FIRST INDEPENDENCE CORPORATION
Up to 185,590 Shares
COMMON STOCK
($0.01 Par Value)
Subscription Price for Conversion Shares: $10.00 Per Share
AGENCY AGREEMENT
----------------
November __, 1998
Trident Securities, Inc.
0000 Xxx Xxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Ladies and Gentlemen:
First Independence Corporation, a Delaware corporation (the "Company") and
Neodesha Savings and Loan Association, FSA, a federally chartered savings
association currently in mutual form (the "Association," which shall include all
references to the Association in the mutual or stock form, as indicated by the
context), with its deposit accounts insured by the Savings Association Insurance
Fund ("SAIF") administered by the Federal Deposit Insurance Corporation
("FDIC"), hereby confirm their agreement with Trident Securities, Inc.
("Trident" or "Agent") as follows:
Section 1. The Offering. The Association, in accordance with its plan of
conversion adopted by its Board of Directors of the Association (the "Plan"),
intends to convert from a federally chartered mutual savings association and to
simultaneously merge with and into First Federal Savings and Loan Association of
Independence, ("First Federal") a Federal savings and loan association (the
"Merger Conversion"). Pursuant to the Association's plan of merger conversion
("Plan of Merger Conversion"), non-transferable rights to subscribe
("Subscription Rights") for the Company's common stock ("Shares" or "Common
Stock") have been given, in order of priority, to: (1) Eligible Account Holders
(deposit account holders of the Association as of December 31, 1996); (2)
Tax-Qualified Employee Plans; (3) Supplemental Eligible Account Holders (deposit
account holders of the Association as of June 30, 1998); (4) members of the
Association, other than Eligible Account Holders and Supplemental Eligible
Account Holders, as of ________ ___, 1998, the voting record date for the
Special Meeting ("Other Members"); and (5) officers, directors and employees of
the Association (the "Subscription and
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Community Offering"). Concurrently, and subject to the prior rights of holders
of Subscription Rights, the Company is offering its common stock for sale in a
community offering to members of the general public, with a first preference to
natural persons residing in Xxxxxx County, Kansas (the "Community Offering"). It
is anticipated that shares not subscribed for in the Subscription and Community
Offering will be offered to certain members of the general public on a best
efforts basis through a selected dealers arrangement (the "Syndicated Community
Offering") (the Subscription Offering, the Community Offering and the Syndicated
Community Offering are referred to collectively as the "Subscription and
Community Offering"). All purchases will be subject to the maximum and minimum
purchase limitations and other terms and conditions described in the Plan of
Merger Conversion including the Association's and the Company's right, in their
sole discretion, to reject orders received in the Community and the Syndicated
Community Offering in whole or in part. The shares will be offered at a price
equal to 95% of the average market price of the Company's common stock (based on
the average of the closing bid and ask quotations on the NASDAQ SmallCap Market)
for the ten trading days ending on the expiration date of the offering (the
"Purchase Price").
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form SB-2 (File No. 333-________) (the
"Registration Statement") containing a prospectus relating to the Subscription
and Community Offering for the registration of the Shares under the Securities
Act of 1933 (the "1933 Act"), and has filed such amendments thereof, if any, and
such amended prospectuses as may have been required to the date hereof. The
prospectus, as amended, on file with the Commission at the time the Registration
Statement initially became 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 (the "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.
In accordance with the Rules and Regulations of the Office of Thrift
Supervision ("OTS"), the Association has filed with the OTS an Application for
Merger Conversion (the "Conversion Application"), including the prospectus, and
has filed such amendments thereto, if any, as may have been required by the OTS.
The Conversion Application has been approved by the OTS and the related
Prospectus has been authorized for use by the OTS.
Section 2. Retention of Trident: Compensation; Sale and Delivery of the
Shares. Subject to the terms and conditions herein set forth, the Company and
the Association hereby appoint Trident (i) as their exclusive financial advisory
and marketing agent to utilize its best efforts to solicit subscriptions for
Shares of the Common Stock and to advise and assist the Company and the
Association with respect to the Company's sale of the Shares in the Subscription
and Community Offering and (ii) to participate in the Subscription and Community
Offering in the areas of market making, research coverage and syndicate
formation (if necessary).
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On the basis of the representations, warranties, and agreements herein
contained, but subject to the terms and conditions herein set forth, Trident
accepts such appointment and agrees to consult with and advise the Company and
the Association as to the matters set forth in the letter agreement ("Letter
Agreement"), dated March 31, 1998, between the Association and Trident (a copy
of which is attached hereto as Exhibit A). It is acknowledged by the Company and
the Association that Trident shall not be required to purchase any Shares and
shall not be obligated to take any action which is inconsistent with all
applicable laws, regulations, decisions or orders. In the event of a Syndicated
Community Subscription and Community Offering, Trident will assemble and manage
a selling group of broker-dealers which are members of the National Association
of Securities Dealers, Inc. (the "NASD") to participate in the solicitation of
purchase orders for shares under a selected dealers' agreement ("Selected
Dealers' Agreement"), the form of which is set forth as Exhibit B to this
Agreement.
The obligations of Trident pursuant to this Agreement shall terminate upon
the completion or termination or abandonment of the Plan by the Company or upon
termination of the Subscription and Community Offering, but in no event later
than the date (the "End Date") which is 45 days after the Closing Date (as
hereinafter defined). All fees or expenses due to Trident but unpaid will be
payable to Trident in next day funds at the earlier of the Closing Date (as
hereinafter defined) or the End Date. In the event the Subscription and
Community Offering is extended beyond the End Date, the Company, the Association
and Trident may agree to renew this Agreement under mutually acceptable terms.
