all of its
directors or employees. For purposes of this Agreement, "immediate
family" includes an officer's, director's or employee's spouse,
siblings, parents and children who live in the same house with the
officer, director or employee. The management fee described in
subparagraph 1(a) will be applied against this success fee.
(c) If any of the Shares remain available after the Subscription
Offering, at the request of the Bank, the Agent will seek to form a
syndicate of registered broker-dealers ("Selected Dealers") to assist
in the sale of such Shares on a best efforts basis, subject to the
terms and conditions set forth in the selected dealers agreement. The
Agent will endeavor to distribute the Shares among the Selected Dealers
in a fashion that best meets the distribution objectives of the Bank
and the Plan. The Agent will be paid a fee not to exceed 5.5% of the
aggregate Purchase Price of the Shares sold by the Selected Dealers.
The Agent will pass onto the Selected Dealers who assist in the
Syndicated Community Offering an amount competitive with gross
underwriting discounts charged at such time for comparable amounts of
stock sold at a comparable price per share in a similar market
environment. Fees with respect to purchases effected with the
assistance of Selected Dealers other than the Agent shall be
transmitted by the Agent to such Selected Dealers (and will be applied
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against, and come from, the 5.5% fee). The decision to utilize Selected
Dealers will be made by the Bank upon consultation with the Agent. In
the event any fees are paid pursuant to this subparagraph 1(c), such
fees shall be in lieu of, and not in addition to any fees for the sale
of Shares payable pursuant to subparagraph 1(b).
(d) The Bank and Company shall reimburse the Agent for reasonable
out-of-pocket expenses (including costs of travel, meals and lodging,
photocopying, telephone, facsimile and couriers) provided such expenses
do not execeed $20,000. The Bank and the Company will also reimburse
the Agent for the fees of its counsel (which do not include legal fees
to complete the qualification of the Common Shares under the various
state securities "Blue Sky" laws) up to $45,000 and reasonable
out-of-pocket expenses of such counsel. The Bank will bear the other
expenses of the Offering customarily borne by issuers including,
without limitation, regulatory filing fees, SEC, "Blue Sky," and NASD
filing and registration fees; the fees of the Bank*s accountants,
attorneys, appraiser, transfer agent and registrar, printing, mailing
and marketing expenses associated with the Offering; and the fees set
forth under this Section 1. The Company or the Bank will reimburse the
Agent for any such other expenses incurred by the Agent on their
behalf. The parties hereto acknowledge that the expense limitations set
forth in this paragraph may be exceeded in the event of a material
delay in the Offering that requires an update of financial information
contained in the Registration Statement for a period later than June
30, 2006.
If (i) the Plan is abandoned or terminated by the Company; (ii) the
Offering is not consummated by ____, 2006; (iii) the Selling Agent terminates
this Agreement because there has been a material adverse change in the financial
condition or operations of Osage since June 30, 2006; or (iv) immediately prior
to the commencement of the Offering, the Selling Agent terminates this Agreement
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
Registration Statement, the Prospectus or the Reorganization Applications or
market conditions exist that might render the sale of the Shares by the Company
inadvisable, the Management Fee shall serve as compensation for its advisory and
administrative services as set forth in the Engagement Letter, in addition to
reimbursement of the Selling Agent's reasonable out-of-pocket expenses as set
forth above. If, pursuant to a resolicitation undertaken by the Company, the
Selling Agent is required to provide significant additional services, or expend
significant additional time, the parties shall mutually agree to the dollar
amount of the additional compensation due.
The compensation specified above shall be payable (to the extent not
already paid) to the Selling Agent in next day clearinghouse funds on the
earlier of the Closing Date (as hereinafter defined), a determination by the
Company and the Bank to terminate or abandon the Plan, or the termination of
this Agreement by the Selling Agent or the Company and the Bank in accordance
with the preceding paragraph or otherwise. The Bank and the Company agree to
reimburse the Selling Agent from time to time for the reasonable costs and
expenses specified in Section 6 hereof, promptly upon receiving a reasonable
accounting of such costs and expenses.
SECTION 2. Closing Date; Release of Funds and Delivery of
Certificates. If all conditions precedent to the consummation of the Conversion
and the Offering are satisfied, the Company agrees to issue or have issued the
Shares sold in the Subscription and Community Offerings and to release for
delivery certificates evidencing such Shares on the Closing Date against payment
therefor by release of funds from the special, interest-bearing account referred
to
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in Section 5(o) hereof and by the authorized withdrawal of funds from deposit
accounts at the Bank in accordance with the Plan; provided, however, that no
such funds shall be released to the Company or withdrawn until the conditions
specified in Section 8 hereof shall have been complied with. Such release,
withdrawal and payment shall be made on the Closing Date, on a business day and
at a time and place selected by the Selling Agent, which date and place shall be
acceptable to the Bank and the Company, on at least two (2) business days prior
notice to the Bank and the Company, or such other time or place as shall be
agreed upon by the Selling Agent, the Bank and the Company. Certificates
evidencing the Shares sold in the Subscription and Community Offerings shall be
delivered directly to the purchasers thereof or in accordance with their
directions. The hour and date upon which the Company shall release or deliver
the Shares sold in the Offering in accordance with the terms hereof is called
the "Closing Date."
SECTION 3. Prospectus; Offering. The Shares are to be offered
in the Offering at $10.00 per share, as set forth on the cover page of the
Prospectus. There will be a minimum and maximum, and an adjusted maximum, number
of Shares offered. The number of Shares offered may be changed by the Company,
subject to the provisions of the Plan, depending on market and financial
conditions.
SECTION 4. Representations and Warranties; Certain Covenants.
4.1 Representations and Warranties of the Osage Parties. The
Osage Parties jointly and severally represent and warrant to and covenant with
the Selling Agent as follows.
a. The Registration Statement was declared effective by the
Commission on _______, 2006. At the time the Registration Statement, including
the Prospectus contained therein, became effective, the Registration Statement
complied in all material respects with the requirements of the 1933 Act and the
1933 Act Regulations and the Registration Statement, any preliminary or final
Prospectus, any Securities Communication (as defined in Section 7 hereof) or any
Sales Information (as defined in Section 7 hereof) authorized by any Osage Party
for use in connection with the Offering did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, and at the time any Rule 424(b) Prospectus
is filed with or mailed to the Commission for filing and at the Closing Date
referred to in Section 2, the Registration Statement, any preliminary or final
Prospectus, any Securities Communication or any Sales Information authorized by
any Osage Party for use in connection with the Offering will not contain an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading; provided, however, that the
representations and warranties in this Section 4.1(a) shall not apply to
statements in or omissions from the Registration Statement, any preliminary or
final Prospectus, any Securities Communication or any Sales Information made in
reliance upon and in conformity with information furnished in writing to the
Osage Parties by the Selling Agent expressly regarding the Selling Agent for use
under the caption "The Stock Offering-Plan of Distribution/Marketing
Arrangements" in the Prospectus, provided, however, that nothing has come to the
attention of the Osage Parties that would lead them to believe that the
information under such captions contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading.
b. No Osage Party has directly or indirectly distributed or
otherwise used and
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will not directly or indirectly distribute or otherwise use any prospectus, any
"free writing prospectus" (as defined in Rule 405 of the Rules and Regulations)
or other offering material (including, without limitation, content on the
party's website that may be deemed to be a prospectus, free writing prospectus
or other offering material) in connection with the offering and sale of the
Shares other than any Permitted Free Writing Prospectus or the Prospectus or
other materials permitted by the 1933 Act and the 1933 Act Regulations to be
distributed by the Osage Parties and reviewed and approved in advance for
distribution by the Selling Agent. No Osage Party has, directly or indirectly,
prepared or used and no Osage Party will, directly or indirectly, prepare or
use, any Permitted Free Writing Prospectus except in compliance with the filing
and other requirements of Rules 164 and 433 of the 1933 Act Regulations;
assuming that such Permitted Free Writing Prospectus is accompanied or preceded
by the Prospectus and that such Permitted Free Writing Prospectus is so sent or
given after the Registration Statement was filed with the Commission (and after
such Permitted Free Writing Prospectus was, if required pursuant to Rule 433(d)
under the Act, filed with the Commission), the sending or giving, by the Selling
Agent, of any Permitted Free Writing Prospectus will satisfy the provisions of
Rules 164 and 433 (without reliance on subsections (b), (c) and (d) of Rule
164); and the Company is not an "ineligible issuer" (as defined in Rule 405 of
the Rules and Regulations) as of the eligibility determination date for purposes
of Rules 164 and 433 of the Rules and Regulations with respect to the offering
of the Shares or otherwise precluded under Rule 164 from using free writing
prospectuses in connection with the offering of the Shares.
c. As of the Applicable Time (as defined below), neither the
Prospectus or any preliminary Prospectus, nor any Permitted Free Writing
Prospectus (collectively, the "Disclosure Package"), will contain an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in light of the circumstances under which they
were made, not misleading; provided, however, that the representations and
warranties in this Section 4.1(c) shall not apply to statements in or omissions
from the Prospectus, any preliminary Prospectus or any Permitted Free Writing
Prospectus made in reliance upon and in conformity with information furnished in
writing to the Osage Parties by the Selling Agent expressly regarding the
Selling Agent for use under the caption "The Stock Offering-Plan of
Distribution/Marketing Arrangements" in the Prospectus, provided, however, that
nothing has come to the attention of the Osage Parties that would lead them to
believe that the information under such captions contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. The term "Applicable
Time" means each and every date when a potential purchaser submits a
subscription or otherwise commits to purchase Shares.
d. The Company has filed with the OTS the Conversion
Application, including the Plan, the Registration Statement and the Prospectus,
and the Holding Company Application, each of which included exhibits and
supplemental material, and has filed an amendment or amendments thereto, as
required, and has published notice of such filings, as required, all of which
applications have been or prior to the Closing Date will be approved by the OTS;
and the Plan has been adopted by the Board of Directors of the MHC, and has been
or prior to the Closing Date will be approved by the Members of the MHC and the
stockholders of Osage in accordance with the Conversion Regulations.
e. At the Closing Date, the Conversion and the Offering will
have been effected in the manner described in the Prospectus and in accordance
with the Plan, the Conversion
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Regulations and all other applicable laws, regulations, decisions and orders,
including in compliance with all terms, conditions, requirements and provisions
precedent to the Conversion and the Offering imposed upon the Osage Parties by
the Commission, the OTS, any state regulatory or Blue Sky authority or any other
regulatory authority.
f. No order has been issued by the Commission, the OTS or any
state regulatory or Blue Sky authority preventing or suspending the use of the
Prospectus, and, to the knowledge of the Osage Parties, no action by or before
any such governmental entity to revoke any approval, authorization or order of
effectiveness related to the Conversion or the Offering is pending or
threatened.
