Exhibit 1.2
HOMESTEAD BANCORP, INC.
HOMESTEAD MUTUAL HOLDING COMPANY
PONCHATOULA HOMESTEAD SAVINGS, F.A.
Up to 977,500 Shares of Common Stock
of Homestead Bancorp, Inc.
($.01 Par Value Per Spare)
AGENCY AGREEMENT
May __, 1998
Trident Securities, Inc.
0000 Xxx Xxxxx Xxxx, 0xx Xxxxx
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Ladies and Gentlemen:
Homestead Bancorp, Inc., Ponchatoula, Louisiana, a Louisiana corporation
("Company"), Homestead Mutual Holding Company, Ponchatoula, Louisiana ("MHC"), a
federally chartered mutual holding company, and Ponchatoula Homestead Savings,
F.A., Ponchatoula, Louisiana ("Association"), a federally chartered stock
savings association, the deposit accounts of which are insured by the Federal
Deposit Insurance Corporation ("FDIC") through the Savings Association Insurance
Fund ("SAIF"), and the majority owned subsidiary of the MHC (the Company, the
MHC and the Association are collectively referred to herein as the "Primary
Parties"), hereby confirm, jointly and severally, their agreement with Trident
Securities, Inc., Raleigh, North Carolina ("Trident") as of the date hereof, as
follows:
Introduction. On August 31, 1994, Ponchatoula Homestead Association
reorganized into the mutual holding company structure in a transaction in which
the MHC was formed. As of the date of this Agreement, the MHC owns 75.2% of the
issued and outstanding shares of common stock of the Association and the
remaining 24.8% of the outstanding shares of common stock of the Association are
owned by persons other than the MHC. The foregoing transaction is hereinafter
referred to as the "MHC Reorganization."
The MHC and the Association desire to eliminate the mutual holding company
structure. A Plan of Conversion of Homestead Mutual Holding Company and
Agreement and Plan of Reorganization between Homestead Bancorp, Inc. and
Ponchatoula Homestead Savings, F.A. ("Plan") was adopted on February 25, 1998 by
the Boards of Directors of the MHC and the Association and on __________, 1998
by the Board of Directors of the Company. Pursuant to the Plan, the following
transactions will be effected: (i) the MHC will convert to an interim federal
stock savings association and merge with and into the Association, with the
Association as the surviving entity and with the cancellation of the shares of
common stock of the Association, $1.00 par value per share ("Association Common
Stock"), held by the MHC as of the Closing Date (as hereinafter defined), (ii)
an interim federal stock savings association formed by the Company will
Trident Securities, Inc.
Page 2
merge with and into the Association, resulting in (a) the Association becoming a
wholly owned subsidiary of the Company and (b) the outstanding shares of
Association Common Stock held by persons other than the MHC ("Public Association
Shares") being exchanged for shares of common stock, $.01 par value per share,
of the Company ("Exchange Shares") pursuant to a specified exchange ratio
("Exchange Ratio") ("Exchange Offering"), all as described in the Plan, and
(iii) the Company will offer shares of its common stock as described below
(collectively, the "Conversion and Reorganization").
In addition to the Exchange Offering, pursuant to the Plan and as part of
the Conversion and Reorganization, the Company is also offering up to 977,500
shares (subject to adjustment up to 1,124,125 shares) of its common stock, $.01
par value per share ("Conversion Shares" and together with the Exchange Shares,
"Common Stock" or "Shares") in a subscription offering ("Subscription Offering")
to (i) Eligible Account Holders (as defined in the Plan), (ii) tax-qualified
employee stock benefit plans, including an ESOP (as defined in the Plan), (iii)
Supplemental Eligible Account Holders (as defined in the Plan), (iv) Other
Members (as defined in the Plan), (v) officers, directors and employees of the
Primary Parties, and (vi) stockholders of the Association other than the MHC
("Public Stockholders"). The Company may offer any Conversion Shares not
subscribed for in the Subscription Offering for sale in a community offering
("Community Offering" and, when referred to together with the Subscription
Offering, the "Subscription and Community Offering") to certain members of the
general public to whom a Prospectus (as hereinafter defined) is delivered by or
on behalf of the Company, with preference given to natural persons residing in
Tangipahoa Parish. If any Conversion Shares are not subscribed for or purchased
in the Subscription and Community Offering, Trident may seek to form a syndicate
of selected registered broker-dealers to assist in the sale of the Conversion
Shares on a best efforts basis in a syndicated community offering ("Syndicated
Community Offering"). The Subscription Offering, Community Offering, and
Syndicated Community Offering, if any, together with the Exchange Offering, are
collectively referred to as the "Offering."
The Company has filed with the Securities and Exchange Commission
("Commission") a registration statement on Form SB-2 (File No. 333-_____),
including exhibits and as may be amended and/or supplemented ("Registration
Statement"), containing a prospectus relating to the Offering, for the
registration of the Shares under the Securities Act of 1933 (" 1933 Act"), and
has filed such amendments and supplements thereto, if any, and such amended
prospectuses and supplemented prospectuses as may have been required to the date
hereof. The prospectus, as amended and/or supplemented, on file with the
Commission at the time the Registration Statement initially becomes effective is
hereinafter called the "Prospectus," except that if any prospectus is filed by
the Company pursuant to Rule 424(b) or (c) of the rules and regulations of the
Commission under the 1933 Act ("1933 Act Regulations") differing from the
prospectus on file at the time the Registration Statement initially becomes
effective, the term "Prospectus" shall refer to the prospectus filed pursuant to
Rule 424(b) or (c) from and after the time said prospectus is filed with the
Commission.
Trident Securities, Inc.
Page 3
The MHC has filed with the Office of Thrift Supervision ("OTS") an
Application for Approval of Conversion, including exhibits and as may be amended
and/or supplemented ("Conversion Application"), including the Prospectus
contained therein, and has filed such amendments or supplements thereto, if any,
as may have been required pursuant to the Home Owners' Loan Act, as amended
("HOLA"), 12 C.F.R. 575.12(a) and 12 C.F.R. Part 563b ("Conversion
Regulations"). In addition, the Company has filed with the OTS an application on
Form H-(e)l-S, with exhibits (including such required filings in connection with
the interim mergers described above which are part of the Conversion and
Reorganization) and as may be amended and/or supplemented (collectively, the
"Holding Company Application"), and has filed such amendments or supplements
thereto, if any, as may have been required to become a registered savings and
loan holding company under the HOLA.
Section 1. Appointment of Trident; Trident's Services; Compensation and
Expenses; Sale and Delivery of Shares.
(a) Subject to the terms and conditions herein set forth, the Primary
Parties hereby appoint Trident to serve as their exclusive financial advisor to
exercise its best efforts to sell the Conversion Stock in the Offering.
(i) On the basis of the representations and warranties and the
agreements herein, but subject to the terms and conditions herein, Trident
hereby accepts such appointment. The Primary Parties acknowledge that Trident
shall not be required to purchase any Conversion Stock and shall not be
obligated to take any action inconsistent with all applicable laws, regulations,
decisions or orders. Trident may assemble and manage a selling group of
broker-dealers, which are members of the National Association of Securities
Dealers, Inc. ("NASD"), to participate in the solicitation of purchase orders
for Conversion Stock in the event of the Syndicated Community Offering. Members
of such selling group will enter into a selected dealers' agreement ("Dealers'
Agreement"), the form of which is set forth as Exhibit A to this Agreement.
(ii) Trident agrees to perform, at the request of management of the
Primary Parties, the services described in the engagement letter dated February
4, 1998 and agreed to and accepted by the Association on February 25, 1998.
The obligations of Trident pursuant to this Agreement shall terminate in
accordance with Section 9 hereof.
(b) Trident shall receive the following compensation for its services
hereunder:
(i) A commission equal to 1.125% of the aggregate dollar amount of
Conversion Shares sold in the Subscription and Community Offerings, excluding
any Conversion Shares sold to the Company's and the Association's directors,
officers, employees and employee
Trident Securities, Inc.
Page 4
benefit plans and excluding any Contingent Shares (as described in the
Prospectus), and provided that in no event shall the commission exceed $150,000.
(ii) For Conversion Shares sold by other NASD member firms in the
Syndicated Community Offering, if any, pursuant to the Dealers' Agreement, a
commission not to exceed a fee to be agreed upon jointly by Trident, the Company
and the Association to reflect market requirements at the time of the stock
allocation in the Syndicated Community Offering;
(iii) Fees and commissions set forth under (i) and (ii) shall be
paid to Trident on the date of Closing; and
(iv) Trident shall be reimbursed for all allocable expenses incurred
by it, including, but not limited to, legal fees, whether or not the Conversion
and Reorganization is consummated. Reimbursement for such legal fees and other
out-of-pocket expenses shall not exceed $27,500 and $10,000, respectively.
Trident acknowledges receipt of $10,000 to be applied toward the payment of such
expenses. None of the Primary Parties shall pay or reimburse Trident for any of
the foregoing expenses which are incurred or accrued after Trident shall have
notified any of the Primary Parties of its election to terminate this Agreement
pursuant to Section 9 hereof or after such time as the Primary Parties shall
have given notice to Trident of its or their election to terminate this
Agreement pursuant to Section 9(d) hereof.
To the extent not previously paid, full payment of Trident's actual and
accountable expenses shall be made in next day funds on the Closing Date (as
hereinafter defined) or, if the Conversion and Reorganization is not completed
and is abandoned or terminated for any reason, within five (5) days of receipt
by the Primary Parties of a reasonable accounting from Trident of its expenses.
In the event of a resolicitation of subscribers, the parties agree to
renegotiate the expense cap on legal fees and out-of-pocket expenses applicable
to Trident provided, however, that the failure to renegotiate will not result in
a termination of the Agreement.
(c) The release of Shares against payment therefor shall be made on
a date acceptable to Trident and at the principal office of the Company or the
Association or at such other place as shall be agreed upon between the parties
hereto. The date upon which the Company shall release or deliver the Shares sold
in the Offering in accordance with the terms hereof is herein called the
"Closing Date." If all conditions precedent to the consummation of the
Conversion and Reorganization are satisfied, including, without limitation, the
sale of all Shares required by the Plan to be sold, the Company agrees to issue
or have issued the Shares sold in the Offerings and to release for delivery
certificates for such Shares within three business days after the Closing Date
against payment to the Company by any means authorized by the Plan; provided,
however, that no Shares shall be released for delivery by the Company until the
conditions specified in Section
Trident Securities, Inc.