In the event the Company is unable to sell a minimum of __________ Shares
having an aggregate price of $1,530,000 (or such lesser amount approved by the
OTS) within the period herein provided, this Agreement shall terminate and the
Company shall refund to any persons who have subscribed for any of the Shares,
the full amount which it may have received from them plus accrued interest as
set forth in the Prospectus; and none of the parties to this Agreement shall
have any obligation to the other parties hereunder, except as otherwise set
forth in this Section 2 and in Sections 6, 8 and 9 hereof.
In the event the Subscription and Community Offering is terminated for any
reason not attributable to the action or inaction of Trident, Trident shall be
paid the fees and expenses due to the date of such termination pursuant to
subparagraphs (a) and (d) below.
If all conditions precedent to the consummation of the Conversion,
including, without limitation, the sale of all Shares required by the Plan to be
sold, are satisfied, the Company agrees to issue, or have issued, the Shares
sold in the Subscription and Community Offering and to release for delivery
certificates for such Shares on the Closing Date (as hereinafter defined)
against payment to the Company by any means authorized by the Plan, provided
however, that no funds shall be released to the Company until the conditions
specified in Section 7 hereof shall have been complied with to the reasonable
satisfaction of Trident and its counsel. The release of Shares against payment
therefor shall be made at _.m., Central Time, on a date and at a place
acceptable to the Company, the Association and Trident or such other time or
place as shall be
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agreed upon by the Company, the Association and Trident. Certificates for shares
shall be delivered directly to the purchasers in accordance with their
directions. The date upon which the Company shall release or deliver, or have
released or delivered, the Shares sold in the Subscription and Community
Offering, in accordance with the terms herein, is called the "Closing Date."
Trident shall receive the following compensation for their services
hereunder:
(a) A Management Fee of $85,000 payable at Closing Date. Such fee
shall be deemed to have been earned when due.
(b) For stock sold by other NASD member firms under selected dealer's
agreements, the commission shall not exceed a fee to be agreed upon jointly
by Trident and the Company to reflect market requirements at the time of
the stock allocation in a Syndicated Community Offering.
(c) Trident shall be reimbursed for allocable expenses incurred by
them, including legal fees. Trident's out-of-pocket expenses will not
exceed $12,500 and its legal fees will not exceed $35,000. Allocable
expenses will be billed on a monthly basis as incurred.
(d) The Company will pay all other expenses of the Conversion
including, but not limited to its attorneys' fees, National Association of
Securities Dealers ("NASD") filing fees, fees relating to any required
auditing and accounting, filing and registration fees and fees of either
Trident's attorneys or First Independence's attorneys relating to any
required state securities law filings, telephone charges, air freight,
rental equipment, supplies, transfer agent charges and costs of printing
all documents necessary in connection with the foregoing.
Section 3. Prospectus: Subscription and Community Offering. The Shares are
to be initially offered in the Subscription and Community Offering at the
Purchase Price as defined and set forth on the cover page of the Prospectus.
Section 4. Representations and Warranties. The Company and the Association
jointly and severally represent and warrant to Trident on the date hereof as
follows:
(a) The Registration Statement was declared effective by the
Commission on _______, 1998. At the time the Registration Statement,
including the Prospectus contained therein (including any amendment or
supplement thereto), became effective, the Registration Statement complied
in all material respects with the requirements of the 1933 Act and the 1933
Act Regulations and the Registration Statement, including the Prospectus
contained therein (including any amendment or supplement thereto), and any
information regarding the Company or the Association contained in Sales
Information (as such term is defined in Section 8 hereof) authorized by the
Company or the Association for use in connection with the Subscription and
Community Offering, did not contain an untrue statement of a material fact
or omit to state a
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material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading, and at the time any Rule 424(b) or (c) Prospectus was
filed with the Commission; provided, however, that the representations and
warranties in this Section 4(a) shall not apply to statements or omissions
made in reliance upon and in conformity with written information furnished
to the Company or the Association by Trident expressly regarding Trident
for use in the Prospectus under the captions "Marketing Arrangements" or
statements in or omissions from any Sales Information or information filed
pursuant to state securities or blue sky laws or regulations regarding
Trident.
(b) The Association has filed with the Department of the Treasury,
Office of Thrift Supervision ("OTS"), the Conversion Application and has
filed such amendments thereto and supplementary materials as may have been
required to the date hereof including copies of the Association's Proxy
Statement, to be dated ___________, 1998 relating to the Conversion (the
"Proxy Statement"), and the Prospectus. The OTS has, by letter dated
__________, 1998, approved the Conversion Application, such order remains
in full force and effect and no order has been issued by the OTS suspending
or revoking such order and no proceedings therefor have been initiated or,
to the knowledge of the Company or the Association, threatened by the OTS.
At the date of such approval and at the Closing Date referred to in Section
2, the Conversion Application complied and will comply in all material
respects with the applicable provisions of the OTS' Conversion Regulations
except as waived in writing by the OTS. The Conversion Application,
including the Prospectus (including any amendment or supplement thereto),
do not include any untrue statement of 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; provided,
however, that the representations and warranties in this Section 4(b) shall
not apply to statements or omissions made in reliance upon and in
conformity with written information furnished to the Company or the
Association by Trident expressly regarding Trident for use in the
Prospectus contained in the Conversion Application under the caption
"Marketing Arrangements" or statements in or omissions from any sales
information or information filed pursuant to state securities or blue sky
laws or regulations regarding Trident.