g. At the time of the approval of the Reorganization
Applications (including any amendment or supplement thereto) by the applicable
regulatory authorities, the Reorganization Applications complied in all material
respects with the Conversion Regulations and the HOLA. The Prospectus contained
in the Reorganization Applications (including any amendment or supplement
thereto), at the time of the approval of the Reorganization Applications by the
OTS and at all times subsequent thereto until the Closing Date, complied and
will comply in all material respects with the Conversion Regulations and the
HOLA.
x. Xxxxxx & Company, Inc. ("Xxxxxx"), which prepared the
Independent Valuation dated as of August 29, 2006 described in the Prospectus
("Independent Valuation"), is independent with respect to the Osage Parties
within the meaning of the Conversion Regulations and is believed by the Osage
Parties to be experienced and expert in the valuation and the appraisal of
business entities, including savings institutions, and the Osage Parties believe
that Xxxxxx has prepared the pricing information set forth in the Prospectus in
accordance with the requirements of the Conversion Regulations.
i. BKD, LLP ("BKD"), the firm which certified the financial
statements of Osage filed as part of the Registration Statement, is, with
respect to the Osage Parties, an independent certified public accountant as
required by the Code of Professional Ethics of the American Institute of
Certified Public Accountants, the 1933 Act and the 1933 Act Regulations and the
Securities Exchange Act of 1934, as amended (the "1934 Act"), and the
regulations thereunder.
j. The consolidated financial statements, together with the
related schedules and notes thereto, included in the Registration Statement and
which are part of the Prospectus present fairly the financial condition, results
of operations, changes in retained earnings and cash flows of Osage and its
consolidated subsidiaries, at and for the dates indicated and the periods
specified and comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act Regulations. Such financial statements
have been prepared in conformity with generally accepted accounting principles
("GAAP"), applied on a consistent basis during the periods involved, present
fairly in all material respects the information required to be stated therein
and are consistent with financial statements and other reports filed by Osage
with the OTS except to the extent that accounting principles employed in such
filings conform to the requirements of the OTS and not necessarily to GAAP. The
other financial, statistical and pro forma information and related notes thereto
included in the Prospectus present fairly the information shown therein on a
basis consistent with the audited financial statements of Osage included in the
Registration Statement and which are part of the Prospectus, and as to the pro
forma adjustments, such adjustments have been properly applied on the basis
described therein.
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k. Since the respective dates as of which information is
given in the Registration Statement and Prospectus, except as may otherwise be
stated therein: (i) there has not been any material adverse change in the
financial condition, net income, capital, properties, affairs or prospects of
the Osage Parties, taken as a whole, whether or not arising in the ordinary
course of business, (ii) there has not been any material increase in the
long-term debt of the combined institution taken as a whole, or in the principal
amount of the combined institution*s assets which are classified as substandard,
doubtful or loss or in loans past due 90 days or more or real estate acquired by
foreclosure, by deed-in-lieu of foreclosure or deemed in-substance foreclosure
or any material decrease in equity capital or total assets of the combined
institution, nor have the Osage Parties issued any securities or incurred any
liability or obligations for borrowing other than in the ordinary course of
business, (iii) there have not been any material transactions entered into by
the Osage Parties, except those transactions entered into in the ordinary course
of business and those specifically described in or contemplated by the
Prospectus, (iv) there has not been any material adverse change in the aggregate
dollar amount of the Osage Parties deposits or its net worth; (v) there has been
no material adverse change in the Osage Parties relationship with their
insurance carriers, including, without limitation, cancellation or other
termination of any fidelity bond or any other type of insurance coverage; (vi)
except as disclosed in the Prospectus, there has been no material change in
management of the Osage Parties; (vii) none of the Osage Parties has sustained
any material loss or interference with its respective business or properties
from fire, flood, windstorm, earthquake, accident or other calamity, whether or
not covered by insurance; (viii) none of the Osage Parties has defaulted in the
payment of principal or interest on any outstanding debt obligations; and (ix)
the capitalization, liabilities, assets, properties and business of the Osage
Parties conform in all material respects to the descriptions thereof contained
in the Prospectus. The Osage Parties have no material liability of any kind,
contingent or otherwise, except as reflected in the financial statements filed
as part of the Registration Statement or otherwise set forth in the Prospectus.
l. The Company is a Maryland corporation, duly organized and
validly existing and in good standing under the laws of the State of Maryland
with the corporate power and authority to conduct the business and own the
property of Osage as described in the Registration Statement and Prospectus
under Maryland law. Osage is a federal corporation, duly organized and validly
existing and in good standing under the laws of the United States with the
corporate power and authority to conduct the business and own the property of
Osage as described in the Registration Statement and Prospectus under federal
law. Upon consummation of the Offering, the Company will be a duly registered
savings and loan holding company under the Home Owners' Loan Act ("HOLA").
m. The Bank is a federally chartered stock savings bank
organized, validly existing and in good standing under the laws of the United
States with the corporate power and authority to conduct its business and own
its property as described in the Registration Statement and Prospectus.
n. The MHC is a federally chartered mutual holding company,
duly organized and validly existing and in good standing under the laws of the
United States with the corporate power and authority to conduct its business and
own its property as described in the Registration Statement and the Prospectus.
o. The Osage Parties have obtained all material licenses,
permits and other governmental authorizations currently required for the conduct
of their respective businesses
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(including, in the case of the Company, for the conduct of its business
following the Conversion); all such licenses, permits and governmental
authorizations are in full force and effect; the Osage Parties are complying
with all laws, rules, regulations and orders applicable to the operation of
their respective businesses, except where noncompliance would not result in a
material adverse effect on the business, financial condition, results of
operations, affairs or prospects of the combined institution taken as a whole;
and none of the Osage Parties has received notice of any proceeding or action
relating to the revocation or modification of any such license, permit or
governmental authorization which, individually or in the aggregate, if subject
to an unfavorable decision, ruling or finding, might materially and adversely
affect the conduct of the business, the financial condition, the results of
operations, affairs or prospects of the Osage Parties taken as a whole.
p. The certificate of incorporation, charter or similar
instruments of the Osage Parties are in full force and effect; no conservator or
receiver has been appointed for any of the Osage Parties; the Bank is operating
as an insured depository institution. Each of the Osage Parties is duly
qualified to transact business and is in good standing in each jurisdiction in
which its ownership or leasing of property or the conduct of its business
(currently and as contemplated following the Conversion) requires such
qualification unless the failure to be so qualified in one or more of such
jurisdictions would not have a material adverse effect on the business,
financial condition, results of operations, affairs or prospects of the Osage
Parties taken as a whole.
q. Upon consummation of the Conversion, all of the
outstanding capital stock of the Bank will be duly authorized and validly issued
and fully paid and nonassessable; and all such stock will be owned directly by
the Company, free and clear of all liens, encumbrances, claims or other
restrictions. Each of the Osage Parties does not own equity securities or any
equity interest in any other business enterprise except as described in the
Prospectus. The activities of the Company's subsidiaries are permitted to
subsidiaries of federally chartered savings banks (with respect to the Bank's
subsidiaries) and to subsidiaries of savings and loan holding companies (with
respect to subsidiaries of the MHC and Osage), in each case by the rules and
regulations of the OTS (in the case of the Bank's subsidiaries), and any other
state or federal authority having jurisdiction over such matters.
r. The deposit accounts of the Bank are, and following the
Closing Date of the Conversion the deposit accounts of the Bank will be, insured
by the Federal Deposit Insurance Corporation (the "FDIC"), up to the maximum
amounts allowed by law. Upon consummation of the Conversion, the liquidation
account for the benefit of Eligible Account Holders and Supplemental Eligible
Account Holders ("Liquidation Account") will be duly established by the Bank in
accordance with the requirements of the Conversion Regulations.
s. Upon consummation of the Conversion, the authorized equity
capital of the Company will consist of 20,000,000 shares of Common Stock and
5,000,000 shares of preferred stock, and the issued and outstanding equity
capital of the Company will be consistent with that set forth in the Prospectus
under the caption "Capitalization"; no shares of Common Stock, or securities
exercisable into or exchangeable for Common Stock, will have been issued prior
to the Closing Date; the Shares will have been duly and validly authorized for
issuance and, when issued and delivered by the Company pursuant to the Plan,
will be duly and validly issued and fully paid and nonassessable; the issuance
of the Shares is not subject to any preemptive rights; and the terms and
provisions of the Common Stock will conform in all material respects to the
description thereof contained in the Prospectus. Upon the issuance of the
Shares, good title to the Shares will
10
be transferred from the Company to the purchasers thereof against payment
therefor, subject to such claims as may be asserted against the purchasers
thereof by third-party claimants.
t. As of the date hereof and as of the Closing Date, none of
the Osage Parties, is or will be in violation of its charter or bylaws or in
default in the performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, lease, loan agreement,
indenture or other instrument to which it is a party or by which it or any of
its property may be bound; such agreements are in full force and effect; and no
other party to any such agreements has instituted or, to the knowledge of the
Osage Parties, threatened any action or proceeding wherein the Osage Parties
would or might be alleged to be in default thereunder, where such action or
proceeding, if determined adversely to the Osage Parties, would have a material
adverse effect on the financial condition, results of operations, or business of
the Osage Parties considered as one enterprise.
u. The consummation of the Conversion, the execution, delivery
and performance of this Agreement and the consummation of the transactions
herein contemplated have been duly and validly authorized by all necessary
corporate action on the part of the Osage Parties, and this Agreement has been
validly executed and delivered by the Osage Parties and is the valid, legal and
binding obligation of the Osage Parties, enforceable in accordance with its
terms, except to the extent that rights to indemnity hereunder may be limited
under applicable law and subject to bankruptcy, insolvency, reorganization or
other laws related to or affecting the enforcement of creditors' rights
generally and equitable principles limiting the right to obtain specific
enforcement or similar equitable relief. The execution and delivery of this
Agreement, the fulfillment of the terms herein set forth and the consummation of
the transactions herein contemplated will not (i) 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, the charter or bylaws of the Osage Parties,
or any material contract, lease or other instrument to which the Osage
Parties,or in which the Osage Parties, has a beneficial interest, or any
applicable law, rule, regulation or order; (ii) violate any authorization,
approval, judgment, decree, order, statute, rule or regulation applicable to the
Osage Parties,; or (iii) result in the creation of any lien, charge, encumbrance
or other restriction upon any property of the Osage Parties.