Page 5
4 hereof shall have been complied with to the reasonable satisfaction of Trident
or waived in writing by Trident.
In the event the Company is unable to sell a minimum of 722,500 Conversion
Shares (or such lesser number as the OTS may authorize) by ___________, 1998 or
any extension of such period as may be approved by the OTS), the Company shall
refund to any persons who have subscribed for any of the Conversion 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
thereafter have any obligation to the other parties hereunder, except as set
forth in this Section 1 and in Sections 6, 7 and 9(e) hereof.
Section 2. Representations and Warranties of the Primary Parties. The
Primary Parties, jointly and severally, represent and warrant to Trident as
follows:
(a) The MHC Reorganization was conducted in all material respects in
accordance with all applicable OTS rules and regulations then in effect, and the
Primary Parties received, and complied in all materials respects with, all
applicable regulatory approvals.
(b) The Company has filed with the Commission the Registration Statement,
including exhibits, amendments or supplements thereto. The Registration
Statement was declared effective by the Commission on _________, 1998. No stop
order or equivalent order has been issued with respect to the Registration
Statement and no proceedings therefor have been initiated or, to the best
knowledge of the Primary Parties, threatened by the Commission.
(c) As of the date of the Prospectus, and at all times subsequent thereto
through and including the Closing Date, the Registration Statement complied in
all material respects with the 1933 Act and the 1933 Act Regulations. No order
has been issued by the Commission preventing or suspending the use of the
Prospectus. No action by or for the Commission preventing the use of the
Prospectus is pending or, to the best knowledge of the Primary Parties,
threatened.
(d) As of the date of the Prospectus, and at all times subsequent thereto,
through and including the Closing Date, the Registration Statement and the
Prospectus did not and will not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading. Representations and warranties in this subsection (d)
shall not apply to statements or omissions which relate to Trident and which
were made in reliance upon and in conformity with written information furnished
to the Primary Parties by Trident or its counsel expressly for use in the
Registration Statement or the Prospectus.
(e) The MHC has filed the Conversion Application with the OTS. The
Conversion Application was approved by the OTS on ________, 1998, and the
Prospectus and proxy statements for the special meeting of members of the MHC
and the special meeting of stockholders
Trident Securities, Inc.
Page 6
of the Association were authorized for use by the OTS on _________, 1998. No
stop order or equivalent order has been issued with respect to the Conversion
Application and, to the best knowledge of the Primary Parties, no proceedings
therefor have been initiated or threatened by the OTS.
(f) The Conversion Application complies in all material respects with the
Conversion Regulations. The Prospectus, which is included in the Conversion
Application, has been approved for use by the OTS and such approval is in full
force and effect. All solicitation and marketing materials which are included in
the Conversion Application have been approved for use by the OTS and such
approval is in full force and effect. No order has been issued by the OTS
preventing or suspending the use of the Prospectus. No action by or before the
OTS revoking such approval is pending or, to the best knowledge of the Primary
Parties, threatened.
(g) The Company has filed the Holding Company Application with the OTS.
The Holding Company Application complies in all material respects with the
Conversion Regulations.
(h) The Company has been duly incorporated and is validly existing and in
good standing under the laws of the State of Louisiana, with full power and
authority to own its properties and conduct its business as described in the
Registration Statement and the Prospectus. The Articles of Incorporation and
Bylaws of the Company comply in all material respects with applicable laws and
regulations. The Company has obtained all licenses, permits and other
governmental authorizations currently required for the conduct of its business,
except where the failure to obtain such licenses, permits or authorizations
would not have a material adverse effect upon the business or operations of the
Primary Parties, taken as a whole. All of such licenses, permits and other
governmental authorizations are in full force and effect, and the Company is in
all material respects in compliance therewith. On the Closing Date, the Company
will be duly qualified as a foreign corporation to transact business and will be
in good standing in each jurisdiction in which its ownership of property or
leasing of property or the conduct of its business requires such qualification,
unless the failure to be so qualified in one or more of such jurisdictions would
not have a material adverse effect on the Primary Parties, taken as a whole.
(i) The Association is a stock savings association organized and validly
existing under the laws of the United States, with full power and authority to
own its properties and conduct its business as described in the Prospectus. The
Federal Stock Charter and Bylaws of the Association comply in all material
respects with applicable laws and regulations. The Association has obtained all
licenses, permits and other governmental authorizations currently required for
the conduct of its business, except where the failure to obtain such licenses,
permits or authorizations would not have a material adverse effect upon the
business or operations of the Primary Parties, taken as a whole. All of such
licenses, permits and other governmental authorizations are in full force and
effect, and the Association is in all material respects in compliance therewith.
The deposit accounts of the Association are insured up to applicable limits by
the FDIC under the SAIF. The Association is a member of the Federal Home Loan
Bank ("FHLB") of Dallas. The Association
Trident Securities, Inc.
Page 7
is duly qualified as a foreign corporation to transact business and is in good
standing or is exempt from such qualification in each jurisdiction in which its
ownership of property or leasing of property or the conduct of its business
requires such qualification, unless the failure to be so qualified in one or
more of such jurisdictions would not have a material adverse effect on the
Primary Parties, taken as a whole.
(j) The MHC is a mutual holding company organized and validly existing
under the laws of the United States, with full power and authority to own its
properties and conduct its business as described in the Prospectus. The Charter
and Bylaws of the MHC comply in all material respects with applicable laws and
regulations. The MHC has obtained all licenses, permits and other governmental
authorizations currently required for the conduct of its business, except where
the failure to obtain such licenses, permits or authorizations would not have a
material adverse effect on the MHC, taken as a whole. All of such licenses,
permits and other governmental authorizations are in full force and effect, and
the MHC is in all material respects in compliance therewith. The MHC is duly
qualified as a foreign corporation to transact business and is in good standing
in each jurisdiction in which its ownership of property or leasing of property
or the conduct of its business requires such qualification, unless the failure
to be so qualified in one or more of such jurisdictions would not have a
material adverse effect on the Primary Parties, taken as a whole.
(k) The authorized capital stock of the Association consists of 2,000,000
shares of preferred stock, par value $.10 per share, none of which are issued,
and 8,000,000 shares of common stock, par value $.10 per share, of which 456,240
shares are owned by the MHC, free, clear and unencumbered, and 150,105 of which
are owned of record by Public Stockholders as of the date of this Agreement. All
issuances and sales by the Association of its securities prior to the date
hereof were exempt from registration under the 1933 Act, and all such issuances
and sales complied in all material respects with the provisions of all
applicable federal and state securities laws then in effect.
(1) The Plan has been duly and validly adopted by the Boards of Directors
of the Primary Parties. Prior to the Closing Date, the Plan will be duly and
validly approved by the requisite vote of members of the MHC and by the
requisite votes of the stockholders of the Association.
(m) Prior to the Closing Date, the offer and sale of the Shares will have
been conducted in all material respects in accordance with the Plan, the
Conversion Regulations and all other applicable laws and regulations, including
all items, conditions, requirements and provisions precedent to the Conversion
and Reorganization imposed upon the Primary Parties by the OTS, the Commission
or any other regulatory authority and in the manner described in the Prospectus;
provided, however, that no representation or warranty is made with respect to
any action on the part of Trident or its agents. To the best knowledge of the
Primary Parties, no person has sought
Trident Securities, Inc.
Page 8
to obtain review of the final action of the OTS in approving the Plan or the
Conversion Application pursuant to the HOLA or any other statute or regulation.
(n) Except as disclosed in the Prospectus, none of the Primary Parties own
of record or beneficially more than 5% of the equity securities of, or more than
a 5% equity interest in, any entity or business enterprise.
(o) Each of the Primary Parties has good title to all assets material to
its respective businesses and to those assets described in the Prospectus as
owned by it, free and clear of all liens, charges, encumbrances or restrictions,
except as set forth in the Prospectus or as are not materially significant or
important in relation to the business of the Primary Parties, taken as a whole.
All of the leases and subleases material to the business of the Primary Parties
under which any one of them holds property, including those set forth in the
Prospectus, are in full force and effect as described therein.
(p) This Agreement has been duly and validly authorized, executed and
delivered by the Primary Parties. Assuming due execution and delivery by
Trident, this Agreement constitutes a valid and legally binding obligation of
the Primary Parties, enforceable against them in accordance with its terms,
except as the enforceability thereof may be limited by (i) bankruptcy,
insolvency, moratorium, reorganization, conservatorship, receivership or similar
laws relating to or affecting the enforcement of creditors' rights or by general
equity principles regardless of whether such enforceability is considered in a
proceeding in equity or at law, and (ii) laws relating to the safety and
soundness of insured depository institutions and their affiliates, and except to
the extent that the provisions of Sections 8 and 9 hereof may be unenforceable
as against public policy or by applicable law, including without limitation
Sections 23A and 23B of the Federal Reserve Act, 12 U.S.C. Section 371c
("Sections 23A and 23B").
(q) The Primary Parties have received (i) the opinion of Elias, Matz,
Xxxxxxx & Xxxxxxx, L.L.P. to the effect that the Conversion and Reorganization
will constitute a tax-free reorganization under the Internal Revenue Code of
1986, as amended ("Code"), and (ii) the opinion of Xxxxxx X. Xxxxxxxxx, L.L.P.
to the effect that the Conversion and Reorganization will not be a taxable
transaction under the laws of the State of Louisiana; and the facts relied upon
by such firms as set forth in such opinions are accurate and complete as of the
date of such opinions.
(r) The Primary Parties have all such corporate power, authority,
authorizations, approvals and orders as may be required to enter into this
Agreement, to perform all of their respective obligations hereunder and to
consummate the transactions contemplated hereby. On or before the Closing Date,
the Company will have the power, authority, authorizations, approvals and orders
to issue and sell the Shares in accordance with this Agreement, the Plan and the
Prospectus.
Trident Securities, Inc.