(c) No order has been issued by the Commission or the OTS preventing
or suspending the use of the Prospectus and no action by or before any such
government entity to revoke any approval, authorization or order of
effectiveness related to the Conversion is, to the best knowledge of the
Company or the Association, pending or threatened.
(d) To the best knowledge of the Company, no person has sought to
obtain review of the final action of the OTS in approving or taking no
objection to the Plan or in approving the Conversion or the Holding Company
Application pursuant to the Conversion Regulations, the HOLA, or any other
applicable statute or regulation.
(e) At the time of their use, the Proxy Statement and any other proxy
solicitation materials will comply in all material respects with the
applicable provisions of the Conversion Regulations and will not contain an
untrue statement of a material fact or omit to state a material
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fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The Company and
the Association will promptly file the Prospectus and any supplemental
sales literature with the OTS. The Prospectus and all supplemental sales
literature, as of the date the Registration Statement became effective and
at the Closing Date referred to in Section 2, complied and will comply in
all material respects with the applicable requirements of the Conversion
Regulations and, at or prior to the time of their first use, will have
received all required authorizations of the OTS for use in final form.
(f) At the time of their use, the Proxy Statement and any other proxy
solicitation materials will comply in all material respects with the
applicable provisions of the Conversion Regulations and will not contain an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The Prospectus
and all supplemental sales literature, as of the date the Registration
Statement became effective and at the Closing Time referred to in Section
2, complied and will comply in all material respects with the applicable
requirements of the Conversion Regulations and, at or prior to the time of
their first use, will have received all required authorizations of the OTS
for use in final form.
(g) The OTS has not, by order or otherwise, prevented or suspended the
use of the Prospectus or any supplemental sales literature authorized by
the Company or the Association for use in connection with the Subscription
and Community Offerings.
(h) At the Closing Time referred to in Section 2, the Company and the
Association will have completed the conditions precedent to the Conversion
in accordance with the Plan, the applicable Conversion Regulations and all
other applicable laws, regulations, decisions and orders, including all
material terms, conditions, requirements and provisions precedent to the
Conversion imposed upon the Company or the Association by the OTS, or any
other regulatory authority, other than those which the regulatory authority
permits to be completed after the Conversion. As of the Closing Time, as
defined in Section 2 hereof, the Company, the Association and its
subsidiaries will have completed the conditions precedent to the Merger in
accordance with the Agreement and Plan of Merger and Reorganization
("Merger Agreement"), provisions of the FDIA and HOLA and all other
applicable laws, regulations, decisions and orders, including all material
terms, conditions, requirements and provisions precedent to the Merger
imposed upon the Company or the Association by the OTS, or any other
regulatory authority, other than those which the regulatory authority
permits to be completed after the effective time of the Merger ("Effective
Time").
(i) Xxxxxxxx & Company, which prepared the valuation of the
Association as part of the Conversion, has advised the Company that they
satisfy all requirements for an appraiser set forth in the Conversion
Regulations.
(j) The accountants who certified First Federal and the financial
statements and supporting schedules of the Association included in the
Registration Statement have advised the
6
Company that they are independent public accountants within the meaning of
the Code of Ethics of the AICPA, and that such accountants are, with
respect to the Company, First Federal and the Association, independent
certified public accountants as required by the 1933 Act and the 1933 Act
Regulations.
(k) The consolidated financial statements and the related notes
thereto included in the Registration Statement and the Prospectus present
fairly the financial position of each of (i) the Company, its consolidated
subsidiaries and the Association and except as otherwise stated in the
Registration Statement, said financial statements have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis; and the supporting schedules and tables included in the
Registration Statement present fairly the information required to be stated
therein.
(l) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as otherwise stated
therein (A) there has been no material adverse change in the financial
condition, results of operations or business affairs of the Company, its
subsidiaries or the Association whether or not arising in the ordinary
course of business, and (B) except for transactions specifically referred
to or contemplated in the Prospectus, there have been no transactions
entered into by the Company, its subsidiaries or the Association other than
those in the ordinary course of business, which are material with respect
to the Company and its subsidiaries considered as one enterprise.
(m) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware with
corporate power and authority to own, lease and operate its properties and
to conduct its business as described in the Prospectus; and the Company is
duly qualified as a foreign corporation to transact business in each
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except
where the failure to so qualify would not have a material adverse effect on
the financial condition, results of operations or business affairs of the
Company and its subsidiaries considered as one enterprise.
(n) Upon consummation of the Conversion, the authorized, issued and
outstanding capital stock of the Company will be within the range set forth
in the Prospectus under "Capitalization" (except for subsequent issuances,
if any, pursuant to reservations, agreements or employee benefit plans
referred to in the Prospectus); no shares of Common Stock have been or will
be issued and outstanding prior to the Closing Time referred to in Section
2; at the time of Conversion, the Securities will have been duly authorized
for issuance and, when issued and delivered by the Company pursuant to the
Plan against payment of the consideration calculated as set forth in the
Plan, will be duly and validly issued and fully paid and non-assessable;
the terms and provisions of the Common Stock and the capital stock of the
Company conform to all statements relating thereto contained in the
Prospectus; and the issuance of the Securities is not subject to preemptive
or other similar rights.