v. The Osage Parties have all such power, authority,
authorizations, approvals and orders as may be required to enter into this
Agreement and to carry out the provisions and conditions hereof, and the Company
has all such power, authority, authorizations and orders as may be required to
issue and sell the Shares as provided in the Plan and described in the
Prospectus, subject to the approval of the applicable regulatory authorities and
the satisfaction of any conditions of such approval.
w. The Osage Parties have good and marketable title to all
properties and assets that are material to their respective businesses including
those properties and assets described in the Prospectus as owned by them, free
and clear of all liens, except such liens as are described in the Prospectus or
are not material in relation to the business of the Osage Parties on a
consolidated basis; and all leases and subleases which are material to the
business of the Osage Parties taken as a whole under which the Osage Parties
holds properties, including those leases and subleases described in the
Prospectus, are in full force and effect.
x. As of the date hereof and as of the Closing Date and the
effective date of the Registration Statement, the Osage Parties, are not and
will not be in violation of any directive from
11
the Commission, the OTS, the FDIC, or any other agency to make any material
change in the method of conducting their respective businesses so as to comply
in all material respects with all applicable statutes and regulations
(including, without limitation, regulations, decisions, directives and orders of
such governmental agencies), and no suit or proceeding, charge, investigation or
action before or by any court, regulatory authority or governmental agency or
body is or will be pending or, to the knowledge of the Osage Parties,
threatened, which might materially and adversely affect the performance of this
Agreement or the consummation of the transactions contemplated in the Plan and
as described in the Prospectus, or which might result in any material adverse
effect on the business, financial condition, results of operations, affairs or
prospects of the Osage Parties taken as a whole, or which would materially
affect its respective properties and assets.
y. The Osage Parties have received an opinion of their counsel,
Xxxxxxx Spidi & Xxxxx, PC., Washington, D.C. ("Xxxxxxx"), with respect to the
federal income tax consequences of the Conversion, and an opinion of BKD with
respect to the Oklahoma state income tax consequences of the Conversion; the
federal tax opinion of Xxxxxxx is accurately summarized in the Conversion
Application and the Prospectus. The facts and representations upon which such
opinions are based are truthful, accurate and complete, and no Osage Party will
take any action inconsistent therewith.
z. No default exists, and no event has occurred which, with
notice or lapse of time or both, would constitute a default, on the part of any
Osage Party 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 Osage Party or by
which any of them or any of their respective property is bound or affected
which, in any such case, is material to the Osage Parties taken as a whole; such
agreements are in full force and effect and no other party to any such agreement
has instituted or, to the knowledge of the Osage Parties, threatened any action
or proceeding wherein the Osage Parties or any subsidiary thereof would or might
be alleged to be in default thereunder.
aa. Subsequent to the date the Registration Statement is
declared effective by the Commission and prior to the Closing Date, except as
otherwise may be indicated or contemplated in the Registration Statement, none
of the Osage Parties has or will have issued any securities or incurred any
liability or obligation, direct or contingent, for borrowed money, except
borrowings from the same or similar sources indicated in the Prospectus in the
ordinary course of its business. For purposes of this Section 4.1(aa),
obligations for borrowed money do not include deposits.
bb. The Osage Parties have filed all federal, state and
local tax returns required to be filed and have made timely payment of all taxes
due and payable in respect of such returns and no deficiency has been asserted
with respect thereto by any taxing authority.
cc. Except as disclosed in the Prospectus with respect to
the Tax Qualified Plans, none of the Osage Parties has made any payment of funds
of the Osage Parties as a loan for the purchase of the Shares or made any other
payment of funds prohibited by law, and no funds have been set aside to be used
for any payment prohibited by law.
dd. Prior to the Conversion, (x) the Bank had authorized
capital stock consisting of ___million (__,000,000) shares of common stock,
_____ (___) of which were outstanding, and
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___ million (__,000) shares of preferred stock, none of which were outstanding,
(y) Osage had authorized capital stock consisting of ____ (____,000,000) shares
of common stock, _______ of which were publicly held and _______ of which were
held by the MHC, and ___ million (1,000,000) shares of preferred stock, none of
which were outstanding and (z) the MHC was not authorized to issue capital
stock. None of the Osage Parties has: (i) other than as described in the
Prospectus issued any securities within the last 18 months (except for notes to
evidence other bank loans and reverse repurchase agreements); (ii) had any
material dealings within the 12 months prior to the date hereof with any member
of the NASD, or any person related to or associated with such member, other than
discussions and meetings relating to the Offering and routine purchases and
sales of securities for or from its portfolio; (iii) entered into a financial or
management consulting agreement relating to the sale of stock, except as
contemplated hereunder; or (iv) engaged any intermediary between the Selling
Agent and any Osage Party in connection with any offering of shares of its
capital stock, and no person is being compensated in any manner for such
service. Appropriate arrangements have been made for placing the funds received
from subscriptions for Shares in a special interest-bearing account with the
Bank until all Shares are sold and paid for, with provision for refund to the
purchasers in the event that the Offering is not completed for whatever reason
or for delivery to the Company if all Shares are sold.
ee. None of the Osage Parties is required to be registered
under the Investment Company Act of 1940, as amended.
ff. All Sales Information used by the Company in connection
with the Offering that is required by the Conversion Regulations to be filed has
been filed with and approved by the applicable regulatory authority.
gg. Except for information provided in writing to the Osage
Parties by the Selling Agent related to the Selling Agent for use in the
Prospectus and appearing under the heading "The Stock Offering-Plan of
Distribution/Marketing Arrangements", the Osage Parties have not relied upon the
Selling Agent or its legal or other advisors for any legal, tax or accounting
advice in connection with the Offering or the Conversion.
hh. None of the Osage Parties nor any properties owned or
operated by the Osage Parties, is in violation of or liable under any
Environmental Law (as defined below), except for such violations or liabilities
that, individually or in the aggregate, would not have a material adverse effect
on the financial condition, results of operations or business of the the Osage
Parties, taken as a whole. There are no actions, suits or proceedings, or
demands, claims, notices or investigations (including, without limitation,
notices, demand letters or requests for information from any environmental
agency) instituted or pending or, to the knowledge of the Osage Parties,
threatened relating to the liability of any property owned or operated by the
Osage Parties, under any Environmental Law. For purposes of this subsection, the
term "Environmental Law" means any federal, state, local or foreign law,
statute, ordinance, rule, regulation, code, license, permit, authorization,
approval, consent, order, judgment, decree, injunction or agreement with any
regulatory authority relating to (i) the protection, preservation or restoration
of the environment (including, without limitation, air, water, vapor, surface
water, groundwater, drinking water supply, surface soil, subsurface soil, plant
and animal life or any other natural resource), and/or (ii) the use, storage,
recycling, treatment, generation, transportation, processing, handling,
labeling, production, release or disposal of any substance presently listed,
defined, designated or classified as hazardous, toxic, radioactive or dangerous,
or otherwise regulated, whether by type or by quantity, including any material
containing any such substance as a component.
13
ii. All of the loans represented as assets on the most
recent financial statements or selected financial information 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 Regulation 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 on the business,
financial condition, results of operations, affairs or prospects of the Osage
Parties taken as a whole.
jj. All documents made available to or delivered or to be made
available to or delivered by any Osage Party or their representatives in
connection with the issuance and sale of the Shares, including records of
account holders, depositors and borrowers of the Bank, or in connection with the
Selling Agent's exercise of due diligence, except for those documents that were
prepared by parties other than any Osage Party or their representatives, to the
knowledge of the Osage Parties, were on the dates on which they were delivered,
or will be on the dates on which they are to be delivered, true, complete and
correct in all material respects.
kk. No approval of any regulatory or supervisory or other
public authority is required in connection with the execution and delivery of
this Agreement or the issuance of the Shares, except for the approval of the
Commission and the OTS, and any necessary qualification, notification,
registration or exemption under the securities or blue sky laws of the various
states in which the Shares are to be offered, and except as may be required
under the rules and regulations of the National Association of Securities
Dealers, Inc. ("NASD").
ll. The Osage Parties are and will be, as the case may be, in
compliance in all material respects with the applicable financial record-keeping
and reporting requirements of the Currency and Foreign Transactions Reporting
Act of 1970, as amended, and the regulations and rules thereunder.
mm. The records used by the Osage Parties to determine the
identity of Eligible Account Holders and Supplemental Eligible Account Holders
are accurate and complete in all material respects.
nn. The facts and representations provided to Xxxxxxx by the
Osage Parties and upon which Xxxxxxx will base its opinion under Section 8(b)(i)
are and will be truthful, accurate and complete.
oo. The Osage Parties maintain a system of internal
accounting controls sufficient to provide reasonable assurance that (A)
transactions are executed in accordance with management*s general or specific
authorizations, (B) transactions are recorded as necessary to permit preparation
of financial statements in conformity with generally accepted accounting
principles and to maintain accountability for assets, (C) access to assets is
permitted only in accordance with management*s general or specific
authorization, and (D) the recorded accounts or assets is compared with the
existing assets at reasonable intervals and appropriate action is taken with
respect thereto. The books, records and accounts and systems of internal
accounting control of the Osage Parties comply in all material respects with the
requirements of Section 13(b)(2) of the 1934 Act. The Parties maintain
"disclosure controls and procedures" (as defined in Rule 13a- 14(c) under the
Exchange Act) that are effective in ensuring that the information it will be
required to disclose in the reports it files or submits under the Exchange Act
is accumulated and communicated to Osage*s and the Company's management
(including their respective chief
14
executive officer and chief financial officer) in a timely manner and recorded,
processed, summarized and reported within the periods specified in the
Commission*s rules and forms.
pp. The Osage Parties carry, or are covered by, insurance
in such amounts and covering such risks as is adequate for the conduct of their
respective businesses and the value of their respective properties and as is
customary for companies engaged in similar industries. All policies of insurance
insuring the Osage Parties or any of their respective businesses, assets,
employees, officers and directors are in full force and effect, and the Osage
Parties are in compliance with the terms of such policies in all material
respects. None of the Osage Parties has received notice from any insurer or
agent of such insurer that substantial capital improvements or other
expenditures shall have to be made in order to continue such insurance. There
are no claims under any such policy or instrument as to which an insurance
company is denying liability or defending under a reservation of rights clause
where absence of coverage would have a material adverse effect on the business,
financial condition, results of operations, affairs or prospects of the combined
institution taken as a whole.
qq. To the knowledge of the Osage Parties, there are no
affiliations or associations between any member of the NASD and any of the
Company's officers, directors, 5% or greater security holders or beneficial
owners of unregistered equity securities that were acquired within 180 days
prior to ______, 2006, except as set forth in the Registration Statement.
rr. The Osage Parties have taken all actions necessary to
obtain on the Closing Date a Blue Sky Memorandum from Xxxxxxx which sets forth
those states in which the shares of Common Stock are registered or qualified for
sale, or exempt from any such registration or qualification of sale.
ss. Any certificate signed by an officer of any Osage Party
and delivered to the Selling Agent or their counsel that refers to this
Agreement shall be deemed to be a representation and warranty by such Osage
Party to the Selling Agent as to the matters covered thereby with the same
effect as if such representation and warranty were set forth herein.