Page 9
(s) None of the Primary Parties is in violation of any rule or regulation
of the OTS or the FDIC or any other agency which would materially and adversely
affect the condition, financial or otherwise, operations, business or properties
of the Primary Parties, taken as a whole ("Material Adverse Effect"). None of
the Primary Parties is subject to any written directive from the OTS or the FDIC
(or their predecessors) or any other agency to make any change in the method of
conducting its business or affairs. Each of the Primary Parties has conducted
its business in material compliance with all applicable statutes and regulations
(including, without limitation, all regulations, decisions, directives and
orders of the FHLB of Dallas, the OTS and the FDIC, or their predecessors).
Except as set forth in the Registration Statement and the Prospectus, there is
not pending or, to the best knowledge of the Primary Parties, threatened any
litigation, charge, investigation, action, suit or proceeding before or by any
court, regulatory authority or governmental agency or body which, individually
or in the aggregate, might materially affect the performance of the terms and
conditions of this Agreement or the consummation of the transactions
contemplated hereby or which, individually or in the aggregate, might result in
any Material Adverse Effect.
(t) The capitalization, assets, properties and business of the Primary
Parties conform in all material respects to the descriptions thereof contained
in the Prospectus as of the dates specified therein. Since the latest date
specified in the Prospectus, there have been no changes which would result in a
Material Adverse Effect. None of the Primary Parties has any material contingent
liabilities of any kind, except as set forth in the Prospectus.
(u) No material 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
of the Primary Parties, in the due performance and observance of any term,
covenant or condition of any agreement which would result in a material adverse
effect. Such agreements are in full force and effect. No other party to any such
agreement has instituted or, to the best knowledge of the Primary Parties,
threatened any action or proceeding wherein any of the Primary Parties is
alleged to be in default thereunder.
(v) None of the Primary Parties is in violation of its respective Articles
of Incorporation or Charter, as applicable, or Bylaws or in default in any
respect in the performance of any material obligation, agreement or condition
contained in any bond, debenture, note or any other evidence of indebtedness by
which it is bound, except where such default would not have a Material Adverse
Effect. The execution, delivery and performance of this Agreement by the Primary
Parties and the consummation of the transactions contemplated hereby do not and
will not (i) violate or conflict with the Charter or Articles of Incorporation,
as applicable, or Bylaws of the Primary Parties or (ii) violate, conflict with
or constitute a breach of, or a default (or an event which, with notice or lapse
of time, or both, would constitute a default), except where such violation,
conflict, breach or default would not have a Material Adverse Effect under (I)
any agreement, indenture or other instrument by which any of the Primary Parties
is bound, or (II) any governmental license or permit or any law, administrative
regulation or authorization, approval, court decree, injunction or order
(subject to the satisfaction of the conditions imposed by the OTS
Trident Securities, Inc.
Page 10
in connection with its approvals of the Conversion Application and Holding
Company Application).
(w) Subsequent to the respective dates as of which information is given in
the Prospectus and before the Closing Date, except as otherwise may be
specifically provided for or contemplated in the Prospectus, none of the Primary
Parties will (i) issue any securities or incur any liability or obligation,
direct or contingent for borrowed money, except (a) the shares of common stock
to be issued by the Company in the Conversion and Reorganization and (b)
borrowings from the FHLB of Dallas and other borrowings and liabilities in the
ordinary course of business, including, but not limited to, deposits, or (ii)
enter into any other transaction not in the ordinary course of business which is
material in light of the businesses and properties of the Primary Parties, taken
as a whole.
(x) On the Closing Date, the authorized, issued and outstanding equity
capital of the Company will be within the range set forth in the Prospectus
under the caption "Capitalization."
(y) When issued in accordance with the terms of the Plan, the Shares will
be validly issued, fully paid and nonassessable, will conform in all material
respects to the description thereof set forth in the Registration Statement and
the Prospectus and will be issued in compliance in all material respects with
all applicable securities laws. The issuance of the Shares is not subject to
preemptive rights other than for subscription rights granted pursuant to the
Plan. Upon issuance of the Shares thereof against payment therefor, the Company
shall transfer good title to such Shares free and clear of all claims,
encumbrances, security interests and liens caused or created by any act or
omission of the Company whatsoever. The certificates evidencing the Shares will
conform in all material respects to the requirements of applicable laws and
regulations.
(z) None of the Primary Parties has: (i) placed any securities within the
last 18 months (except for notes to evidence bank loans and mortgage-backed
securities in the ordinary course of business and except for shares of Common
Stock issued in connection with the intended capitalization of the Company,
which shares will be canceled upon consummation of the Conversion and
Reorganization); (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
Conversion and Reorganization and routine purchases and sales of securities for
or from its portfolio; (iii) an officer or director who has any affiliation with
the NASD; (iv) entered into a financial or management consulting agreement,
except for the engagement letter entered into with Trident on February 25, 1998;
(iv) engaged any intermediary between Trident, the Company and the Association
in connection with any offering of the Shares, and no person is being
compensated in any manner for such service.
(aa) Appropriate arrangements have been made for placing the funds
received from subscriptions for Shares in a segregated interest-bearing account
with the Association until all Shares are paid for, with provision (i) for
prompt refund to subscribers if the transactions
Trident Securities, Inc.
Page 11
contemplated by the Plan and the Prospectus are otherwise not consummated or
(ii) for delivery to the Company if the transactions contemplated by the Plan
and the Prospectus are consummated.
(bb) No approval of any regulatory, supervisory or other public authority
is required of any of the Primary Parties in connection with the execution and
delivery of this Agreement or the issuance and sale of the Shares, except the
approval of the OTS, the Commission and the NASD and as may be otherwise
required under the securities laws of various states.
(cc) All contracts and other documents required to be filed as exhibits to
the Conversion Application and the Registration Statement have been filed with
the OTS and the Commission, respectively.
(dd) Xxxxxx X. Xxxxxxxxx, L.L.P. the public accounting firm which has
certified the audited financial statements of the Association included in the
Prospectus, are independent certified public accountants within the meaning of
the Code of Professional Ethics of the American Institute of Certified Public
Accountants.
(ee) Since the consummation of the MHC Reorganization, each of the Primary
Parties has (i) timely filed all required federal and state tax returns and no
deficiency has been asserted with respect to such returns by any taxing
authorities, (ii) paid all taxes that have become due, and (iii) made adequate
reserves for similar current tax liabilities, except where the failure to make
such filings, payments and reserves, or the assertion of such a deficiency,
would not have a Material Adverse Effect.
(ff) The records of account holders, depositors, borrowers and other
members of the Association delivered to Trident by the Association or its agent
for use in connection with the Conversion and Reorganization are reliable and
accurate in all material respects.
(gg) RP Financial, Inc. ("Appraiser"), the corporation which prepared an
appraisal of the estimated pro forma fair market value of the Common Stock, is
independent with respect to the Primary Parties within the meaning of the
Conversion Regulations.
(hh) The Primary Parties comply in all material respects with 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.
(ii) All supplemental sales literature, including but not limited to,
marketing materials, used by the Company in connection with the Offering, which
is required by the Conversion Regulations to be filed with the OTS or by the
1933 Act Regulations to be filed with the Commission, has been filed with the
OTS and the SEC, and such materials have been cleared for use by the OTS.
Trident Securities, Inc.
Page 12
(jj) To their best knowledge, the Primary Parties comply with all laws,
rules and regulations relating to environmental protection, and none of the
Primary Parties has been notified or is otherwise aware that any of them is
potentially liable, or is considered potentially liable, under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, or
any similar state law, except for violations which, if asserted, would not have
a Material Adverse Effect. There are no actions, suits, regulatory
investigations or other proceedings pending or, to the best knowledge of the
Primary Parties, threatened against the Primary Parties relating to
environmental protection, nor do any of the Primary Parties have any reason to
believe any such proceedings may be brought against any of them. To the best
knowledge of the Primary Parties, no disposal, release or discharge of hazardous
or toxic substances, pollutants or contaminants, including petroleum and gas
products, as any of such terms may be defined under federal, state or local law,
has occurred on, at or about any of the facilities or properties owned or leased
by any of the Primary Parties, except such disposal, release or discharge which
would not have a Material Adverse Effect.
(kk) None of the Primary Parties has knowingly made any payment of funds
of the Primary Parties as a loan for the purpose of purchasing the Shares
(except for the loan to be made by the Company to the ESOP).
(ll) The financial statements of the Association which are included in the
Registration Statement, the Conversion Application and the Prospectus present
fairly the statements of financial condition, income, stockholders' equity and
cash flows of the Association at the respective dates thereof and for the
respective periods covered thereby, and comply as to form in all material
respects with the applicable accounting requirements of the Conversion
Regulations, Regulation S-X of the Commission, and generally accepted accounting
principles ("GAAP") consistently applied throughout the periods involved (except
as noted therein). Such financial statements are consistent with the most recent
financial statements and other reports filed by the Association with the OTS,
except that accounting principles employed in such regulatory filings conform to
the requirements of such authorities and not necessarily to GAAP. The other
financial, statistical and pro forma information and related notes included in
the Prospectus present fairly the information shown therein on a basis
consistent with the audited and unaudited financial statements of the
Association included in the Registration Statement and the Prospectus, and as to
the pro forma adjustments, the adjustments made therein have been consistently
applied on the bases described therein.
Section 3. Representations and Warranties of Trident. Trident represents
and warrants to the Primary Parties that:
(a) Trident is registered as a broker-dealer with the Commission and no
withdrawal of its registration is pending or, to the knowledge of Trident,
threatened. Trident is in good standing with the Commission and the NASD.
Trident Securities, Inc.
Page 13
(b) Trident is validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation.
(c) The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly and validly authorized by
all necessary action on the part of Trident, and this Agreement is a legal,
valid and binding obligation of Trident, enforceable in accordance with its
terms (except as the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, reorganization or similar laws relating to or affecting
the enforcement of creditors' rights generally or the rights of creditors of
registered broker-dealers the accounts of whom may be protected by the
Securities Investor Protection Corporation or by general equity principles,
regardless of whether such enforceability is considered in a proceeding in
equity or at law, and except to the extent that the provisions of Sections 6 and
7 hereof may be unenforceable as against public policy. Trident has all
corporate power and authority necessary to perform all of its obligations under
this Agreement.