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(o) The Association, as of the date hereof, is a federally chartered
savings association in mutual form with full corporate power and authority
to own, lease and operate its properties and to conduct its business as
described in the Prospectus; the Company, its subsidiaries and the
Association have obtained all licenses, permits and other governmental
authorizations currently required for the conduct of their respective
businesses or required for the conduct of their respective businesses as
contemplated by the Conversion Application, except where the failure to
obtain such licenses, permits or other governmental authorizations would
not have a material adverse effect on the financial condition, results of
operations or business affairs of the Company, its subsidiaries, or the
Association considered as one enterprise; all such licenses, permits and
other governmental authorizations are in full force and effect and the
Company, its subsidiaries and the Association are in all material respects
in compliance therewith; neither the Company, its subsidiaries, nor the
Association has received notice of any proceeding or action relating to the
revocation or modification of any such license, permit or other
governmental authorization which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, might have a
material adverse effect on the financial condition, results of operations
or business affairs of the Company, its subsidiaries, or the Association,
considered as one enterprise; and the Association is in good standing under
the laws of the United States and is qualified as a foreign corporation in
each jurisdiction in which the failure to so qualify would have a material
adverse effect on the financial condition, results of operations or
business affairs of the Company, its subsidiaries, or the Association,
considered as one enterprise.
(p) The deposit accounts of the Association are insured by the FDIC
and upon consummation of the Conversion, the liquidation account for the
benefit of the Association's eligible account holders and supplemental
eligible account holders will be duly established in accordance with the
requirements of the Conversion Regulations.
(q) No shares of Association common stock have been or will be issued
prior to the Closing Time referred to in Section 2; and as of Closing Time
referred to in Section 2, all of the issued and outstanding capital stock
of the Association will be duly authorized, validly issued and fully paid
and nonassessable, and all such capital stock will be owned beneficially
and of record by the Company free and clear of any mortgage, pledge, lien,
encumbrance or claim.
(r) The Company and the Association have taken all corporate action
necessary for them to execute, deliver and perform this Agreement, and this
Agreement has been duly executed and delivered by, and is the valid and
binding agreement of, the Company and the Association, enforceable in
accordance with its terms, except as may be limited by bankruptcy,
insolvency or other laws affecting the enforceability of the rights of
creditors generally and judicial limitations on the right of specific
performance and except as the enforceability of indemnification and
contribution provisions may be limited by applicable securities laws.
(s) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus and prior to the
Closing Time, except as otherwise may be indicated or contemplated in the
Prospectus, neither the Company nor the Association
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nor any of their respective subsidiaries will have (A) issued any
securities or incurred any material liability or obligation, direct or
contingent, or borrowed money, except borrowings in the ordinary course of
business from the same or similar sources and in similar amounts as
indicated in the Prospectus, or (B) entered into any transaction or series
of transactions which is material in light of the business of the Company,
the Association and its subsidiaries, taken as a whole.
(t) No approval of any regulatory or supervisory or other public
authority is required in connection with the execution and delivery of this
Agreement or the issuance of the Shares, except for the approval of the OTS
of the Conversion Merger under the provisions of the FDIA and the HOLA, the
declaration of effectiveness of any required post-effective amendment to
the Registration Statement by the Commission and approval thereof by the
OTS, the issuance of the federal stock charter by the OTS and as may be
required under the securities law of various jurisdictions.
(u) Neither the Company, its subsidiaries, nor the Association, is in
violation of its charter or bylaws; and neither the Company, its
subsidiaries, nor the Association is in default (nor has any event occurred
which, with notice or lapse of time or both, would constitute a default) in
the performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which the Company, its subsidiaries, or
the Association is a party or by which it or any of them may be bound, or
to which any of the property or assets of the Company, its subsidiaries, or
the Association is subject, except for such defaults that would not,
individually or in the aggregate, have a material adverse effect on the
financial condition, results of operations or business of the Company, its
subsidiaries, and the Association considered as one enterprise.
(v) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated herein have been duly
authorized by all necessary corporate action and do not and will not
conflict with or constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company, its subsidiaries, or the Association pursuant to,
any contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company, its subsidiaries, or the Association is a
party or by which it or any of them may be bound, or to which any of the
property or assets of the Company or any of its subsidiaries is subject,
except for such defaults that would not, individually or in the aggregate,
have a material adverse effect on the financial condition, results of
operations or business affairs of the Company, its subsidiaries, or the
Association considered as one enterprise; nor will such action result in
any violation of the provisions of the charter or bylaws of the Company,
its subsidiaries, or the Association; nor will such action result in any
violation of any applicable law, administrative regulation or
administrative or court decree except for violations that would not impair
the ability of the Company and the Association to execute, deliver and
perform under this Agreement or consummate the transactions contemplated
herein and except for violations that would not, individually or in the
aggregate, have a material adverse effect on the financial condition,
results of operations or business of the Company, its subsidiaries, and the
Association considered as one enterprise.
9
(w) No labor dispute with the employees of the Company, its
subsidiaries, or the Association exists or, to the knowledge of the Company
or the Association, is imminent.
(x) The Company, the Association and its subsidiaries have good and
marketable title to all properties and assets for which ownership is
material to the business of the Company, its subsidiaries, or the
Association and to those properties and assets described in the Prospectus
as owned by them, free and clear of all liens, charges, encumbrances or
restrictions, except such as are described in the Prospectus or are not
material in relation to the business of the Company, its subsidiaries, or
the Association as one enterprise; and all of the leases and subleases
material to the business of the Company, its subsidiaries, or the
Association under which the Company, its subsidiaries, or the Association
hold properties, including those described in the Prospectus, are valid and
binding agreements of the Company, its subsidiaries and the Association
enforceable in accordance with their terms.