4.2 Representations and Warranties of the Selling Agent. The
----------------------------------------------------
Selling Agent represents and warrants to the Osage Parties as follows:
a. The Selling Agent is registered as a broker-dealer with the
Commission and is a member of the NASD.
b. The Selling Agent is validly existing and in good standing
as a corporation under the laws of the State of New York with the corporate
power and authority to provide the services to be furnished to the Osage Parties
hereunder.
c. The execution and delivery of this Agreement and the
consummation of the transactions herein contemplated have been duly and validly
authorized by all necessary corporate action on the part of the Selling Agent,
and this Agreement is a legal, valid and binding obligation of the Selling
Agent, enforceable in accordance with its terms, except to the extent that
rights to indemnity hereunder may be limited under applicable law and subject to
bankruptcy, insolvency, reorganization or other laws related to or affecting the
enforcement of creditors' rights generally and equitable principles limiting the
right to obtain specific enforcement or similar equitable relief.
15
d. The Selling Agent and, to the Selling Agent's knowledge,
its employees, agents and representatives who shall perform any of the services
required hereunder to be performed by the Selling Agent shall be duly authorized
and shall have all licenses, approvals and permits necessary to perform such
services, and Selling Agent is a registered selling agent in each of the
jurisdictions in which the Shares are to be offered by the Company in reliance
upon the Selling Agent as a registered selling agent as set forth in the blue
sky memorandum prepared with respect to the Offering.
e. The execution and delivery of this Agreement by the
Selling Agent, the fulfillment of the terms set forth herein and the
consummation of the transactions herein contemplated shall not violate or
conflict with the corporate charter or bylaws of the Selling Agent 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 the Selling Agent is
bound or under any governmental license or permit or any law, administrative
regulation, authorization, approval or order or court decree, injunction or
order applicable to it.
f. Any funds received by the Selling Agent to purchase Shares
in the Syndicated Community Offering will be handled in accordance with Rule
15c2-4 under the 1934 Act, to the extent applicable.
SECTION 5. Additional Covenants of the Osage Parties. The
--------------------------------------------
Osage Parties hereby jointly and severally covenant with the Selling Agent as
follows:
a. The Osage Parties will not file any amendment or supplement
to the Registration Statement, the Prospectus or any Reorganization Application
without written notice to the Selling Agent of its intention to do so and
providing the Selling Agent and its counsel an opportunity to review such
amendment or supplement, nor will any Osage Party file any such amendment or
supplement to which the Selling Agent or its counsel shall reasonably object.
b. The Osage Parties will use their best efforts to cause each
Reorganization Application not heretofore approved to be approved by the
applicable regulatory authority and will promptly upon receipt of any
information concerning the events listed below notify the Selling Agent and its
counsel in writing: (i) of the approval of any Reorganization Application not
heretofore approved; (ii) 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; (iii) of the receipt of any comments from the
Commission to the Registration Statement or the Prospectus, (iv) of the request
by the OTS or any other governmental entity for any amendment or supplement to
the Registration Statement, the Prospectus or any Reorganization Application or
for additional information; (v) of the issuance by the Commission, the OTS or
any other governmental entity of any order or other action suspending the
Conversion or the use of the Registration Statement or the Prospectus or any
other filing of the Company and the Bank under the Conversion Regulations, the
HOLA, the 1933 Act, 1933 Act Regulations or other applicable law, or the threat
of any such action; (vi) of the issuance by the Commission, the OTS or any other
state governmental authority of any stop order suspending the effectiveness of
the Registration Statement or any Reorganization Application or of the
initiation or threat of any proceedings for such purpose; or (vii) of the
occurrence of any event mentioned in paragraph (f) below. The Osage Parties will
make every reasonable effort to prevent the issuance by the Commission, the OTS
or any other governmental authority of any such order and, if any such order
shall at any time be issued, to obtain the lifting
16
thereof at the earliest possible time. The Osage Parties will provide copies of
the foregoing comments, requests and orders to the Selling Agent upon receipt of
such items. The Osage Parties will cause any Permitted Free Writing Prospectus
required to be filed with the Commission to be timely filed with the Commission
in accordance with the 1933 Act Regulations.
c. The Osage Parties will promptly deliver to the Selling
Agent and to its counsel two conformed copies of each of the following
documents, with all exhibits: each Reorganization Application as originally
filed and each amendment or supplement thereto and the Registration Statement as
originally filed and each amendment thereto. In addition, the Osage Parties will
also promptly deliver to the Selling Agent such number of copies of the closing
documents with respect to the Conversion and the Offering as the Selling Agent
may reasonably request.
d. The Osage Parties will furnish to the Selling Agent, from
time to time during the period when the Prospectus is required to be delivered
under federal or state securities laws or regulations or the applicable rules
and regulations of any other governmental entity, such number of copies of the
Prospectus (as amended or supplemented) as the Selling Agent may reasonably
request for the purposes contemplated by such federal or state securities laws
or regulations or the applicable rules and regulations of any other governmental
entity. The Company authorizes the Selling Agent to use the Prospectus (as
amended or supplemented) for any lawful manner in connection with the sale of
the Shares.
e. The Osage Parties will comply with any and all terms,
conditions, requirements and provisions with respect to the Conversion and the
transactions contemplated thereby imposed by the Commission, the OTS, any state
regulatory or Blue Sky authority or any other governmental entity, including the
terms, conditions, requirements and provisions contained in the Conversion
Regulations, the 1933 Act, the 1933 Act Regulations, the 1934 Act and the rules
and regulations, as amended, of the Commission promulgated under the 1934 Act
(the "1934 Act Regulations") including, without limitation, Rule 10b-5 under the
1934 Act, in each case as from time to time in force, so far as necessary to
permit the continuance of sales or dealing in the Common Shares during such
period in accordance with the provisions hereof and the Prospectus. .
f. If, at any time during the period when the Prospectus is
required to be delivered, any event relating to or affecting any Osage Party
shall occur, as a result of which it is necessary or appropriate, in the opinion
of counsel for the Osage Parties, to amend or supplement the Registration
Statement or the Prospectus in order to make the Registration Statement or
Prospectus not misleading in light of the circumstances existing at the time it
is delivered to a purchaser, the Osage Parties will, at their expense, forthwith
prepare, file with the Commission and furnish to the Selling Agent a reasonable
number of copies of an amendment or amendments of, or a supplement or
supplements to, the Registration Statement or Prospectus (in form and substance
reasonably satisfactory to the Selling Agent and its counsel after a reasonable
time for review) which will amend or supplement the Registration Statement or
Prospectus so that as amended or supplemented it will not contain an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in light of the circumstances existing at the
time the Prospectus is delivered to a purchaser, not misleading. For the purpose
of this Agreement, the Osage Parties each will timely furnish to the Agent such
information with respect to itself as the Selling Agent may from time to time
reasonably request.
g. The Company will not sell or issue, contract to sell or
17
otherwise dispose of, for a period of 180 days after the Closing Date, without
the prior written consent of the Selling Agent, any shares of, or any securities
convertible into or exercisable for shares of, Common Stock other than in
connection with any plan or arrangement described in the Prospectus.
h. During the period in which the Company's Common Stock is
registered under the 1934 Act, the Company will furnish to its stockholders as
soon as practicable after the end of each fiscal year an annual report
(including a consolidated balance sheet and consolidated statements of income,
stockholders' equity and cash flows of the Company and its subsidiaries as at
the end of and for such year, certified by independent public accountants in
accordance with the 1934 Act and Regulation S-X under the 0000 Xxx) and make
available as soon as practicable after the end of each of the first three
quarters of each fiscal year (beginning with the first fiscal quarter ending
after the Closing Date) financial information of the Company and its
subsidiaries for such quarter in reasonable detail.
i. During the period of three years from the date hereof, the
Company will furnish to the Selling Agent: (i) promptly after it becomes
available, a copy of each report of the Company furnished generally to
stockholders of the Company or furnished to or filed with the Commission under
the 1934 Act or any national securities exchange or system on which any class of
securities of the Company is listed or quoted (including, but not limited to,
reports on Forms 10-K, 10-Q and 8-K and all proxy statements and annual reports
to stockholders), a copy of each other report of the Company mailed to its
stockholders or filed with the Commission or any other supervisory or regulatory
authority or any national securities exchange or system on which any class of
securities of the Company is listed or quoted and each press release and
material news item and article released by the Company or its subsidiaries, and
(ii) from time to time, such other public information concerning the Company and
its subsidiaries as the Selling Agent may reasonably request.
j. The Company and the Bank will use the net proceeds from
the sale of the Shares substantially in the manner set forth in the Prospectus
under the caption "Use the Proceeds."
k. Other than as permitted by the Conversion Regulations, the
HOLA, the 1933 Act, the 1933 Act Regulations and the laws of any jurisdiction in
which the Shares are qualified for sale, neither the Company nor the Bank will
distribute any Prospectus or other Sales Information or offering materials in
connection with the offer and sale of the Shares.
l. The Company will make generally available to its security
holders as soon as practicable, but not later than 60 days after the close of
the period covered thereby, an earnings statement (in form complying with the
provisions of Rule 158 of the 1933 Act 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 such Rule 158) of the
Registration Statement.
m. The Company will register the Common Stock under Section
12(g) of the 1934 Act effective on or prior to the Closing Date. The Company
shall maintain the effectiveness of such registration for not less than three
years from the time of effectiveness or such shorter period as may be required
by the OTS.
n. The Company will use its best efforts to obtain approval
for, effective on or
18
prior to the Closing Date, and maintain quotation of the Common Stock on the
Nasdaq Global Market.
o. The Osage Parties will maintain appropriate arrangements
for depositing all funds received from persons delivering orders to purchase
Shares in the Subscription and Community Offerings on an interest-bearing basis
at the rate described in the Prospectus until the Closing Date or until the
Offering is terminated in accordance with the Plan and as described in the
Prospectus. The Osage Parties will maintain such records of all funds received
to permit the funds of each subscriber to be separately insured by the FDIC and
to enable the Company to make 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.
p. The Osage Parties will take such actions and furnish such
information as are reasonably requested by the Selling Agent in order for the
Selling Agent to ensure compliance with Article III, Section 1, of the NASD's
Rules of Fair Practice and the NASD's "Free-Riding and Withholding
Interpretation."
q. The Osage Parties will conduct their respective 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 OTS.
r. The Osage Parties will not amend the Plan without the
Selling Agent's prior written consent, which consent shall not be unreasonably
withheld, in any manner that, in the opinion of the Selling Agent, would affect
the sale of the Shares or the terms of this Agreement.
s. The Osage Parties will use all reasonable efforts to comply
with, or cause to be complied with, the conditions precedent to the several
obligations of the Selling Agent specified in Section 8 hereof.
t. Prior to the Closing Date, the Osage Parties shall have
received approval of each Reorganization Application required to consummate the
Conversion.
u. The Osage Parties shall assist the Selling Agent, if
necessary, in connection with the allocation of the Shares in the event of an
oversubscription and shall provide the Selling Agent with any information
necessary to assist the Company in allocating the Shares in such event and such
information shall be accurate and reliable in all material respects.
v. Prior to the Closing Date, the Osage Parties will inform
the Selling Agent of any event or circumstances of which it is aware as a result
of which the Registration Statement and/or Prospectus, as then amended or
supplemented, would contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein not
misleading.
w. The Company will not deliver the Shares until the Osage
Parties have satisfied or caused to be satisfied each condition set forth in
Section 8 hereof, unless such condition is waived in writing by the Selling
Agent.
x. The Company shall notify the Selling Agent when funds
shall have been received for the minimum number of Shares set forth in the
Prospectus.