(d) Trident and, to Trident's knowledge, each of its employees, agents or
representatives who shall perform any of the services required hereunder to be
performed by Trident, is authorized and has all licenses, approvals and permits
necessary to perform the services to be rendered by it pursuant to this
Agreement. Trident is a registered selling agent in the jurisdictions listed on
Exhibit B hereto and no withdrawal of its registration is pending or, to the
knowledge of Trident, threatened. Trident will remain registered in such
jurisdictions in which the Company is relying on such registration for the sale
of the Shares, until the Conversion and Reorganization is consummated or
terminated.
(e) The execution and delivery of this Agreement by Trident, the
fulfillment of the terms set forth herein and the consummation of the
transactions contemplated hereby shall not violate or conflict with the
corporate charter or bylaws of Trident or violate, conflict with or constitute a
breach of, or default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, any material agreement, indenture or other
instrument to which Trident is a party or by which it or its property is bound
or under any governmental license or permit or any law, administrative
regulation, authorization, approval or order or court decree, injunction or
order by which Trident is bound, except where such events would not materially
and adversely affect the financial condition or operations of Trident.
(f) Any funds received by Trident to purchase Shares will be handled in
accordance with Rule 15c2-4 under the Securities Exchange Act of 1934, as
amended ("Exchange Act").
(g) No action or proceeding before the Commission, the NASD, any state
securities commission or any state or federal court is pending or, to Trident's
best knowledge, threatened concerning Trident's activities as a broker-dealer
(provided that for this purpose, Trident shall not regard any action as
"threatened" unless the Commission, the NASD, or any state securities
Trident Securities, Inc.
Page 14
commission or such court has manifested to the management of Trident or to its
counsel the present intention to initiate such action or proceeding).
(h) No action, suit, charge or proceeding is pending or, to the knowledge
of Trident, threatened against Trident which, if determined adversely to
Trident, would have a material adverse effect upon the ability of Trident to
perform its obligations under this Agreement.
Section 4. Covenants and Agreements of the Primary Parties. The Primary
Parties, jointly and severally, covenant and agree that:
(a) The Company shall deliver to Trident, from time to time, such number
of copies of the Prospectus as Trident may reasonably request. The Company
hereby authorizes and directs Trident to use the Prospectus in any lawful manner
in connection with the offer and sale of the Shares.
(b) The MHC will notify Trident immediately upon obtaining knowledge of
the following, and confirm the notice in writing: (i) when any amendment or
supplement to the Conversion Application is filed with the OTS or when any
supplement to the Prospectus is filed with the OTS; (ii) of the issuance by the
OTS of any stop order relating to the Conversion Application or the Prospectus
or of the initiation or the threat of any proceedings for such purpose; (iii) of
the receipt of any notice with respect to the suspension of the qualification of
the Shares for offering or sale in any jurisdiction; and (iv) of the receipt of
any comments from the OTS relating to the Conversion Application or the
Prospectus. In the event the OTS enters a stop order relating to the Conversion
Application or the Prospectus at any time, the MHC will make every reasonable
effort to obtain the lifting of such order at the earliest possible moment.
(c) The Company will notify Trident immediately upon obtaining knowledge
of the following, and confirm the notice in writing: (i) when any amendment or
supplement to the Registration Statement is filed with the Commission or when
any supplement to the Prospectus is filed with the Commission; (ii) of the
issuance by the Commission of any stop order relating to the Registration
Statement or the Prospectus or of the initiation or the threat of any
proceedings for such purpose; (iii) of the receipt of any notice with respect to
the suspension of the qualification of the Shares for offering or sale in any
jurisdiction; and (iv) of the receipt of any comments from the Commission
relating to the Registration Statement or the Prospectus. In the event the
Commission enters a stop order relating to the Registration Statement or the
Prospectus at any time, the Company will make every reasonable effort to obtain
the lifting of such order at the earliest possible moment.
(d) During the time when the Prospectus is used in connection with the
offer and sale of the Shares, the Primary Parties will comply in all material
respects with all applicable requirements of the 1933 Act and the 1933 Act
Regulations, as now in effect and as hereafter amended, as from time to time in
force, so far as is necessary to permit the continuance of offers
Trident Securities, Inc.
Page 15
and sales of or dealings in the Shares, in accordance with the provisions hereof
and the Prospectus. If, during the period when the Prospectus is used in
connection with the offer and sale of the Shares, any event relating to or
affecting any of the Primary Parties shall occur as a result of which it is
necessary to amend or supplement the Prospectus in order to make the Prospectus
not false or misleading in light of the circumstances existing at the time the
Prospectus is delivered to a purchaser of the Shares, the Primary Parties shall
prepare and furnish to Trident a reasonable number of copies of an amendment or
amendments or of a supplement or supplements to the Prospectus (in form and
substance reasonably satisfactory to counsel for Trident) which shall amend or
supplement the Prospectus so that, as amended or supplemented, the Prospectus
will 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 existing at the time the Prospectus is delivered to a purchaser of
the Shares, not misleading. The Primary Parties will not file or use any
amendment or supplement to the Conversion Application, the Registration
Statement or the Prospectus of which Trident has not first been furnished a copy
or as to which Trident shall reasonably object after having been furnished such
copy. For the purpose of this subsection (d), the Primary Parties shall furnish
such information with respect to themselves as Trident from time to time
reasonably may request.
(e) The Company will take all reasonably necessary action as may be
required to qualify or register the Shares for offer and sale by the Company, if
necessary, under the state securities or "blue sky" laws of such jurisdictions
as Trident and the Company may agree upon; provided, however, that the Company
shall not be required to offer or sell Conversion Shares in any jurisdiction in
which the Company would be obligated to file any general consent to service of
process in such jurisdiction, to qualify as a foreign corporation to do business
under the laws thereof or to register its directors or officers as brokers,
dealers, salesmen or agents therein. In each jurisdiction in which such
qualification or registration will be effected, the Company, unless Trident
agrees that such action is not necessary or advisable in connection with the
distribution of the Shares, will file and make such statements or reports as
are, or reasonably may be, required by the laws of such jurisdiction.
(f) The Company shall file with the Commission a registration statement
for the Shares under Section 12(g) of the Exchange Act, prior to the completion
of the Conversion and Reorganization and will request that such registration
statement become effective upon the completion of the Conversion and
Reorganization, and the Company will maintain the effectiveness of such
registration under Section 12(g) of the Exchange Act for not less than three
years or such shorter period as may be permitted by law.
(g) For a period of three years from the date of this Agreement or for
such shorter period of time during which the Company has a class of securities
registered under the Exchange Act, the Company will furnish the following to
Trident: (i) as soon as publicly available after the end of each fiscal year, a
copy of the Annual Report to Stockholders for such year; (ii) as soon as
publicly available, a copy of each nonconfidential report or definitive proxy
statement of the
Trident Securities, Inc.
Page 16
Company filed with the Commission under the Exchange Act or mailed to
stockholders; and (iii) from time to time, such other public information
concerning the Association and the Company as Trident may reasonably request.
(h) The Company and the Association will use the net proceeds from the
sale of the Shares in the manner set forth in the Prospectus under the caption
"Use of Proceeds."
(i) The Company will not deliver the Shares until each and every condition
set forth in Section 5 hereof has been satisfied in full, unless such condition
is waived in writing by Trident.
(j) The Primary Parties will take such actions and furnish such
information as are reasonably requested by Trident in order for Trident to
ensure compliance with the NASD's "Interpretation Relating to Free-Riding and
Withholding. "
(k) The liquidation account for the benefit of Eligible Account Holders
and Supplemental Eligible Account Holders will be duly established and
maintained in accordance with the requirements of the OTS.
(l) The Company and the Association will not sell, issue, contract to sell
or otherwise dispose of, for a period of 90 days after the Closing Date, without
Trident's prior written consent (which consent shall not be unreasonably
withheld), any shares of common stock other than (i) the Shares, (ii) any
Contingent Shares, or (iii) other than in connection with any plan or
arrangement described in the Prospectus, including existing stock benefit plans.
(m) The Company will use its best efforts to (i) encourage and assist at
least three market makers to establish and maintain a market for the Shares and
(ii) list the Shares on a national or regional securities exchange or on The
Nasdaq Stock Market effective on or prior to the Closing Date.
(n) The Company and the Association will maintain appropriate arrangements
for depositing all funds received from persons mailing subscriptions for or
orders to purchase Shares in the Offerings on an interest-bearing basis at the
rate described in the Prospectus until the Closing Date and satisfaction of all
conditions precedent to the release of their obligation to refund payments
received from persons subscribing for or ordering Shares in the Offerings in
accordance with the Plan and as described in the Prospectus or until refunds of
such funds have been made to the persons entitled thereto or withdrawal
authorizations canceled in accordance with the Plan and as described in the
Prospectus. The Primary Parties will maintain such records of all funds received
to permit the funds of each subscriber to be separately insured by the FDIC (to
the maximum extent allowable) and to enable the Association to make the
appropriate refunds of such funds in the event that such refunds are required to
be made in accordance with the Plan and as described in the Prospectus.
Trident Securities, Inc.
Page 17
(o) The Company will promptly take all necessary action to register as a
savings and loan holding company under the HOLA within 90 days after the Closing
Date.
(p) None of the Primary Parties will amend the Plan without notifying
Trident prior thereto.
(q) The Primary Parties shall assist Trident, if necessary, in connection
with the allocation of the Shares in the event of an oversubscription and shall
provide Trident with any information necessary to assist the Company in
allocating the Shares in such event ("Allocation Instructions"), and to the best
knowledge of the Primary Parties, such information shall be accurate and
reliable in all material respects.
(r) The Primary Parties shall use all reasonable efforts to receive the
approval of the OTS of the Holding Company Application on or before the Closing
Date.