(y) The Company, its subsidiaries and the Association are not in
violation of any directive from the OTS or the FDIC to make any material
change in the method of conducting their respective businesses; the
Association, has conducted and is conducting its business so as to comply
in all material respects with all applicable statutes, regulations and
administrative and court decrees (including, without limitation, all
regulations, decisions, directives and orders of the OTS or the FDIC).
(z) There is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending, or, to the
knowledge of the Company or the Association, threatened, against or
affecting the Company, its subsidiaries, or the Association which is
required to be disclosed in the Registration Statement (other than as
disclosed therein), or which might result in any material adverse change in
the financial condition, results of operations or business affairs of the
Company, its subsidiaries, or the Association considered as one enterprise,
or which might materially and adversely affect the consummation of the
Conversion; all pending legal or governmental proceedings to which the
Company, its subsidiaries, or the Association is a party or of which any of
their respective property or assets is the subject which are not described
in the Registration Statement, including ordinary routine litigation
incidental to the business, are considered in the aggregate not material;
and there are no contracts or documents of the Company or its subsidiaries
which are required to be filed as exhibits to the Registration Statement or
the Conversion Application which have not been so filed.
(aa) The Association has obtained an opinion of its counsel, Silver,
Xxxxxxxx & Xxxx, L.L.P., with respect to the legality of the Securities to
be issued and the federal income tax consequences of the Conversion and the
opinion of Xxxxx Xxxxxxxx, LLP as to Kansas tax matters, copies of which
are filed as exhibits to the Registration Statement; all material aspects
of the aforesaid opinions are accurately summarized in the Prospectus; the
facts and representations upon which such opinions are based are truthful,
accurate and complete in all material respects; and neither the Association
nor the Company has taken any action inconsistent therewith.
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(bb) The Company is not required to be registered under the Investment
Company Act of 1940, as amended.
(cc) All of the loans represented as assets on the most recent
financial statements or selected financial information of the Association
included in the Prospectus meet or are exempt from all requirements of
federal, state or local law pertaining to lending, including without
limitation truth in lending (including the requirements of Regulations Z
and 12 C.F.R. Part 226 and Section 563.99), real estate settlement
procedures, consumer credit protection, equal credit opportunity and all
disclosure laws applicable to such loans, except for violations which, if
asserted, would not result in a material adverse effect on the financial
condition, results of operations or business of the Company, its
subsidiaries and the Association considered as one enterprise.
(dd) To the knowledge of the Company and the Association, none of the
Company, the Association or employees of the Association has made any
payment of funds of the Company or the Association as a loan for the
purchase of the Common Stock or made any other payment of funds prohibited
by law, and no funds have been set aside to be used for any payment
prohibited by law.
(ee) The Company, its subsidiaries and the Association are in
compliance in all material respects with the applicable financial
recordkeeping and reporting requirements of the Currency and Foreign
Transaction Reporting Act of 1970, as amended, and the rules and
regulations thereunder.
(ff) Neither the Company, its subsidiaries, nor the Association, nor
any properties owned or operated by the Company, its subsidiaries, or the
Association is in violation of or liable under any Environmental Law (as
defined below), except for such violations or liabilities that,
individually or in the aggregate, would not have a material adverse effect
on the financial condition, results of operations or business affairs of
the Company, its subsidiaries, or the Association considered as one
enterprise. There are no actions, suits or proceedings, or demands, claims,
notices or investigations (including, without limitation, notices, demand
letters or requests for information from any environmental agency)
instituted or pending, or to the knowledge of the Company or the
Association, threatened, relating to the liability of any property owned or
operated by the Company, its subsidiaries, or the Association, under any
Environmental Law. For purposes of this subsection, the term "Environmental
Law" means any federal, state, local or foreign law, statute, ordinance,
rule, regulation, code, license, permit, authorization, approval, consent,
order, judgment, decree, injunction or agreement with any regulatory
authority relating to (i) the protection, preservation or restoration of
the environment (including, without limitation, air, water, vapor, surface
water, groundwater, drinking water supply, surface soil, subsurface soil,
plant and animal life or any other natural resource), and/or (ii) the use,
storage, recycling, treatment, generation, transportation, processing,
handling, labeling, production, release or disposal of any substance
presently listed, defined, designated or classified as hazardous, toxic,
radioactive or dangerous, or otherwise regulated, whether by type or by
quantity, including any material containing any such substance as a
component.
11
(gg) The Company, its subsidiaries and the Association have filed all
federal income and state and local franchise tax returns required to be
filed and have made timely payments of all taxes shown as due and payable
in respect of such returns, and no deficiency has been asserted with
respect thereto by any taxing authority.
(hh) The Company has received approval to have the Securities quoted
on the National Association of Securities Dealers' Automated Quotation
Stock Market ("Nasdaq National Market") effective as of the Closing Time.
Section 5. Representations and Warranties of Trident.
(a) Trident represents and warrants to the Company and the Association
that:
(i) Trident Securities, Inc. is a corporation and is validly
existing in good standing under the laws of the State of North
Carolina with full power and authority to provide the services to be
furnished to the Association and the Company hereunder.
(ii) 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 has been duly and validly executed and delivered by
Trident and is the legal, valid and binding agreement of Trident,
enforceable in accordance with its terms, except as may be limited by
bankruptcy, insolvency or other laws affecting the enforceability of
the rights of creditors generally and judicial limitations on the
right of specific performance and except as the enforceability of
indemnification and contribution provisions may be limited by
applicable securities laws.