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y. Subsequent to the date the Registration Statement is
declared effective by the Commission and prior to the Closing Date, except as
otherwise may be indicated or contemplated therein or set forth in an amendment
or supplement thereto, none of the Osage Parties will have: (i) issued any
securities or incurred any liability or obligation, direct or contingent, for
borrowed money, except borrowings from the same or similar sources indicated in
the Prospectus in the ordinary course of its business, or (ii) entered into any
transaction which is material in light of the business and properties of Osage
Parties, taken as a whole.
z. The Osage Parties shall comply with any and all terms,
conditions, requirements and provisions with respect to the Offering and the
transactions contemplated thereby imposed by the OTS, the Commission, the 1933
Act and the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations to
be complied with subsequent to the Closing Date. The Company will comply with
all provisions of all undertakings contained in the Registration Statement.
aa. The Company shall comply with all applicable provisions
of the Xxxxxxxx-Xxxxx Act of 2002 and all applicable rules, regulations,
guidelines and interpretations promulgated thereunder by any governmental
authority.
SECTION 6. Payment of Expenses. Whether or not the Conversion
-------------------
is completed or the sale of the Shares by the Company is consummated, the Osage
Parties jointly and severally agree to pay all expenses incident to the
performance of the obligations of any Osage Party under this Agreement,
including the following: (i) the preparation, printing, issuance and delivery of
the certificates evidencing the Shares sold to the purchasers in the Offering
and the printing and delivery of all other documents applicable to the
Conversion and the Offering; (ii) the fees and disbursements of the Osage
Parties' counsel, accountants and other advisors; (iii) the qualification or
exemption from qualification of the Shares under all applicable securities or
Blue Sky laws, including filing fees and the reasonable fees and disbursements
of counsel in connection therewith and in connection with the preparation of a
Blue Sky Survey concerning such jurisdictions as the Selling Agent may
reasonably designate; (iv) the printing and mailing costs of the Offering,
including the delivery to the Selling Agent in such quantities as the Selling
Agent shall reasonably request of copies of the Registration Statement, the
Prospectus and the Reorganization Applications as originally filed and as
amended or supplemented and all other documents in connection with the
Conversion and this Agreement; (v) the filing fees incurred in connection with
the review of the Registration Statement, the Reorganization Applications and
any other application, form or filing by the Commission and the OTS; (vi) the
filing fees and the fees and disbursements of counsel to the Selling Agent
incurred in connection with the review of the Offering by the NASD; (vii) the
fees for listing the Shares on the Nasdaq Global Market; (viii) the fees and
expenses relating to the Independent Valuation; (ix) the fees and expenses
relating to proxy solicitation, advertising expenses, temporary personnel
expenses, expenses related to the Stock Information Center to be established,
investor meeting expenses and other miscellaneous expenses relating to the
marketing of the Shares; and (x) the fees and charges of any transfer agent,
registrar or other agent. In the event that the Selling Agent incurs any such
expenses on behalf of the Osage Parties, the Osage Parties will pay or reimburse
the Selling Agent 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 Section 1(d).
20
SECTION 7. Indemnification and Contribution.
--------------------------------
a. The Osage Parties jointly and severally agree to indemnify
and hold harmless the Selling Agent, its officers, directors, employees and
agents and each person, if any, who controls the Selling Agent within the
meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act, against
any loss, liability, claim, damage, and expense whatsoever (which shall include,
but not be limited to amounts incurred in investigating, preparing, or defending
against any litigation, commenced or threatened, or any claim or investigation
whatsoever and any and all amounts paid in settlement of any claim or
litigation), as and when incurred, arising out of, based upon, or in connection
with (i) any untrue statement or alleged untrue statement of a material fact or
any omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, contained in
(A) any preliminary prospectus, the Registration Statement, the Prospectus, any
Permitted Free Writing Prospectus, any "free writing prospectus" (as defined in
Rule 405 of the 1933 Act Regulations) that is not a Permitted Free Writing
Prospectus used by a Osage Party in violation of Section 4.1(b) of this
Agreement, or any amendment or supplement thereto or in any document
incorporated by reference therein or required to be delivered with any
preliminary prospectus or the Prospectus or (B) in any application or other
document or communication filed with the Commission or any securities exchange
("Securities Communication") or (C) in any application or other document,
advertisement or communication prepared, made or executed by or on behalf of any
Osage Party or based upon written information or statements furnished or made by
any Osage Party or its representatives (including counsel) whether or not filed
in any jurisdiction in order to register or qualify any or all of the Shares
under the securities law thereof (the "Sales Information"); unless such
statement or omission was made in reliance upon and in conformity with written
information concerning the Selling Agent or the compensation of the Selling
Agent furnished to the Company by or on behalf of the Selling Agent expressly
for inclusion in any preliminary prospectus, the Registration Statement, or the
Prospectus, or any amendment or supplement thereto, or in any Securities
Communication or Sales Information, as the case may be, or (ii) any breach of
any representation, warranty, covenant, or agreement of the Osage Parties
contained in this Agreement. For purposes of this section, the term "expense"
shall include, but not be limited to, counsel fees and costs, court costs,
out-of-pocket costs and compensation for the time spent by the Selling Agent's
directors, officers and employees according to his or her normal hourly billing
rates. The indemnification provisions shall also extend to all affiliates of the
Selling Agent, their respective directors, officers, employees, legal counsel,
agents and controlling persons within the meaning of the federal securities
laws. The foregoing agreement to indemnify shall be in addition to any liability
the Osage Parties may otherwise have to the Selling Agent or the persons
entitled to the benefit of these indemnification provisions.
b. The Selling Agent agrees to indemnify and hold harmless
the Company, its directors, officers who signed the Registration Statement, and
each person, if any, who controls the Company 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 and expense described in the indemnity contained in
subsection (a) above, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement or the Prospectus in reliance upon and in conformity with written
information about the Selling Agent, or the compensation of the Selling Agent,
furnished to the Company by the Selling Agent expressly for use in the
Registration Statement or the Prospectus and appearing under the heading "The
Stock Offering-Plan of Distribution/Marketing Arrangements."
21
c. An indemnified party shall give prompt notice to the
indemnifying party if any action, suit, proceeding or investigation is commenced
in respect of which indemnity may be sought hereunder, but failure to so notify
an indemnifying party shall not relieve the indemnifying party from its
obligations to indemnify hereunder. If it so elects within a reasonable time
after receipt of such notice, an indemnifying party may assume the defense of
such action, including the employment of counsel satisfactory to the indemnified
parties, and payment of all expenses of the indemnified party in connection with
such action. Such indemnified party or parties shall have the right to employ
its or their own counsel (but only one counsel) in any such case, but the fees
and expenses of such counsel shall be at the expense of such indemnified party
or parties unless the employment of such counsel shall have been authorized in
writing by the indemnifying party in connection with the defense of such action
or the indemnifying party shall not have promptly employed counsel satisfactory
to such indemnified party or parties or such indemnified party or parties shall
have reasonably concluded that there may be one or more legal defenses available
to it or them or to other indemnified parties which are different from or
additional to those available to one or more of the indemnifying parties, in any
of which events such fees and expenses shall be borne by the indemnifying party
and the indemnifying party shall not have the right to direct the defense of
such action on behalf of the indemnified party or parties. The Osage Parties
shall be liable for any settlement of any claim against the Selling Agent (or
its directors, officers, employees, affiliates or controlling persons), made
with the Osage Parties' written consent, which consent shall not be unreasonably
withheld. The Osage Parties shall not, without the written consent of the
Selling Agent, settle or compromise any claim against the Selling Agent based
upon circumstances giving rise to an indemnification claim against the Osage
Parties hereunder unless such settlement or compromise provides that the Selling
Agent and the other indemnified parties shall be unconditionally and irrevocably
released from all liability in respect of such claim.
d. In order to provide for just and equitable contribution,
if a claim for indemnification pursuant to these indemnification provisions is
made but it is found in a final judgment by a court that such indemnification
may not be enforced in such case, even though the express provisions hereof
provide for indemnification in such case, then the Osage Parties, on the one
hand, and the Selling Agent, on the other hand, shall contribute to the amount
paid or payable by such indemnified persons as a result of such loss, liability,
claim, damage and expense in such proportion as is appropriate to reflect the
relative benefits received by the Osage Parties, on the one hand, and the
Selling Agent, on the other hand, from the Offering, and also the relative fault
of the Osage Parties, on the one hand, and the Selling Agent, on the other hand,
in connection with the statements, acts or omissions which resulted in such
loss, liability claim, damage and expense, and any other relevant equitable
considerations shall also be considered. No person found liable for a fraudulent
misrepresentation or omission shall be entitled to contribution from any person
who is not also found liable for such fraudulent misrepresentation or omission.
Notwithstanding the foregoing, the Selling Agent shall not be obligated to
contribute any amount hereunder that exceeds the total amount of the fees paid
to the Selling Agent hereunder.
e. The indemnity and contribution agreements contained herein
are in addition to any liability which the Osage Parties may otherwise have to
the Selling Agent.
f. Neither termination nor completion of the engagement of the
Selling Agent nor any investigation made by or on behalf of the Selling Agent
shall affect the indemnification, obligations of the Osage Parties or the
Selling Agent hereunder, which shall remain and continue to be operative and in
full force and effect.