Section 5. Conditions of Trident's Obligations. Except as may be waived by
Trident, the obligations of Trident set forth in this Agreement shall be subject
to the accuracy of the representations and warranties contained in Section 2
hereof as of the date hereof and as of the Closing Date, to the performance by
the Primary Parties of their respective covenants and obligations hereunder and
to the following additional conditions:
(a) On the Closing Date, the Primary Parties shall have satisfied the
conditions precedent to, and will have conducted the Conversion and
Reorganization in all material respects in accordance with, the Plan, the
Conversion Regulations and all applicable laws, regulations, decisions and
orders, including all terms, conditions, requirements and conditions precedent
to the Conversion and Reorganization imposed by the OTS
(b) The Registration Statement shall have been declared effective by the
Commission and the Conversion Application approved by the OTS not later than
5:30 p.m. on the date of this Agreement or, with Trident's consent, at a later
time and date. At the Closing Date, no stop order suspending the effectiveness
of the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission or any state
authority, and no order or other action suspending the authorization of the
Prospectus or the consummation of the Conversion and Reorganization shall have
been issued or proceedings therefor initiated or, to the best knowledge of the
Primary Parties, threatened by the Commission, the OTS, the FDIC, or any state
authority.
(c) On the Closing Date, Trident shall receive an opinion of Xxxxx Xxxx
Xxxxxxx & Xxxxxxx, L.L.P., special counsel to the Primary Parties, as to those
matters of federal securities and banking laws and the Louisiana Business
Corporation Law, set forth in Exhibit C hereto, dated as of the Closing Date and
addressed to Trident.
Trident Securities, Inc.
Page 18
(d) On the Closing Date, Trident shall receive a letter of Xxxxx Xxxx
Xxxxxxx & Xxxxxxx, L.L.P. dated as of the Closing Date, addressed to Trident, in
form and substance reasonably satisfactory to counsel for Trident and to the
effect that based upon such counsel's participation in conferences with
representatives of the Company and the Association, their counsel, the
independent appraiser and the independent public accountants for the Company and
the Association, Trident and Trident's counsel, review of various documents,
understanding of applicable law (including the requirements of form SB-2 and the
character of the Registration Statement contemplated thereby) and the experience
such counsel has gained in its practice under the Act, nothing has come to such
counsel's attention that would lead such counsel to believe (i) that the
Registration Statement (except as to information regarding Trident contained
therein and except as to the financial statements, notes to financial
statements, financial tables, pro forma and other financial and statistical data
and stock valuation information contained therein, with respect to which such
counsel need express no view), at the time it became effective and at the time
any post-effective amendment thereto became effective, contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements made therein not misleading
or (ii) that the Prospectus (except as to information regarding Trident
contained therein and except as to financial statements, notes to financial
statements, financial tables, pro forma and other financial and statistical data
and stock valuation information contained therein, with respect to which such
counsel need express no view), as of its date and as of the Closing Date
contained any untrue statement of a material fact or omitted to state a material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading. In issuing such letter, such counsel
may indicate that it has not confirmed the accuracy or completeness of or
otherwise verified the information contained in the Registration Statement or
the Prospectus, that it does not assume any responsibility for such information,
and that it is relying as to materiality as to factual matters on certificates
of officers and other factual representations by the Company and the
Association.
(e) Counsel for Trident shall have been furnished such documents as such
counsel reasonably may require for the purpose of enabling such counsel to
review or pass upon the matters required by Trident and for the purpose of
evidencing the accuracy, completeness or satisfaction of any of the
representations, warranties or conditions herein contained, including, but not
limited to, resolutions of the Boards of Directors of the Primary Parties
regarding the authorization of this Agreement and the transactions contemplated
hereby.
(f) Prior to and at the Closing Date, in the reasonable opinion of
Trident: (i) there shall have been no material adverse change in the Primary
Parties, taken as a whole, from that as of the latest date as of which such
condition is set forth in the Prospectus except as referred to therein; (ii)
there shall have been no material transaction entered into by any of the Primary
Parties from the latest date as of which the financial condition of the Primary
Parties is set forth in the Prospectus, other than transactions referred to or
contemplated therein, transactions in the ordinary course of business and
transactions which are not material to the Primary Parties, taken as a whole;
(iii) the Primary Parties shall not have received from the OTS or the FDIC any
direction
Trident Securities, Inc.
Page 19
(oral or written) to make any material change in the method of conducting their
respective businesses with which they have not complied (which direction if any,
shall have been disclosed to Trident) or which result in a Material Adverse
Effect; (iv) no action, suit or proceeding, at law or in equity, or before or by
any federal or state commission, board or other administrative agency, or before
any arbitrator or arbitrators, shall be pending or, to the best knowledge of the
Primary Parties, threatened against any of the Primary Parties or affecting any
of their respective assets that would result in a Material Adverse Effect; and
(v) the Shares shall have been qualified or registered, if necessary, for
offering and sale by the Company under the securities or "blue sky" laws of each
jurisdiction upon which Trident and the Company shall have agreed.
(h) At the Closing Date, Trident shall receive a certificate of the
President and the principal financial officer of each of the Primary Parties on
behalf of the Primary Parties, dated the Closing Date, to the effect that: (i)
they have carefully examined the Prospectus and, at the time the Prospectus
became authorized for use and at the Closing Date, the Prospectus (excluding
information contained therein with respect to Trident) 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 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, without limitation, any material adverse change in the business,
financial condition, income or operations of the Association; (iii) since the
date the Prospectus became authorized for use, the conditions set forth in
clauses (i) through (iv) inclusive of subsection (g) of this Section 5 have been
satisfied; (iv) no order has been issued by the Commission or the OTS to suspend
the effectiveness of the Prospectus or to terminate the Offerings and, to their
best knowledge, no action for such purposes has been instituted or threatened by
the Commission or the OTS; (v) to their best knowledge, no person has sought to
obtain review of the final action of the OTS approving the Plan pursuant to the
HOLA; and (vi) all of the representations and warranties contained in Section 2
hereof are true and correct with the same force and effect as though expressly
made on the Closing Date (except for those representations and warrants that are
as of a specific date) and all of the covenants and obligations of the Primary
Parties set forth in this Agreement have been fulfilled.
(i) At the Closing Date, Trident shall, if it has not already received,
receive, among other documents, (i) a copy of the order from the Commission
declaring the Registration Statement effective; (ii) a copy of the letters from
the OTS approving the Conversion Application and authorizing the use of the
Prospectus; and (iii) a copy of the letter from the OTS approving the Holding
Company Application.
(j) Concurrently with the execution of this Agreement, Trident shall have
received a letter from Xxxxxx X. Xxxxxxxxx, L.L.P., independent certified public
accountants for the Association, dated the date hereof and addressed to Trident,
in substance and form reasonably satisfactory to counsel for Trident, with
respect to the financial statements and certain financial information contained
in the Prospectus.
Trident Securities, Inc.
Page 20
(k) At the Closing Date, Trident shall receive a letter in form and
substance reasonably satisfactory to counsel for Trident from Xxxxxx X.
Xxxxxxxxx, L.L.P., independent certified public accountants, dated the Closing
Date and addressed to Trident, confirming the statements made by them in the
letter delivered by them pursuant to the preceding subsection as of a specified
date not more than five (5) business days prior to the Closing Date.
(l) All opinions, certificates, letters and documents prepared for
Trident's reliance shall be in compliance with the provisions hereof only if
they are, in the reasonable opinion of Trident, satisfactory to Trident. Any
certificates signed by an officer or director of any of the Primary Parties
prepared for Trident's reliance and delivered to Trident or to counsel for
Trident that specifically references this Agreement, shall be deemed a
representation and warranty by the Primary Parties to Trident as to the
statements made therein. If any condition to Trident's obligations hereunder to
be fulfilled prior to or at the Closing Date is not so fulfilled, Trident may
terminate this Agreement or, if Trident so elects, may waive any such conditions
which have not been fulfilled, or may extend the time of their fulfillment. If
Trident terminates this Agreement in accordance with the foregoing, the
Association shall reimburse Trident for its accountable expenses as provided in
Section 1(b)(iv) hereof.
Section 6. Indemnification. (a) The Primary Parties, jointly and
severally, hereby agree to indemnify and hold harmless Trident, its officers,
directors and employees and each person, if any, who controls Trident within the
meaning of Section 15 of the 1933 Act or Section 20(a) of the Exchange Act:
(i) Against any and all loss, liability, claim, damage and expense
whatsoever, including but not limited to, legal fees and expenses, reasonably
incurred by any of them in investigating, preparing to defend or defending
against any action, proceeding or claim (whether commenced or threatened) (A)
arising out of or based upon any breach of any representation or warranty by the
Primary Parties contained in this Agreement, (B) arising out of or based upon
the failure of any of the Primary Parties to fulfill any covenant or obligation
set forth in this Agreement, (C) arising out of or based upon any untrue or
alleged untrue statement of a material fact or the omission or alleged omission
of a material fact required to be stated or necessary to make the statements, in
light of the circumstances under which they were made, not misleading in (I) the
Registration Statement or the Prospectus or (II) any application (including the
Conversion Application and the Holding Company Application) or other document or
communication (in this Section 6, collectively the "Application") prepared or
executed by or on behalf of any of the Primary Parties and based upon written
information furnished by or on behalf of any of the Primary Parties with the
consent of any of the Primary Parties to qualify the Shares under the securities
laws of the United States or any state or filed with the Commission or the OTS,
unless such statement or omission was made in reliance upon and in conformity
with written information furnished to the Primary Parties with respect to
Trident by or on behalf of Trident expressly for use in the Registration
Statement, the Prospectus or any Application, or any amendment or
Trident Securities, Inc.
Page 21
supplement thereof, or (D) arising out of or based upon the Conversion and
Reorganization or the engagement of Trident under this Agreement. In no event,
however, shall the Primary Parties be liable to Trident under this Section 6(a)
if the loss, liability, claim, damage or expense is found in a final judgment by
a court of competent jurisdiction (not subject to further appeal) to have
principally and directly resulted from gross negligence or willful misconduct of
Trident. This indemnity shall be in addition to any liability that any of the
Primary Parties may have to Trident otherwise;
(ii) Against any and all loss, liability, claim, damage and expense
whatsoever to the extent of the aggregate amount paid in settlement of any
litigation, investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any untrue
statement or omission referenced in subsection (i) of this Section 6(a), or any
alleged untrue statement or omission referenced in subsection (i) of this
Section 6(a), if such settlement is effected with the prior written consent of
the Primary Parties; and
(iii) Against any and all loss, liability, claim, damage and expense
whatsoever arising out of (A) any instructions given by the Primary Parties to
Trident with respect to the allocation of the Conversion Shares among
subscribers or (B) any records of any account holders, depositors, borrowers and
other members of the Association delivered to Trident by the Association or its
agents for use during the Conversion and Reorganization.