(iii) Each of Trident and its employees, agents and
representatives who shall perform any of the services hereunder shall
be duly authorized and empowered, and shall have all licenses,
approvals and permits necessary to perform such services.
(iv) No approval of any regulatory or supervisory or other public
authority is required in connection with Trident's execution and
delivery of this Agreement, except as may have been received.
(v) There is no suit or proceeding or charge or action before or
by any court, regulatory authority or government agency or body or, to
the best knowledge of Trident, pending or threatened, which might
materially adversely affect Trident's performance under this
Agreement.
12
Section 5.1 Covenants of the Company and the Association. The Company and
the Association hereby jointly and severally covenant with Trident as follows:
(a) The Company will not, at any time after the date the Registration
Statement is declared effective, file any amendment or supplement to the
Registration Statement without providing Trident and its counsel an
opportunity to review such amendment or supplement or file any amendment or
supplement to which amendment or supplement Trident or its counsel shall
reasonably object.
(b) The Association will not, at any time after the Conversion
Application is approved by the OTS, file any amendment or supplement to
such Conversion Application without providing Trident and its counsel an
opportunity to review such amendment or supplement or file any amendment or
supplement to which amendment or supplement Trident or its counsel shall
reasonably object.
(c) The Company and the Association will use their best efforts to
cause any post-effective amendment to the Registration Statement to be
declared effective by the Commission and any post-effective amendment to
the Conversion Application to be approved by the OTS and will immediately
upon receipt of any information concerning the events listed below notify
Trident: (i) when the Registration Statement, as amended, has become
effective; (ii) when the Conversion Application, as amended, has been
approved by the OTS; (iii) of any comments from the Commission or the OTS
or any other governmental entity with respect to the Conversion or the
transactions contemplated by this Agreement; (iv) of the request by the
Commission or the OTS or any other governmental entity for any amendment or
supplement to the Registration Statement, the Conversion Application or for
additional information; (v) of the issuance by the Commission or the OTS or
any other governmental entity of any order or other action suspending the
Subscription and Community Offering or the use of the Registration
Statement or the Prospectus or any other filing of the Company or the
Association under the Conversion Regulations, or other applicable law, or
the threat of any such action; (vi) the issuance by the Commission or OTS
of any stop order suspending the effectiveness of the Registration
Statement or the approval of the Conversion Application, or of the
initiation or threat of initiation or threat of any proceedings for any
such purpose; or (vii) of the occurrence of any event mentioned in
paragraph (f) below. The Company and the Association will make every
reasonable effort (i) to prevent the issuance by the Commission or the OTS
of any such order and, if any such order shall at any time be issued, (ii)
to obtain the lifting thereof at the earliest possible time.
(d) The Company and the Association will deliver to Trident and to its
counsel two conformed copies of the Registration Statement and the
Conversion Application, as originally filed and of each amendment or
supplement thereto, including all exhibits. Further, the Company and the
Association will deliver such additional copies of the foregoing documents
to counsel to Trident as may be required for any NASD filings.
13
(e) The Company and the Association will furnish to Trident, from time
to time during the period when the Prospectus (or any later prospectus
related to this offering) is required to be delivered under the 1933 Act or
the Securities Exchange Act of 1934, (the "1934 Act"), such number of
copies of such Prospectus (as amended or supplemented) as Trident may
reasonably request for the purposes contemplated by the 1933 Act, the 1933
Act Regulations, the 1934 Act or the rules and regulations promulgated
under the 1934 Act (the "1934 Act Regulations"). The Company authorizes
Trident to use the Prospectus (as amended or supplemented, if amended or
supplemented) in any lawful manner contemplated by the Plan in connection
with the sale of the Shares by Trident.
(f) The Company and the Association will comply with any and all
material terms, conditions, requirements and provisions with respect to the
Conversion and Merger imposed by the Commission, the OTS, the Conversion
Regulations or the HOLA and regulations promulgated thereunder, and by the
1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations to be complied with prior to or subsequent to the Closing Date
and when the Prospectus is required to be delivered, the Company and the
Association will comply, at their own expense, with all material
requirements imposed upon them by the Commission, the OTS, the Conversion
Regulations, the HOLA, and by the 1933 Act, the 1933 Act Regulations, the
1934 Act and the 1934 Act Regulations, in each case as from time to time in
force, so far as necessary to permit the continuance of sales or dealing in
shares of Common Stock during such period in accordance with the provisions
hereof and the Prospectus.
(g) If, at any time during the period when the Prospectus relating to
the Shares is required to be delivered, any event relating to or affecting
the Company, the Association or a subsidiary shall occur, as a result of
which it is necessary or appropriate, in the opinion of counsel for the
Company and the Association to amend or supplement the Registration
Statement or Prospectus in order to make the Registration Statement or
Prospectus not misleading in light of the circumstances existing at the
time the Prospectus is delivered to a purchaser, the Company and the
Association will, at their expense, prepare and file with the Commission
and the OTS, and furnish to Trident a reasonable number of copies of an
amendment or amendments of, or a supplement or supplements to, the
Registration Statement and Prospectus (in form and substance satisfactory
to Trident and its counsel after a reasonable time for review) which will
amend or supplement the Registration Statement and Prospectus so that as
amended or supplemented it will not contain an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in light of the circumstances existing at the time
the Prospectus is delivered to a purchaser, not misleading. For the purpose
of this Agreement, the Company and the Association each will timely furnish
to Trident such information with respect to itself as Trident may from time
to time reasonably request.