22
SECTION 8. Conditions of the Selling Agent's Obligations. The
---------------------------------------------
obligations of the Selling Agent hereunder as to the Shares to be delivered at
the Closing Date are subject, in the discretion of the Selling Agent, to the
condition that all representations and warranties and other statements of the
Osage Parties herein are, at and as of the commencement of the Offering and at
and as of the Closing Date, true and correct in all material respects, the
condition that the Osage Parties shall have performed in all material respects
all of their respective obligations hereunder to be performed on or before such
dates, and to the following conditions:
a. At the Closing Date, the Osage Parties shall have conducted
the Conversion in all material respects in accordance with the Plan, the
Conversion Regulations and all other applicable laws, regulations, decisions and
orders, including all terms, conditions, requirements and provisions precedent
to the Offering imposed upon them by the OTS.
b. The Registration Statement shall have been declared
effective by the Commission and cleared for use by the OTS not later than 5:30
p.m. on the date of this Agreement, or with the written consent of the Selling
Agent at a later time and date; and at the Closing Date no stop order suspending
the effectiveness of the Registration Statement or the consummation of the
Conversion shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission or any state securities or Blue Sky
authority, and no order or other action suspending the effectiveness of the
Prospectus or the consummation of the Conversion shall have been issued or
proceedings therefore initiated or threatened by the OTS.
c. At the Closing Date, the Selling Agent shall have received:
(i) The favorable opinion, dated as of the Closing Date
addressed to the Selling Agent and for its and its counsel's benefit, of
Xxxxxxx, as to issues of federal, Maryland and New York law set forth below. The
opinion of Xxxxxxx shall be in form and substance to the effect that:
(1) Osage is validly existing as a corporation under
the laws of the United States of America, the Bank is validly existing under the
laws of the United States as a federal savings bank in stock form, and the MHC
is duly organized and validly existing under the laws of the United States as a
mutual holding company; and each has the corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the
Registration Statement and Prospectus.
(2) The Company has been duly incorporated and validly
existing as a corporation in good standing under the laws of Maryland, and has
the corporate power and authority to own, lease and operate its properties and
to conduct its business following the Conversion, as described in the
Registration Statement and Prospectus. Upon consummation of the Offering, the
Company will be a registered savings and loan holding company under the HOLA.
(3) Each of the Osage Parties is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is and, following consummation of the
Conversion, will be required, unless the failure to be so qualified in one or
more of such jurisdictions would not have a material adverse effect on the
business, the financial condition or the results of operations, affairs or
prospects of the Osage Parties taken as a whole.
(4) All of the outstanding capital stock of the Bank is
duly authorized
23
and validly issued, fully paid and non-assessable and, upon consummation of the
Conversion, will be owned by the Company, free and clear of any liens,
encumbrances, claims or other restrictions.
(5) The Bank is a member of the FHLB-Topeka. The deposit
accounts of the Bank are insured by the FDIC up to the maximum amount allowed
under law and to Xxxxxxx'x knowledge no proceedings for the termination or
revocation of such insurance are pending or threatened;
(6) The activities of each Osage Party prior to and
following the Conversion as described in the Registration Statement and
Prospectus are permitted to subsidiaries of a federally chartered savings
association or a savings and loan holding company, by the rules, regulations,
policies and practices of the OTS and any other federal or state authority
having jurisdiction over such matters.
(7) Upon consummation of the Conversion, the authorized
equity capital of the Company will consist of 20,000,000 shares of common stock
and 5,000,000 shares of preferred stock, and the issued and outstanding equity
capital of the Company will be consistent with that set forth in the
Registration Statement and the Prospectus under the caption "Capitalization;",
no shares of the Company's common stock, or securities exercisable into or
exchangeable for common stock, will have been issued prior to the Closing; at
the time of the Conversion the Shares will have been duly and validly authorized
for issuance, and when issued and delivered by the Company pursuant to the Plan,
will be duly authorized and validly issued and fully paid and nonassessable; the
issuance of the Shares is not subject to any preemptive rights. Upon the
issuance of the Shares, against payment therefor in accordance with the
Prospectus, the purchasers will have full legal title to the Shares, subject to
such claims as may be asserted against the purchasers thereof by third-party
claimants of such purchasers.
(8) Each Reorganization Application, including the Plan,
has been approved by the applicable regulatory authority pursuant to the
Conversion Regulations and the HOLA and the Prospectus has been authorized for
use by the OTS, and no action has been taken or is pending or, to Xxxxxxx'x
knowledge, threatened by the OTS, the Commission, the FDIC or any state
authority to revoke such approvals and authorizations, and to Xxxxxxx'x
knowledge, no person has sought to obtain regulatory or judicial review of the
final action of the OTS approving the Plan, the Reorganization Applications or
the Prospectus..
(9) Each Reorganization Application, including the Plan,
as amended or supplemented, if amended or supplemented, as filed with the
applicable regulatory authority complied as to form in all material respects
with the requirements of the Conversion Regulations or the HOLA. At the time the
Registration Statement became effective the Prospectus (other than the financial
statements, stock valuation information and other financial and statistical data
included therein, as to which no opinion need be rendered) complied as to form
in all material respects with the requirements of the Conversion Regulations.
(10) The OTS's approval of the Plan remains in full force
and effect; the Osage Parties have conducted the Conversion in all material
respects in accordance with the requirements of the Conversion Regulations,
federal law, all other applicable regulations, decisions and orders and the
Plan, including all material applicable terms, conditions, requirements and
conditions precedent to the Conversion imposed by the OTS; the Reorganization
Applications and Plan complies in all material respects with all applicable
federal law, rules, regulations, decisions
24
and orders, including but not limited to the Conversion Regulations and the
HOLA; no order has been issued by the OTS to suspend the Conversion and no
action for such purpose has been instituted or, to Xxxxxxx'x knowledge,
threatened by the OTS; and, to Xxxxxxx'x knowledge, no person has sought to
obtain review of the final action of the OTS in approving any Reorganization
Application or the Plan.
(11) The Osage Parties each have full corporate power
and authority to enter into this Agreement and to consummate the transactions
contemplated thereby and by the Plan and the Reorganization Applications; this
Agreement and the consummation of the transactions contemplated hereby has been
duly authorized, executed and delivered by the Osage Parties and is the legal,
valid and binding agreement of the Osage Parties, subject, as to enforceability,
to bankruptcy, insolvency, reorganization, moratorium, conservatorship,
receivership and other laws of general applicability relating to or affecting
creditors' rights or the rights of creditors of depository institutions the
deposits of which are insured by the FDIC, to general principles of equity
(whether considered in an action at law or in equity) and to the extent that
rights to indemnity and contribution thereunder may be limited under applicable
laws or under considerations of public policy.
(12) The Registration Statement is effective under the
1933 Act, any required filing of the Prospectus and any Permitted Free Writing
Prospectus pursuant to Rule 424(b) or Rule 433 has been made within the time
period required by Rule 424(b) or Rule 433, and no stop order suspending
effectiveness of the Registration Statement has been issued under the 1933 Act
and, to Xxxxxxx'x knowledge, no proceedings therefor have been initiated or
threatened by the Commission.
(13) All conditions imposed by the OTS in connection with
its approvals of the Reorganization Applications have been satisfied, other than
any post-closing filings and submissions, and no further approval,
authorization, consent or other order of any federal or state board or body is
required in connection with the execution and delivery of this Agreement, the
issuance of the Shares and the consummation of the Conversion.
(14) The Registration Statement and the Prospectus and
any amendments or supplements thereto, as of their respective effective or issue
dates (other than the financial statements and other financial and statistical
data included therein, as to which no opinion need be rendered) comply as to
form in all material respects with the requirements of the 1933 Act and the 1933
Act Regulations. The information in the Registration Statement and Prospectus
under the captions "Dividend Policy," "Regulation," "Taxation," "Restrictions on
Acquisition of Osage Bancshares, Inc." and "Description of Capital Stock," to
the extent that it constitutes matters of law, summaries of legal matters,
documents or proceedings or legal conclusions, has been reviewed by Xxxxxxx and
is correct in all material respects. The descriptions in the Prospectus of
statutes or regulations are accurate summaries and fairly present the
information required to be shown.
(15) The terms and provisions of the Common Stock conform
in all material respects to the description thereof contained in the Prospectus,
and the form of certificate used to evidence the Shares is in due and proper
form.
(16) There are no legal or governmental proceedings
pending or, to
25
Xxxxxxx'x knowledge, threatened against any Osage Party which are required to be
disclosed in the Registration Statement and Prospectus other than those
disclosed therein, and all pending legal and governmental proceedings to which
any Osage Party is the subject which are not disclosed in the Registration
Statement, including ordinary routine litigation, are, considered in the
aggregate, not material.
(17) There are no material contracts, indentures,
mortgages, loan agreements, notes, leases or other instruments required to be
described or referred to in the Reorganization Applications, Registration
Statement and Prospectus or to be filed as exhibits thereto other than those
described or referred to therein or filed as exhibits thereto, and the
description thereof or references thereto are correct in all material respects
and hereby presents the information required to be shown.
(18) The Osage Parties have obtained all material
licenses, permits and other governmental authorizations currently required for
the conduct of their respective businesses, as described in the Registration
Statement and Prospectus and all such licenses, permits and other governmental
authorizations are in full force and effect; and the Osage Parties are in all
material respects complying therewith.
(19) All corporate acts and other proceedings required
to be taken by or on the part of the Osage Parties to adopt and approve the Plan
have been properly taken, including the votes of the Board of Directors of the
MHC, the stockholders of Osage, and the members of the MHC.
(20) The Company's articles of incorporation and bylaws
comply in all material respects with the Maryland General Corporation Law
("MGCL"). The Company is not in violation of its articles of incorporation or
bylaws; the execution and delivery of this Agreement, the incurrence of the
obligations herein set forth and the consummation of the transactions
contemplated herein will not result in any violation of the provisions of the
articles of incorporation or bylaws of the Company.
(21) The Bank's charter and bylaws comply in all material
respects with the HOLA and the rules and regulations of the OTS. The Bank is not
in violation of its charter or bylaws; the execution and delivery of this
Agreement, the incurrence of the obligations herein set forth and the
consummation of the transactions contemplated herein will not result in any
violation of the provisions of the charter or bylaws of the Bank.
(22) To Xxxxxxx'x knowledge, none of the Osage Parties
is in violation of its articles, charter and bylaws or in default or violation
of any obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to which it
is a party or by which it or its property may be bound, except for such defaults
or violations which would not have a material adverse impact on the financial
condition or results of operations of the Osage Parties on a consolidated basis.