(b) Trident hereby agrees to indemnify and hold harmless the Primary
Parties, their respective officers, directors and employees and each person, if
any, who controls the Primary Parties within the meaning of Section 15 of the
1933 Act or Section 20(a) of the Exchange Act to the same extent as the
foregoing indemnity from the Primary Parties to Trident, but only with respect
to (A) statements or omissions, if any, made in the Prospectus, the Registration
Statement or any Application in reliance upon, and in conformity with, written
information furnished to the Primary Parties with respect to Trident by or on
behalf of Trident expressly for use in the Prospectus, the Registration
Statement, or any Application; (B) any breach of any representation or warranty
by Trident contained in the Agreement; or (C) any liability of the Primary
Parties found in a final judgment by a court of competent jurisdiction (not
subject to further appeal) to have principally and directly resulted from gross
negligence or willful misconduct of Trident. This indemnity shall be in addition
to any liability that Trident may have to the Primary Parties otherwise.
(c) Promptly after receipt by an indemnified party under this Section 6 of
notice of the commencement of any action, proceeding or claim (whether commenced
or threatened), such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under this Section 6, notify the
indemnifying party of the commencement thereof; provided, however, that the
omission to so notify the indemnifying party will not relieve the indemnifying
party from any liability which it may have to any indemnified party unless the
failure to provide
Trident Securities, Inc.
Page 22
such notice results in the forfeiture by such party of substantial rights or
defenses. In case any such action is brought against any indemnified party, and
the indemnified party notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that the indemnifying party may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of the indemnifying party's
election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section 6 for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof, other than the reasonable cost of investigation, except as
otherwise provided herein. In the event the indemnifying party elects to assume
the defense of any such action and retain counsel acceptable to the indemnified
party, the indemnified party may retain additional counsel, but shall bear the
fees and expenses of such counsel, unless: (i) the indemnifying party shall have
specifically authorized the indemnified party to retain such counsel, or (ii)
the parties to such suit include such indemnifying party and the indemnified
party, and such indemnified party shall have been advised by counsel that one or
more material legal defenses may be available to the indemnified party which may
not be available to the indemnifying party, in which case the indemnifying party
shall not be entitled to assume the defense of such suit notwithstanding the
indemnifying party's obligation to bear the fees and expenses of such counsel.
In no event shall the indemnifying parties be liable for the fees and expenses
of more than one separate firm of attorneys (and any special counsel that said
firm may retain) for all indemnified parties in connection with any one action,
proceeding or claim or separate but similar or related actions, proceedings or
claims in the same jurisdiction arising out of the same general allegations or
circumstances. An indemnifying party against whom indemnity may be sought shall
not be liable to indemnify an indemnified party under this Section 6 if any
settlement of any such action is effected without such indemnifying party's
consent.
(d) To the extent applicable, this Section 6 is subject to and limited by
public policy and the provisions of applicable law, including but not limited to
Sections 23A and 23B of the Federal Reserve Act.
Section 7. Contribution. (a) In order to provide for just and equitable
contribution in circumstances in which the indemnity provided for in Section 6
hereof is for any reason held to be unavailable to Trident or the Primary
Parties other than in accordance with its terms, the Primary Parties, on the one
hand, and Trident, on the other, shall contribute to the aggregate losses,
liabilities, claims, damages, and expenses of the nature contemplated by such
indemnity incurred by the Primary Parties and Trident (i) in such proportion to
reflect the relative benefits received by the Primary Parties, on the one hand,
and Trident, on the other, from the offering of the Conversion Shares or (ii) if
the allocation provided by clause (i) in this Section 7 is not permitted by
applicable law, in such proportion as to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Primary
Parties, on the one hand, and Trident, on the other, in connection with the
actions that resulted in such losses, claims, damages,
Trident Securities, Inc.
Page 23
liabilities or judgments, as well as any other relevant equitable
considerations. The relative benefits received by the Primary Parties, on the
one hand, and Trident, on the other, shall be deemed to be in the same
proportion as the total gross proceeds from the sale of the Conversion Shares
received by the Primary Parties bear to the total fees received by Trident under
this Agreement. The relative fault of the Primary Parties, on the one hand, and
Trident, on the other, shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Primary Parties or by Trident, the relative intent of the
parties, the knowledge of the parties, access to information and opportunity to
correct or prevent such statement or omission.
(b) The Primary Parties and Trident agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation or by any other method of allocation which does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, Trident shall not be required
to contribute any amount in excess of the amount by which fees payable to
Trident pursuant to this Agreement exceed the amount of any damages which
Trident has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person adjudicated guilty
of fraudulent misrepresentation (within the meaning of Section ll(f) of the 0000
Xxx) shall be entitled to contribution from any person who is not adjudicated
guilty of such fraudulent misrepresentation.
(c) To the extent applicable, this Section 7 is subject to and limited by
public policy and the provisions of applicable law, including but not limited to
Sections 23A and 23B of the Federal Reserve Act.
Section 8. Survival of Agreements, Representations, Warranties and
Indemnities. The respective indemnities of the Primary Parties and of Trident
and the representations and warranties of the Primary Parties set forth in or
made pursuant to this Agreement shall remain in full force and effect regardless
of any termination or cancellation of this Agreement or any investigation made
by or on behalf of Trident or the Primary Parties or any controlling person or
indemnified party referred to in Section 6 hereof, and shall survive any
termination of this Agreement and/or the issuance of the Shares. Any successor
or assign of Trident or of the Primary Parties, any controlling person and any
legal representative of Trident or the Primary Parties shall be entitled to the
benefit of the respective agreements, indemnities, warranties and
representations contained in this Agreement.
Trident Securities, Inc.
Page 24
Section 9. Termination. (a) The obligations of Trident pursuant to this
Agreement shall terminate upon the earliest to occur of (i) completion,
termination or abandonment of the Plan by the Primary Parties, (ii) termination
of the Offerings, or (iii) 45 days after the completion of the Offerings unless
extended by written agreement of all parties.
(b) Notwithstanding the foregoing, Trident may terminate this Agreement by
giving notice at any time after this Agreement becomes effective, as follows:
(i) If the obligations of Trident cannot, in the reasonable opinion
of Trident, be fulfilled because of the material breach of any of the
representations or warranties contained in Section 2 hereof, the failure of the
Primary Parties to perform their covenants and obligations under this Agreement,
the failure of the Primary Parties to fulfill any of the covenants and
agreements set forth under Section 4 hereof or the failure of the Primary
Parties to fulfill conditions set forth at Section 5 hereof;
(ii) If any domestic or international event or act or occurrence has
materially disrupted the United States securities markets, such as to make it
impracticable, in the reasonable opinion of Trident, to proceed with the
Offerings; or if trading on the New York Stock Exchange shall have been
suspended; or if the United States shall have become involved in a war or major
hostilities; or if a general banking moratorium has been declared by a state or
federal authority; or if a moratorium in foreign exchange trading by major
international banks or persons has been declared; or if the Primary Parties
shall have sustained a material or substantial loss by, but not limited to,
fire, flood, accident, hurricane, earthquake, theft, sabotage or other calamity
or malicious act, whether or not said loss shall have been insured; or if there
shall have been a material adverse change in the condition or prospects of the
Primary Parties, taken as a whole.
(c) If Trident elects to terminate this Agreement as provided in Section
9(b), the Primary Parties shall be notified promptly by Trident by telephone or
telegram, confirmed by letter.
(d) (i) The Primary Parties may terminate this Agreement by giving notice
of a material breach of this Agreement by Trident or of a termination of the
Plan at any time after this Agreement becomes effective.
(ii) If the Primary Parties elect to terminate this Agreement as
provided in this Section 9(d), Trident shall be notified promptly by the Primary
Parties by telephone or telegram, confirmed by letter.
(e) If this Agreement is terminated for any of the reasons set forth in
this Section 9, the Primary Parties shall reimburse Trident for any expenses
incurred by Trident which are reimbursable in accordance with Section 1(b)(iv)
hereof.
Trident Securities, Inc.
Page 25
Section 10. Notices. All communications hereunder, except as herein
otherwise specifically provided, shall be in writing and:
If sent to Trident, shall be mailed, delivered or telegraphed and
confirmed by letter to:
R. Xxx Xxxxxxx, Xx.
Trident Securities, Inc.
0000 Xxx Xxxxx Xxxx, 0xx Xxxxx
Xxxxxxx, Xxxxx Xxxxxxxx 00000
with a copy to:
Xxxx Xxxxxx, Esq.
Xxxx Xxxxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C.
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
If sent to the Primary Parties, shall be mailed, delivered or telegraphed
and confirmed by letter to:
Xxxxxxxx Xxxxxxxx, Xx.
President and Chief Executive Officer
Ponchatoula Homestead Savings, F.A.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
with a copy to:
Xxxxxx X. Xxxxxx, Xx., Esq.
Xxxxx Xxxx Xxxxxxx & Xxxxxxx, L.L.P.
000 00xx Xxxxxx, X.X., 00xx Xxxxx
Xxxxxxxxxx, X.X. 00000
The Primary Parties shall be entitled to act and rely on any request,
notice, consent, waiver or agreement purportedly given on behalf of Trident when
the same shall have been given by the undersigned or any other officer of
Trident. Trident shall be entitled to act and rely on any request, notice,
consent, waiver, or agreement purportedly given on behalf of the Primary
Parties, when the same shall have been given by the undersigned or any other
officer of the Primary Parties.
Trident Securities, Inc.
Page 26
Section 11. Parties. This Agreement shall inure solely to the benefit of,
and shall be binding upon, Trident, the Primary Parties, and their controlling
persons and indemnified parties referred to in Section 6 hereof, and their
respective successors, legal representatives and assigns, and no other person
shall have or be construed to have any legal or equitable right, remedy or claim
under, or in respect of, or by virtue of, this Agreement or any provision herein
contained.
Section 12. Closing. At the Closing Date, Trident shall submit a list of
the persons subscribing for the Shares and the number of Shares so subscribed.