(h) At the Closing Date referred to in Section 2, the Plan and Merger
Agreement will have been adopted by the Board of Directors of the Company
and the Board of Directors of the Association and the offer and sale of the
Shares and exchange of Exchange Shares will have been conducted in all
material respects in accordance with the Plan, Merger Agreement, the
Conversion Regulations, and all other applicable laws, regulations,
decisions and orders, including all terms, conditions, requirements and
provisions precedent to the Conversion and Xxxxxx imposed upon the Company
or the Association by the Commission, the OTS, or any other regulatory
authority and in the manner described in the Prospectus.
14
(i) Upon completion of the sale by the Company of the Shares
contemplated by the Prospectus, (i) the Association will be converted and
merged with and into First Federal pursuant to the Plan and Merger
Agreement, and (ii) the Company will have no direct subsidiaries other than
First Federal. The Conversion will have been effected in all material
respects in accordance with all applicable statutes, regulations, decisions
and orders; and, except with respect to the filing of certain post-sale,
post-Conversion reports, and documents in compliance with the 1933 Act
Regulations, and all terms, conditions, requirements and provisions with
respect to the Conversion (except those that are conditions subsequent)
imposed by the Commission and the OTS, if any, will have been complied with
by the Company and the Association in all material respects or appropriate
waivers will have been obtained and all material notice and waiting periods
will have been satisfied, waived or elapsed.
(j) The Company and the Association will take all necessary actions,
in cooperation with Trident, and furnish to whomever Trident may direct,
such information as may be required to qualify or register the Shares for
offering and sale by the Company or to exempt such Shares from
registration, or to exempt the Company as a broker-dealer and its officers,
directors and employees as broker-dealers or agents under the applicable
securities or blue sky laws of such jurisdictions in which the Shares are
to be offered and sold as Trident and the Company and the Association may
reasonably agree upon; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to qualify
to do business in any jurisdiction in which it is not so qualified. In each
jurisdiction where any of the Shares shall have been qualified or
registered as above provided, the Company will make and file such
statements and reports in each fiscal period as are or may be required by
the laws of such jurisdiction.
(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 or issue, contract
to sell or otherwise dispose of, for a period of 180 days after the Closing
Date, without Trident's prior written consent, any shares of Common Stock
other than the Shares or other than in connection with any plan or
arrangement described in the Prospectus.
(m) The Company shall register its Common Stock under Section 12(g) of
the 1934 Act prior to the consummation of the Subscription and Community
Offering pursuant to the Plan and shall request that such registration be
effective no later than upon completion of the Conversion. The Company
shall maintain the effectiveness of such registration for not less than
three (3) years or such shorter period as may be required by the OTS.
15
(n) During the period during which the Company's Common Stock is
registered under the 1934 Act or for three years from the date hereof,
whichever period is greater, the Company will furnish to its stockholders
as soon as practicable after the end of each fiscal year an annual report
of the Company (including a consolidated balance sheet and statements of
consolidated income, stockholders' equity and cash flows of the Company and
its subsidiaries as at the end of and for such year, certified by
independent public accountants in accordance with Regulation S-X under the
1933 Act and the 1934 Act).
(o) During the period of three years from the date hereof, the Company
will furnish to Trident: (i) as soon as practicable after such information
is publicly available, a copy of each report of the Company furnished to or
filed with the Commission under the 1934 Act or any national securities
exchange or system on which any class of securities of the Company is
listed or quoted (including, but not limited to, reports on Forms 10-K,
10-Q and 8-K and all proxy statements and annual reports to stockholders);
(ii) a copy of each other non-confidential report of the Company mailed to
its stockholders or filed with the Commission or OTS, or any other
supervisory or regulatory authority or any national securities exchange or
system on which any class of securities of the Company is listed or quoted,
each press release and material news items and additional documents and
information with respect to the Company or the Association as Trident may
reasonably request; and (iii) from time to time, such other nonconfidential
information concerning the Company or the Association as Trident may
reasonably request.
(p) 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."
(q) Other than as permitted by the Conversion Regulations, HOLA, the
1933 Act, the 1933 Act Regulations, and the laws of any state in which the
Shares are registered or qualified for sale or exempt from registration,
neither the Company nor the Association will distribute any prospectus or
other offering material in connection with the offer and sale of the
Shares.
(r) The Company will use its best efforts to (i) encourage and assist
Trident 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
National Market of the Nasdaq Stock Market effective on or prior to the
Closing Date.
(s) First Federal will maintain appropriate arrangements for
depositing all funds received from persons mailing subscriptions for or
orders to purchase Shares in the Subscription and Community Offering 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
First Federal's
16
obligation to refund payments received from persons subscribing for or
ordering Shares in the Subscription and Community Offering 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 cancelled in accordance with the Plan and as described in
the Prospectus. First Federal 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 First Federal 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.
(t) The Company and the Association will take such actions and furnish
such information as are reasonably requested by Trident in order for
Trident to ensure compliance with the NASD's "Interpretation Relating to
Free Riding and Withholding."
(u) The Association will not amend the Plan of Conversion without
notifying Trident prior thereto.
(v) The Company 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 in allocating the Shares in
such event.
(w) Prior to the Closing Date, the Company and the Association will
inform Trident of any event or circumstances of which it is aware as a
result of which the Registration Statement, the Conversion Application
and/or Prospectus, as then amended or supplemented, would contain an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein not misleading.
Section 5.2 Covenants of Trident. Trident hereby covenants with the Company
and the Association as follows:
(a) During the period when the Prospectus is delivered, Trident will
comply, in all material respects and at its own expense, with all
requirements imposed upon it by the Commission and the NASD, including to
the extent applicable, by the 1933 Act and the 1934 Act and the rules and
regulations promulgated thereunder.