To Xxxxxxx'x knowledge, the execution and delivery of this Agreement, the
incurrence of the obligations herein set forth and the consummation of the
transactions contemplated herein will not conflict with or constitute a breach
of, or default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Osage Parties pursuant
to any material contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which any Osage Party is a party or by which any of them may
be bound, or to which any of the property or assets of the Osage Parties are
26
subject; and such action will not result in any violation of the provisions of
the articles, charter or bylaws of any Osage Party, or result in any violation
of any applicable federal or state law, act, regulation (except that no opinion
with respect to the securities and blue sky laws of various jurisdictions or the
rules or regulations of the NASD need be rendered) or order or court order,
writ, injunction or decree.
(23) To Xxxxxxx'x knowledge, none of the Osage Parties
is in violation of any directive from the OTS to make any material change in the
method of conducting its business, and the Osage Parties have conducted and are
conducting their respective businesses so as to comply in all material respect
with all applicable statutes and regulations (including, without limitation,
regulations, decisions, directives and orders of the FDIC and the OTS).
(24) None of the Osage Parties is required to be
registered as an investment company under the Investment Company Act of 1940, as
amended.
In rendering their opinion, Xxxxxxx may rely, to the extent
such counsel deems such reliance necessary or appropriate, upon certificates of
governmental officials, certificates or opinions of other counsel reasonably
satisfactory to the Selling Agent and, as to matters of fact, officers'
certificates. The opinion of such counsel need refer only to matters of New
York, Maryland and federal law and may add other qualifications and explanations
of the basis of their opinion as may be reasonably acceptable to the Selling
Agent.
(ii) The letter of Xxxxxxx, addressed to the Selling Agent,
dated the Closing Date, in form and substance to the effect that:
During the preparation of the Conversion Application, the Registration
Statement, the Prospectus,, the Members' Proxy Statement and the Stockholders'
Proxy Statement such counsel participated in conferences with management of and
the independent certified public accountants for the Osage Parties. Based upon
such conferences and such review of corporate records of the Osage Parties as
such counsel conducted in connection with the preparation of the Conversion
Application, the Registration Statement, the Prospectus, the Members' Proxy
Statement and the Stockholders' Proxy Statement, nothing has come to their
attention that would lead them to believe that : (i) the Registration Statement,
or any amendment or supplement thereto (other than the financial statements, the
notes thereto, and other tabular, financial, statistical and appraisal data
included therein as to which no view need be rendered) 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; or
(ii) the Conversion Application, the Prospectus, the Members' Proxy Statement or
the Stockholders' Proxy Statement, or any amendment or supplement thereto (other
than the financial statements, the notes thereto, and other tabular, financial,
statistical and appraisal data included therein as to which no view need be
rendered) includes an untrue statement of material fact or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(iii) The favorable opinion, dated as of the Closing Date, of
Silver, Xxxxxxxx & Xxxx, L.L.P., counsel for the Selling Agent, with respect to
such matters as the Selling Agent may reasonably require. Such opinion may rely
upon certificates of officers and directors of the Osage Parties delivered
pursuant hereto or as such counsel shall reasonably request.
(iv) A Blue Sky Memorandum from Xxxxxxx relating to the
Offering, including Selling Agent's participation therein, and should be
furnished to the Company with a copy thereof
27
addressed to Selling Agent or upon which Xxxxxxx shall state Selling Agent may
rely. The Blue Sky Memorandum will relate to the necessity of obtaining or
confirming exemptions, qualifications or the registration of the Common Stock
under the state securities laws of all of the states of the United States and
the District of Columbia.
d. At the Closing Date, the Selling Agent shall receive a
certificate of the Chief Executive Officer and the Chief Financial Officer of
each of the Osage Parties, dated the Closing Date, to the effect that: (i) they
have carefully examined the Prospectus and, in their opinion, at the time the
Prospectus became authorized for final use, the Prospectus did not contain any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading; (ii) since the date the Prospectus became
authorized for final use, no event has occurred which should have been set forth
in an amendment or supplement to the Prospectus which has not been so set forth,
including specifically, but without limitation, any material adverse change in
the condition, financial or otherwise, or in the earnings, capital, properties
or business of the Company, Osage, the MHC or the Bank and the conditions set
forth in this Section 8 have been satisfied; (iii) since the respective dates as
of which information is given in the Registration Statement and the Prospectus,
there has been no material adverse effect on the business, financial condition,
results of operations, affairs or prospects of the Osage Parties taken as a
whole, whether or not arising in the ordinary course of business; (iv) the
representations and warranties in Section 4 of this Agreement are true and
correct with the same force and effect as though expressly made at and as of the
Closing Date; (v) the Osage Parties have complied with all agreements and
satisfied all conditions on their part to be performed or satisfied at or prior
to the Closing Date and will comply with all obligations to be satisfied by them
after the Conversion; (vi) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been initiated or threatened by the Commission or any state securities or Blue
Sky authority; (vii) no order suspending the Offering, the Conversion or the
effectiveness of the Prospectus has been issued and no proceedings for that
purpose have been issued and no proceedings for that purpose have been initiated
or threatened by the OTS; and (viii) to the knowledge of the Company or the
Bank, no person has sought to obtain review of the final action of the OTS
approving the Plan.
e. Prior to and at the Closing Date: (i) there shall have
been no material adverse effect on the business, financial condition, results of
operations, affairs or prospects of the Osage Parties taken as a whole since the
respective dates as of which information is given in the Prospectus, except as
referred to therein; (ii) there shall have been no material transaction entered
into by any Osage Party since the latest dates as of which the financial
condition of the Osage Parties is set forth in the Prospectus, other than
transactions referred to or contemplated therein; (iii) no Osage Party shall
have received from the OTS or any other government agency any direction (oral or
written) to make any material change in the method of conducting its business
with which it has not complied (which direction, if any, shall have been
disclosed to the Selling Agent) or which would materially and adversely affect
the business, financial condition, results of operations, affairs or prospects;
(iv) no Osage Party 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 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 any Osage Party, threatened against any
Osage Party, or affecting any of their respective properties wherein an
unfavorable decision, ruling or finding would materially and adversely affect
the business, financial condition,
28
results of operations, affairs or prospects of the Osage Parties taken as a
whole; and (vi) the Shares shall have been qualified or registered for offering
and sale or exempted therefrom under the securities or blue sky laws of the
jurisdictions as the Selling Agent shall have reasonably requested and as agreed
to by the Company.
f. Concurrently with the execution of this Agreement, the
Selling Agent and the Osage Parties shall receive a letter from BKD dated the
date hereof and addressed to the Selling Agent: (i) confirming that BKD is a
firm of independent certified public accountants with respect to Osage and the
Bank within the meaning of the 1933 Act and the 1933 Act Regulations, the 1934
Act and the 1934 Act Regulations and the Code of Ethics of the American
Institute of Certified Public Accountants and no information concerning BKD's
relationship with or interests in any Osage Party is required to be disclosed in
the Prospectus, and stating in effect that in BKD's opinion the consolidated
financial statements of Osage included in the Prospectus and covered by BKD's
opinion included therein comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act, the 1934 Act, the 1933 Act
Regulations, the 1934 Act Regulations and accounting principles generally
accepted in the United States of America; (ii) stating in effect that, on the
basis of certain agreed upon procedures (but not an examination in accordance
with generally accepted auditing standards) consisting of a review, in
accordance with Statement on Auditing Standards No. 71, of the latest available
unaudited interim consolidated financial statements of Osage prepared by Osage,
a reading of the minutes of the meetings of the Board of Directors, Executive
Committee, Audit Committee and stockholders of Osage and the Bank and
consultations with officers of Osage and the Bank responsible for financial and
accounting matters, nothing has come to BKD's attention which causes BKD to
believe that: (A) such unaudited consolidated financial statements including any
"Recent Developments" section in the Prospectus do not comply as to form in all
material respects with applicable accounting requirements; (B) such unaudited
consolidated financial statements including any "Recent Developments" section
are not in conformity with accounting principles generally accepted in the
United States of America, applied on a basis substantially consistent with that
of the audited consolidated financial statements included in the Prospectus; (C)
during the period from the date of the latest unaudited consolidated financial
statements included in the Prospectus to a specified date not more than five
business days prior to the date hereof, 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, 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) or (D) there was any material decrease in retained earnings of
Osage at the date of such letter as compared with amounts shown in the latest
unaudited consolidated balance sheet included in the Prospectus or there was any
decrease in net income, net interest income, provision for loan losses or net
income after provision or increase in non-interest expense of Osage for the
number of full months commencing immediately after the period covered by the
latest unaudited consolidated income statement included in the Prospectus and
ended on the latest month end 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 in BKD's opinion included in the
Prospectus and the performance of the procedures referred to in clause (ii) of
this paragraph (e), BKD has compared with the general accounting records of
Osage's and/or the Bank's, as applicable, which are subject to the internal
controls of the accounting system and other data prepared by Osage and/or the
Bank, as applicable, directly from such accounting records, to the extent
specified in such letter, such amounts and/or percentages set forth in the
Prospectus as the Selling Agent may reasonably request; and they have found such
amounts and percentages to
29
be in agreement therewith (subject to rounding).
g. At the Closing Date, the Selling Agent shall receive a
letter from BKD, dated the Closing Date, addressed to the Selling Agent,
confirming the statements made by BKD in the letter delivered pursuant to
paragraph (f) of this Section 8, the "specified date" referred to in clause (ii)
(C) thereof to be a date specified in such letter, which shall not be more than
three (3) business days prior to the Closing Date.
h. At the Closing Date, the Bank shall receive a letter from
Xxxxxx & Company, Inc., dated the Closing Date (i) confirming that said firm is
independent of the Osage Parties and is experienced and expert in the area of
corporate appraisals within the meaning of Title 12 of the Code of Federal
Regulations, Section 563b.200(b), (ii) stating in effect that the Independent
Valuation prepared by such firm complies in all material respects with the
applicable requirements of Title 12 of the Code of Federal Regulations, and
(iii) further stating that its opinion of the aggregate pro forma market value
of the Company and the Bank, as most recently updated, remains in effect.
i. At or prior to the Closing Date, the Selling Agent shall
receive: (i) a copy of the letters from the OTS approving the Reorganization
Applications and authorizing the use of the Prospectus; (ii) a copy of the
orders from the Commission declaring the Registration Statement and the Exchange
Act Registration Statement effective; (iii) a certificate from the OTS
evidencing the valid existence of the Bank; (iv) a certificate from the FDIC
evidencing the Bank*s insurance of accounts; (v) a certificate from the
FHLB-Topeka evidencing the Bank*s membership therein; (vi) a certificate from
the OTS evidencing the Company's standing as a registered savings and loan
holding company; (vii) a copy of the Bank's federal stock charter; and (viii) a
copy of the Company's articles of incorporation.
j. At the Closing Date, counsel to the Selling Agent shall
have been furnished with such other documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the sale of the
Shares as herein contemplated and related proceedings or in order to evidence
the accuracy or completeness of any of the representations and warranties, or
the fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Osage Parties in connection with the Conversion and the sale of the
Shares as herein contemplated shall be satisfactory in form and substance to the
Selling Agent and counsel to the Selling Agent.
k. The Osage Parties shall not have sustained since the date
of the latest audited consolidated financial statements included in the
Registration Statement and Prospectus any 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, other than as set forth or contemplated in the Registration Statement,
which is in the judgment of the Selling Agent sufficiently material and adverse
as to make it impracticable or inadvisable to proceed with the Offering or the
delivery of the Shares on the terms and in the manner contemplated in the
Prospectus.