The Primary Parties shall deliver to Trident in next day funds the management
fee and remaining expenses due and owing to Trident as set forth in Section 1
hereof, and the opinions and certificates required hereby and other documents
deemed reasonably necessary by Trident 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 of this Agreement 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 such term, provision or covenant to any other
circumstance or situation shall not be affected thereby, and each term,
provision or covenant of this Agreement shall be valid and enforceable to the
full extent permitted by law. If, however, any term, provision or covenant of
this Agreement is declared invalid as unenforceable by a court of competent
jurisdiction, then the parties hereto shall in good faith amend this Agreement
to include an alternative provision that accomplishes a similar result.
Section 14. Construction. Unless governed by preemptive federal law, this
Agreement shall be construed in accordance with the internal laws of the State
of North Carolina (without regard to conflicts of laws principles).
Section 15. Counterparts. This Agreement may be executed in separate
counterparts, each of which when so executed and delivered shall be an original,
but all of which together shall constitute but one and the same instrument.
Section 16. Amendment. This Agreement may be amended only by a subsequent
writing signed by all parties hereto.
* * *
Trident Securities, Inc.
Page 27
If the foregoing correctly sets forth the arrangement between the Primary
Parties and Trident, please indicate acceptance thereof in the space provided
below for that purpose, whereupon this letter and Trident's acceptance shall
constitute a binding agreement.
Very truly yours,
HOMESTEAD BANCORP, INC.
By: _______________________________________
Its: President and Chief Executive Officer
HOMESTEAD MUTUAL HOLDING COMPANY
By: _______________________________________
Its: President and Chief Executive Officer
PONCHATOULA HOMESTEAD SAVINGS, F.A.
By: _______________________________________
Its: President and Chief Executive Officer
Agreed to and accepted as of
the date first above written
TRIDENT SECURITIES, INC.
By: ________________________________
Its:________________________________
EXHIBIT A
HOMESTEAD BANCORP, INC.
HOMESTEAD MUTUAL HOLDING COMPANY
PONCHATOULA HOMESTEAD SAVINGS, F.A.
Up to 977,500 Shares of Common Stock
of Homestead Bancorp, Inc.
($.01 Par Value Per Share)
Selected Dealers' Agreement
_________________, 1998
Gentlemen:
We have agreed to assist Homestead Bancorp, Inc. ("Company"), a Louisiana
corporation, Homestead Mutual Holding Company, Ponchatoula, Louisiana ("MHC"), a
federally chartered mutual holding company, and Ponchatoula Homestead Savings,
F.A., Ponchatoula, Louisiana ("Association"), a federally chartered stock
savings association, in connection with the offer and sale of up to 977,500
shares of the common stock, par value $.01 per share ("Conversion Shares"), of
the Company to be issued in connection with the Plan of Conversion of the MHC
and Agreement and Plan of Reorganization between the Company and the Association
("Plan"). Pursuant to the Plan, the following transactions will be effected: (i)
the MHC will convert to an interim federal stock savings association and merge
with and into the Association, with the Association as the surviving entity and
with the cancellation of the shares of common stock of the Association, $1.00
par value per share ("Association Common Stock"), held by the MHC as of the
Closing Date (as hereinafter defined), (ii) an interim federal stock savings
association formed by the Company will merge with and into the Association,
resulting in (a) the Association becoming a wholly owned subsidiary of the
Company and (b) the outstanding shares of Association Common Stock held by
persons other than the MHC ("Public Association Shares") being exchanged for
shares of common stock, $.01 par value per share, of the Company ("Exchange
Shares") pursuant to a specified exchange ratio ("Exchange Ratio") ("Exchange
Offering"), all as described in the Plan, and (iii) the Company will offer
shares of its common stock as described below (collectively, the "Conversion and
Reorganization"). The MHC, Association and Company are collectively referred to
as the "Primary Parties."
The total number of Conversion Shares to be offered may be decreased to a
minimum of 722,500 shares and increased to a maximum of 1,124,125 shares. The
price per share has been fixed at $10.00. The Conversion Shares, the number of
shares to be issued, and certain of the terms on which they are being offered,
are more fully described in the enclosed Prospectus dated _______, 1998
("Prospectus"). In connection with the Conversion and Reorganization, the
Company is offering for sale such Conversion Shares in a Subscription Offering
(as defined in the
A-1
Trident Securities, Inc.
Page 2
Prospectus). Any Shares not sold in the Subscription Offering shall be offered
to the general public in the Community Offering, including a syndicated
community offering as contemplated by the Agreement (as defined in the
Prospectus).
The Subscription and Community Offerings are being conducted under the
Plan adopted on February 25, 1998 by the Boards of Directors of the Association
and the MHC and on _________, 1998 by the Board of Directors of the Company. The
Subscription and Community Offerings are further being conducted in accordance
with the regulations of the OTS and subject to the provisions contained in the
Plan.
The Conversion Shares are also being offered in accordance with the Plan
by broker/dealers licensed by the National Association of Securities Dealers,
Inc. ("NASD") which have been approved by the Primary Parties ("Approved
Brokers").
We are offering the Approved Brokers (of which you are one) the
opportunity to participate in the solicitation of offers to buy the Conversion
Shares, and we shall pay you a fee in the amount of _____ percent (_____%) of
the dollar amount of the Conversion Shares sold on behalf of the Company by you,
as evidenced by the authorized designation of your firm on the order form or
forms for payment therefor to the special account established by the Association
for the purpose of holding such funds. It is understood, of course, that payment
of your fee shall be made only out of compensation received by us for the
Conversion Shares sold on behalf of the Company by you, as evidenced in
accordance with the preceding sentence. As soon as practicable after the closing
date of the offering, we shall remit to you, only out of our compensation as
provided above, the fees to which you are entitled hereunder.
Each order form for the purchase of Conversion Shares must set forth the
identity and address of each person to whom the certificates for such Conversion
Shares should be issued and delivered. Such order form also must clearly
identify your firm in order for you to receive compensation. You shall instruct
any subscriber who elects to send his order form to you to make any accompanying
check payable to "Homestead Bancorp, Inc."
This offer is made subject to the terms and conditions herein set forth
and is made only to Approved Brokers who are members in good standing of the
NASD who agree to comply with all applicable rules of the NASD, including,
without limitation, the NASD's Interpretation With Respect to Free-Riding and
Withholding and Section 24 of Article III of the NASD's Rules of Fair Practice.
Orders for Conversion Shares shall be subject to confirmation and we,
acting on behalf of the Primary Parties, reserve the right in our unfettered
discretion to reject any order in whole or in part, to accept or reject orders
in the order of their receipt or otherwise, and to allot. Neither
A-2
Trident Securities, Inc.
Page 3
you nor any other person is authorized by the Primary Parties or by us to give
any information or make any representations other than those contained in the
Prospectus in connection with the sale of any of the Conversion Shares. No
Approved Broker is authorized to act as agent for us when soliciting offers to
buy the Conversion Shares from the public or otherwise. No Approved Broker shall
engage in any stabilizing (as defined in Rule 10b-7 promulgated under the
Securities Exchange Act of 1934) with respect to the Conversion Shares during
the offering.
We and each Approved Broker assisting in selling Conversion Shares
pursuant hereto agree to comply with the applicable requirements of the
Securities Exchange Act of 1934 and applicable state laws and regulations. Each
selected dealer that is not a $250,000 net capital reporting broker/dealer
agrees that it shall not use a sweep arrangement and that it shall transmit all
customer checks by noon of the next business day after receipt thereof. In
addition, we and each selected dealer confirm that the Securities and Exchange
Commission interprets Rule l5c2-8 promulgated under the Securities Exchange Act
of 1934 as requiring that a Prospectus be supplied to each person who is
expected to receive a confirmation of sale 48 hours prior to delivery of such
person's order form.
We and each Approved Broker further agree that to the extent that your
customers desire to pay for shares with funds held by or to be deposited with
us, in accordance with the interpretations of the Securities and Exchange
Commission of Rule l5c2-4 promulgated under the Securities Exchange Act of 1934,
either (a) upon receipt of an executed order form or direction to execute an
order form on behalf of a customer to forward the offering price of the
Conversion Shares ordered on or before noon of the next business day following
receipt or execution of an order form by us to the Company for deposit in a
segregated account or (b) to solicit indications of interest in which event (i)
we shall subsequently contact any customer indicating interest to confirm the
interest and give instructions to execute and return an order form or to receive
authorization to execute the order form on the customer's behalf, (ii) we shall
mail acknowledgments of receipt of orders to each customer confirming interest
on the business day following such confirmation, (iii) we shall debit accounts
of such customers on the third business day ("Debit Date") following receipt of
the confirmation referred to in (i), and (iv) we shall forward complete order
forms together with such funds to the Company on or before noon on the next
business day and each selected dealer acknowledges that if the procedure in (b)
is adopted, our customers' funds are not required to be in their accounts until
the Debit Date.
Unless earlier terminated by us, this Agreement shall terminate upon the
closing date of the Conversion and Reorganization. We may terminate this
Agreement or any provisions hereof any time by written or telegraphic notice to
you. Of course, our obligations hereunder are subject to the successful
completion of the Conversion and Reorganization.
A-3
Trident Securities, Inc.
Page 4
You agree that at any time or times prior to the termination of this
Agreement you shall, upon our request, report to us the number of Conversion
Shares sold on behalf of the Company by you under this Agreement.
We shall have full authority to take such actions as we may deem advisable
in respect of all matters pertaining to the offering. We shall be under no
liability to you except for lack of good faith and for obligations expressly
assumed by us in this Agreement.
Upon application to us, we shall inform you as to the states in which we
believe the Conversion Shares have been qualified for sale under, or are exempt
from the requirements of, the respective blue sky laws of such states, but we
assume no responsibility or obligation as to your rights to sell Conversion
Shares in any state.
Additional copies of the Prospectus and any supplements thereto shall be
supplied in reasonable quantities upon request.
Any notice from us to you shall be deemed to have been duly given if
mailed, telephoned, or telegraphed to you at the address to which this Agreement
is mailed.
This Agreement shall be construed in accordance with the laws of the State
of North Carolina.
Please confirm your agreement hereto by signing and returning the
confirmations accompanying this letter at once to us at Trident Securities,
Inc., 0000 Xxx Xxxxx Xxxx, 0xx Xxxxx, Xxxxxxx, Xxxxx Xxxxxxxx 00000. The
enclosed duplicate copy shall evidence the agreement between us.
TRIDENT SECURITIES, INC.
By: ______________________________
Its: ______________________________
CONFIRMED AS OF:
_________________________, 1998
_______________________________________
A-4
Trident Securities, Inc.
Page 5
(Name of Dealer)
By: __________________________________
Its: __________________________________
A-5
EXHIBIT C
[Form of Opinion]
On the basis of and subject to the foregoing and the qualifications stated
below, we are of the following opinion.
(i) The Company has been incorporated and is validly existing as a
corporation under the laws of the State of Louisiana, and its Articles of
Incorporation and Bylaws comply in all material respects with Louisiana
law.
(ii) The Company has full power and authority to own, lease and
operate its properties and to conduct its business as such properties and
business are described in the Prospectus.
(iii) The Association is a stock savings association validly
existing under the HOLA with full power and authority to own its
properties and conduct its business as described in the Prospectus. To our
Actual Knowledge, the Association has obtained all federal banking
licenses, permits and other federal banking governmental authorizations
currently required for the conduct of its business as described in the
Prospectus, all of which are in full force and effect, except where the
failure to obtain such licenses, permits or governmental authorizations
would not have a Material Adverse Effect. The deposit accounts of the
Association are insured up to applicable limits by the FDIC, and the
Association is a member of the FHLB of Dallas.
(iv) The MHC is a federal mutual holding company validly existing
under the HOLA with full corporate power and authority to own its
properties and conduct its business as such properties and business are
described in the Prospectus. To our Actual Knowledge, the MHC has obtained
all federal banking licenses, permits and other federal banking
governmental authorizations currently required for the conduct of its
business as described in the Prospectus, all of which are in full force
and effect, except where the failure to obtain such licenses, permits or
governmental authorizations would not have a Material Adverse Effect.
(v) Upon consummation of the Conversion and Reorganization, the
Company will have authorized and outstanding Common Stock set forth in the
Prospectus, and the description of the Common Stock in the Prospectus is
accurate in all material respects.
(vi) The Plan complies in all material respects with the Conversion
Regulations (or appropriate waivers have been obtained) and has been duly
and validly approved and adopted by the Boards of Directors of the Primary
Parties. To our Actual Knowledge, the requisite number of votes of
stockholders of the Association, Public Stockholders and members of the
MHC, as the case may be, have been cast in favor of the Plan to approve it
under the terms of the Plan and applicable law. To our Actual Knowledge,
no person has
C-1
Trident Securities, Inc.
Page 2
sought to obtain regulatory or judicial review of the final action of the
OTS in approving the Plan or the Conversion Application pursuant to the
HOLA or the Conversion Regulations.
(vii) To our Actual Knowledge, the Conversion and Reorganization
will not result in the termination of insurance of the Association's
deposit accounts by the FDIC and no proceedings for the termination or
revocation of FDIC insurance of accounts are pending or threatened. The
description of the liquidation account in the Prospectus is accurate in
all material respects.
(viii)The Agreement has been duly and validly executed and delivered
by the Primary Parties. The execution and delivery of the Agreement by the
Primary Parties and the consummation of the Conversion and Reorganization
have been duly and validly authorized by all necessary corporate action on
the part of the Primary Parties. The Agreement is a legal, valid and
binding obligation of the Primary Parties, enforceable in accordance with
its terms, except as the enforceability thereof may be limited by (i)
bankruptcy, insolvency, reorganization, moratorium, receivership,
conservatorship or other laws relating to or affecting the enforcement of
creditors' rights generally or the rights of creditors of depository
institutions whose accounts are insured by the FDIC or savings and loan
holding companies the accounts of whose subsidiaries are insured by the
FDIC, (ii) general equity principles, regardless of whether such
enforceability is considered in a proceeding in equity or at law, or (iii)
laws relating to the safety and soundness of insured depository
institutions and their affiliates, and except to the extent that the
provisions of Sections 6 and 7 of the Agreement may be unenforceable as
against public policy or applicable law, including but not limited to
Sections 23A and 23B of the Federal Reserve Act (as to which no opinion is
expressed hereby).
(ix) The Primary Parties have all corporate power and authority
necessary to perform all of their respective obligations under the
Agreement and to consummate the Conversion and Reorganization. Subject to
the satisfaction of the conditions to the OTS' approval of the Conversion
Application and the Holding Company Application, (A) the Company has the
corporate power and authority to enable the Company to offer, issue and
sell the Shares in accordance with the Plan and the Prospectus, (B) the
OTS has approved the Holding Company Application, and (C) to our Actual
Knowledge, no action has been taken or is pending and none is threatened
to revoke any such authorization or approval.
(x) Except as set forth in the Prospectus, (A) there are no pending
or, to our Actual Knowledge, threatened legal or governmental proceedings
against or involving the assets of the Primary Parties that would have a
Material Adverse Effect, (B) to our Actual Knowledge, the Primary Parties
are not in violation of their respective charter and bylaws,
C-2
Trident Securities, Inc.
Page 3
which violation would have a Material Adverse Effect, and (C) to our
Actual Knowledge, no default exists, and no event has occurred which, with
notice or lapse of time, or both, would constitute a default, on the part
of the Primary Parties in any material respect in the performance of any
material obligation, agreement or condition contained in any material
contract or agreement, indenture or other instrument filed as an exhibit
to the Registration Statement, except where such a violation would not
have a Material Adverse Effect.
(xi) The execution, delivery and fulfillment of the terms of the
Agreement and the consummation of the Conversion and Reorganization by the
Primary Parties (A) do not and will not violate or conflict with the
respective Articles of Incorporation or Charter, as applicable, or Bylaws
of the Primary Parties or (B) to our Actual Knowledge, in any material
respect, 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 (I) any material agreement, indenture or other instrument
filed as an exhibit to the Registration Statement or (II) any published
federal banking law (subject to the satisfaction of certain postConversion
and Reorganization conditions imposed by the OTS in connection with its
approval of the Conversion Application and the Holding Company
Application), except where such violation, conflict, breach or default
would not have a Material Adverse Effect.
(xii) The issuance and sale of the Conversion Shares have been duly
and validly authorized by all necessary corporate action on the part of
the Company. The Conversion Shares, upon receipt of payment and issuance
in accordance with the terms of the Plan and the Agreement, will be
validly issued, fully paid, nonassessable and, except as disclosed in the
Prospectus, free of preemptive rights, and good title thereto shall be
transferred by the Company free and clear of all claims, encumbrances,
security interests and liens created by the Company. The certificates for
the Conversion Shares are in proper form and comply in all material
respects with applicable Louisiana law and OTS regulations.
(xiii) Except where appropriate waivers have been received and with
respect to certain post-Conversion and Reorganization reports or other
materials required to be filed by the Primary Parties and any other
actions required to be performed after the Closing Date, the Primary
Parties have, in all material respects, satisfied, to our Actual
Knowledge, the conditions of approval of the Conversion Application and
the Holding Company Application contained in the approval letters dated
_________________, 1998 and ___________________, 1998, respectively.
(xiv) Subject to the satisfaction of the post-Conversion and
Reorganization conditions in the OTS approval of the Conversion
Application and Holding Company Application, no further approval,
authorization, consent or other order of any federal regulatory agency is
required in connection with the execution and delivery of the
C-3
Trident Securities, Inc.
Page 4
Agreement, and the issuance of the Shares and consummation of the
Conversion and Reorganization, except with respect to the issuance to the
Association of its amended federal stock charter, except the filing or
submission of certain required post-Conversion and Reorganization reports
or other materials by the Primary Parties, except as may be required under
the securities laws of various jurisdictions, and except for any
approvals, authorizations, consents or other orders required to be
obtained by Trident or its employees (as to which no opinion in needed);
(xv) The statements in the Prospectus under the captions "Dividend
Policy," "The Conversion," "Regulation," "Taxation -- Federal Taxation,"
"Restrictions on Acquisition of the Company and Ponchatoula," and
"Description of Capital Stock of the Company," insofar as they are, or
refer to, statements of law or legal conclusions (excluding financial data
included therein, as to which no opinion is expressed hereby), have been
prepared or reviewed by us and are correct in all material respects;
(xvi) The Registration Statement is effective under the 1933 Act, no
stop order suspending its effectiveness has been issued under the 1933
Act, and, to our Actual Knowledge, no proceedings therefor have been
threatened by the Commission.
(xvii) The Conversion Application has been conditionally approved by
the OTS, and the Prospectus has been authorized for use by the OTS. To our
Actual Knowledge, no proceedings are pending by or before the OTS seeking
to revoke or rescind the orders approving the Conversion Application or
the Prospectus, nor are such proceedings threatened.
(xviii) At the time the Conversion Application, Regulation Statement
and Prospectus, in each case as amended, were approved or declared
effective, such documents complied as to form in all material respects
with the requirements of the Conversion Regulations, the rules and
regulations of the OTS, the 1933 Act and the 1933 Act Regulations, as the
case may be (in each case except as to financial statements, notes to
financial statements, financial tables and other financial and statistical
data and approved data included therein, and information with respect to
Trident included therein, as to which an opinion is not expressed). To our
Actual Knowledge, all documents and exhibits required to be filed with the
Conversion Application and the Registration Statement have been so filed.
In giving such opinion, such counsel may rely as to all matters of fact on
certificates of officers and directors of the Primary Parties and certificates
of public officials. Such counsel's opinion shall be limited to matters governed
by federal banking and securities laws and the State of Louisiana Business
Corporation Law. With respect to matters involving the application of
C-4
Trident Securities, Inc.
Page 5
Louisiana law, such counsel may rely, to the extent it deems proper and as
specified in its opinion, upon the opinion of local counsel satisfactory to
Trident's counsel. The opinion of Elias, Matz, Xxxxxxx & Xxxxxxx, L.L.P. shall
be governed by the Legal Opinion Accord ("Accord") of the American Bar
Association Section of Business Law (1991). The term "Actual Knowledge" as used
herein shall have the meaning set forth in the Accord. In addition, such opinion
may be limited to present statutes, regulations and judicial interpretation and
to facts as they exist on the date the legal opinion is issued; in rendering
such opinion, such counsel need assume no obligation to revise or supplement it
should the present laws be changed by legislative or regulatory action, judicial
decision or otherwise.
C-5