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 exchanges
30
or the NASD 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 two (2) hours; (ii)
a general moratorium on the operations of operation of commercial banks, federal
or state savings banks in New York or a general moratorium on the withdrawal of
deposits from commercial banks, federal or state savings and loan associations
or savings banks in New York declared by either federal or state authorities; or
(iii) there shall not have occurred any material adverse change in the financial
markets in the United States or elsewhere or any outbreak of hostilities or
escalation thereof or other calamity or crisis, including, without limitation,
terrorist activities after the date hereof, the effect of which, 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.
m. 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 Selling Agent and to counsel for the
Selling Agent. Any certificate signed by an officer of the MHC, Osage, the
Company or the Bank and delivered to the Selling Agent or to counsel for the
Selling Agent shall be deemed a representation and warranty by the MHC, Osage,
the Company or the Bank, as the case may be, to the Selling Agent as to the
statements made therein.
n. If any of the conditions specified in this Section 8
shall not have been fulfilled when and as required by this Agreement, or by
_____, 2006, this Agreement and all of the Selling Agent's obligations hereunder
may be canceled by the Selling Agent by notifying the Osage Parties of such
cancellation in writing or by fax 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 1, 6 and 7 hereof.
Notwithstanding the above, if this Agreement is canceled pursuant to this
paragraph, the Osage Parties jointly and severally agree to reimburse the
Selling Agent for all of the Selling Agent's out-of-pocket expenses reasonably
incurred by the Selling Agent, including any legal fees (and out-of- pocket
expenses) to be paid to the Selling Agent's counsel, subject to the limits
expressed in Section 1(d) hereof.
SECTION 9. Termination. The Selling Agent may terminate this
-----------
Agreement by giving the notice indicated below in this Section 9 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 the Selling Agent*s opinion, impracticable to proceed with the offering
of the Shares; or if trading on the NYSE shall have suspended (except that this
shall not apply to the imposition of NYSE trading collars imposed on program
trading); or if the United States shall have become involved in a war or major
hostilities; or if a general banking moratorium has been declared by a state or
federal authority which has a material effect on the combined institution or the
Offering; 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
adverse change in the financial condition, results of operations or business of
the combined institution, or if the combined institution shall have sustained a
material or substantial loss by fire, flood, accident, hurricane, earthquake,
theft, sabotage or other calamity or malicious act, whether or not said loss
shall have been insured; or if there shall have been a material adverse
31
change in the financial condition, results of operations or business of the
Osage Parties, taken as a whole.
b. In the event the Company fails to sell the required minimum
number of the Shares by ______, 2006, and in accordance with the provisions of
the Plan or as required by the Conversion Regulations, and applicable law, this
Agreement shall terminate upon refund by the Company to each person who has
subscribed for or ordered any of the Shares the full amount which it may have
received from such person, together with interest as provided in the Prospectus,
and no party to this Agreement shall have any obligation to the other hereunder,
except as set forth in Sections 1, 6 and 7 hereof.
c. If any of the conditions specified in Section 8 shall not
have been fulfilled when and as required by this Agreement, unless waived in
writing, or by the Closing Date, this Agreement and all of the Selling Agent*s
obligations hereunder may be cancelled by the Selling Agent by notifying the
Company of such cancellation in writing or by telegram at any time at or prior
to the Closing Date, and any such cancellation shall be without liability of any
party to any other party except as otherwise provided in Sections 1, 6 and 7
hereof.
d. If the Selling Agent elects to terminate this Agreement as
provided in this Section, the Company shall be notified promptly by telephone or
telegram, confirmed by letter.
The Company, Osage, the MHC and the Bank may terminate this
Agreement in the event the Selling Agent is in material breach of the
representations and warranties or covenants contained in Section 4.2 and such
breach has not been cured after the Selling Agent was provided with notice of
such breach.
This Agreement may also be terminated by mutual written
consent of the parties hereto.
SECTION 10. Notices. All communications hereunder, except as
-------
herein otherwise specifically provided, shall be mailed in writing and if sent
to the Selling Agent shall be mailed, delivered or telegraphed and confirmed to
Xxxxx, Xxxxxxxx & Xxxxx, 000 Xxxxxxxxx Xxxxx, Xxxxxx, Xxxx 00000-0000,
Attention: Xxxxxxx X. Xxxxxx (with a copy to Silver, Xxxxxxxx & Xxxx, L.L.P.,
0000 Xxxxxxxxx Xxxxxx, XX, Xxxxxxxxxx, XX 00000, Attention: Xxxx X. Xxxxxxxxxx,
P.C.) and, if sent to a Osage Party, shall be mailed, delivered or telegraphed
and confirmed to such Osage Party at 000 Xxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx
00000, Attention: Xxxx X. Xxxxx, President (with a copy to Xxxxxxx Spidi &
Xxxxx, P.C., 000 Xxx Xxxx Xxxxxx, X.X., Xxxxx 000 Xxxx, Xxxxxxxxxx, X.X. 00000,
Attention: Xxxxxx X. Xxxxxxx, Esq.)
SECTION 11. Parties. The Osage Parties shall be entitled to
-------
act and rely on any request, notice, consent, waiver or agreement purportedly
given on behalf of the Selling Agent when the same shall have been given by the
undersigned. The Selling Agent shall be entitled to act and rely on any request,
notice, consent, waiver or agreement purportedly given on behalf of the Osage
Parties, when the same shall have been given by the undersigned or any other
officer of the Osage Parties This Agreement shall inure solely to the benefit
of, and shall be binding upon, the Selling Agent, the Company, Osage, the MHC,
the Bank, and their respective successors and assigns, and no other person shall
have or be construed to have any legal or equitable right, remedy or claim under
or in respect of or by virtue of this Agreement or any provision herein
contained. It is understood and agreed that this Agreement is the exclusive
agreement among the parties hereto,
32
and supersedes any prior agreement among the parties and may not be varied
except in writing signed by all the parties.
SECTION 12. Closing. The closing for the sale of the Shares
-------
shall take place on the Closing Date at such location as determined pursuant to
Section 2. At the closing, the Company shall deliver to the Selling Agent in
next day funds the commissions, fees and expenses due and owing to the Selling
Agent as set forth in Sections 1 and 6 hereof and the opinions and certificates
required hereby and other documents deemed reasonably necessary by the Selling
Agent shall be executed and delivered to effect the sale of the Shares as
contemplated hereby and pursuant to the terms of the Prospectus.
SECTION 13. Partial Invalidity. In the event that any term,
-------------------
provision or covenant herein or the application thereof to any circumstance or
situation shall be invalid or unenforceable, in whole or in part, the remainder
hereof and the application of said term, provision or covenant to any other
circumstances or situation shall not be affected thereby, and each term,
provision or covenant herein shall be valid and enforceable to the full extent
permitted by law.
SECTION 14. Governing Law and Construction. This Agreement
-------------------------------
shall be governed by and construed in accordance with the laws of the State of
New York.
SECTION 15. Counterparts. This Agreement may be executed in
------------
separate counterparts, each of which so executed and delivered shall be an
original, but all of which together shall constitute but one and the same
instrument.
SECTION 16. Entire Agreement. This Agreement, including
-----------------
schedules and exhibits hereto, which are integral parts hereof and incorporated
as though set forth in full, constitutes the entire agreement between the
parties pertaining to the subject matter hereof superseding any and all prior or
contemporaneous oral or prior written agreements, proposals, letters of intent
and understandings, and cannot be modified, changed, waived or terminated except
by a writing which expressly states that it is an amendment, modification or
waiver, refers to this Agreement and is signed by the party to be charged. No
course of conduct or dealing shall be construed to modify, amend or otherwise
affect any of the provisions hereof.
SECTION 17. Survival. The respective indemnities, agreements,
--------
representations, warranties and other statements of the Osage Parties and the
Selling Agent, as set forth in this Agreement, shall remain in full force and
effect, regardless of any termination or cancellation of this Agreement or any
investigation (or any statement as to the results thereof) made by or on behalf
of the Selling Agent or any of the Selling Agent's officers or directors or any
person controlling the Selling Agent, or the Osage Parties, or any of their
respective officers or directors or any person controlling the Osage Parties,
and shall survive termination of this Agreement and receipt or delivery of any
payment for the Shares.
SECTION 18. Waiver of Trial by Jury. Each of the Selling Agent
-----------------------
and the Osage Parties 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.
This Agreement is made solely for the benefit of and will be
binding upon the parties hereto and their respective successors and the
directors, officers and controlling persons referred to in Section 7 hereof, and
no other person will have any right or obligation hereunder.
33
The term "successors" shall not include any purchaser of any
of the Shares. Time shall be of the essence for this Agreement.
This Agreement may be signed in various counterparts which
together will constitute one agreement. The remainder of this page has been
intentionally left blank.
34
If the foregoing correctly sets forth the arrangement among the
Company, Osage, the MHC, the Bank and the Agent, please indicate acceptance
thereof in the space provided below for that purpose, whereupon this letter and
the Agent*s acceptance shall constitute a binding agreement.
Very truly yours,
OSAGE FEDERAL FINANCIAL, INC. OSAGE BANCSHARES, INC.
By Its Authorized Representative: By Its Authorized Representative:
---------------------------------- ----------------------------------
Xxxx X. Xxxxx, President Xxxx X. Xxxxx, President
OSAGE FEDERAL MHC OSAGE FEDERAL BANK
By Its Authorized Representative:
By Its Authorized Representative:
---------------------------------- ----------------------------------
Xxxx X. Xxxxx, President Xxxx X. Xxxxx, President
Accepted as of the date first above
written
Xxxxx, Xxxxxxxx & Xxxxx, Inc.
----------------------------------
Xxxxxxx X. Xxxxxx
Managing Director
EXHIBIT A