(b) Trident will distribute copies of the Prospectus and Sales
Information in connection with the sales of the Common Stock only in
accordance with NASD and SEC regulations, the 1933 Act and the rules and
regulations promulgated thereunder.
Section 6. Payment of Expenses. Whether or not the Conversion is completed
or the sale of the Shares by the Company is consummated, the Company and the
Association jointly and severally agree to pay or reimburse Trident for: (a) all
filing fees in connection with all filings with the NASD; (b) any stock issue or
transfer taxes which may be payable with respect to the sale of the Shares; (c)
all reasonable expenses of the Conversion, including but not limited to, the
Company's and the Association's attorneys' fees, transfer agent, registrar and
other agent charges, fees relating to auditing and accounting or other advisors
and costs of printing all documents necessary in connection with the Conversion;
and (d) Xxxxxxx's attorneys' fees. In the event the Company is unable to sell a
minimum of Shares with an aggregate value of $1,530,000 or the Conversion is
terminated or otherwise abandoned, the Company and the Association shall
reimburse Trident in accordance with Section 2 hereof.
17
Section 7. Conditions to Trident's Obligations. Trident's obligations
hereunder, as to the Shares to be issued at the Closing Date, are subject, to
the extent not waived by Trident, to the condition that all representations and
warranties of the Company and the Association herein are, at and as of the
commencement of the Subscription and Community Offering and at and as of the
Closing Date, true and correct in all material respects, the condition that the
Company and the Association shall have performed all of their obligations
hereunder to be performed on or before such dates, and to the following further
conditions:
(a) At the Closing Date, the Company and the Association shall have
conducted the Merger Conversion in all material respects in accordance with
the Plan, Merger Agreement, the Conversion Regulations, and all other
applicable laws, regulations, decisions and orders, including all terms,
conditions, requirements and provisions precedent to the Conversion imposed
upon them by the OTS.
(b) The Registration Statement has been declared effective by the
Commission, the Conversion Application approved by the OTS and Merger
Application approved by 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; and at the
Closing Date, the Holding Company Application shall have been approved by
the OTS and no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings
therefore 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 or Merger shall have been issued or
proceedings therefore initiated or, to the Company's or the Association's
knowledge threatened by the Commission, the OTS, or any other federal or
state authority.
(c) At the Closing Date, Trident shall have received:
(1) The favorable opinion, dated as of the Closing Date and
addressed to Trident and for its benefit, of Silver, Xxxxxxxx & Xxxx,
special counsel for the Company and the Association, in form and
substance to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware and has full corporate power and authority to
own, lease and operate its properties and to conduct its business
as described in the Registration Statement and the Prospectus and
to enter into
18
and perform its obligations under this Agreement. The Company is
duly qualified as a foreign corporation to transact business and
is in good standing in each jurisdiction where it owns or leases
any material properties or conducts any material business, unless
the failure to so qualify would not have a material adverse
effect on the financial condition, results of operations or
business of the Company.
(ii) The Association is organized and is validly existing as
a federally chartered savings association under the laws of the
United States in mutual form of organization and upon the
Conversion will become a duly organized and validly existing
federally chartered savings association in capital stock form of
organization under the laws of the United States, in both
instances duly authorized to conduct its business and own its
property as described in the Registration Statement and
Prospectus.
(iii) The Association is a member of the FHLB-Topeka. The
Association is an insured depository institution under the
provisions of Section 4(a) of the FDI Act, as amended, and no
proceedings for the termination or revocation of such insurance
are, to the best of such counsel's knowledge, pending or
threatened; the description of the liquidation account as set
forth in the Prospectus under the caption "Effects on Depositors
and Borrowers of Neodesha" to the extent that such information
constitutes matters of law and legal conclusions has been
reviewed by such counsel and is accurate in all material
respects.
(iv) Upon consummation of the Conversion, the authorized,
issued and outstanding capital stock of the Company will be
within the range of aggregate values set forth in the Prospectus
under the caption "Capitalization," and except for presently
issued and outstanding shares of the Company as set forth under
the caption "Common Stock Prices and Dividends," no shares of
Common Stock have been issued prior to the Closing Date; at the
time of the Conversion, the Shares subscribed for pursuant to the
Subscription and Community Offering will have been duly and
validly authorized for issuance, and when issued and delivered by
the Company pursuant to the Plan against payment of the
consideration calculated as set forth in the Plan and the
Prospectus, will be duly and validly issued and fully paid and
non-assessable; the issuance of the Shares is not subject to
statutory preemptive rights (except for Subscription Rights
granted pursuant to the Plan) and the terms and provisions of the
Shares conform in all material respects to the description
thereof contained in the Prospectus. To the best of such
counsel's knowledge, upon the issuance of the Shares, good title
to the Shares will be transferred from the Company to the
purchasers thereof against payment therefor, subject to such
claims as may be asserted against the purchasers thereof by
third-party claimants.
19
(v) The OTS has duly approved the Conversion Application
and, to the best of such counsel's knowledge, no action is
pending or threatened respecting the OTS's approval of the
Conversion Application; the Conversion Application complies as to
form in all material respects with the Conversion Regulations of
the OTS.
(vi) The execution and delivery of the Agreement and the
consummation of the transactions contemplated hereby have been
duly and validly authorized by all necessary action on the part
of the Company and the Association; and the Agreement is a valid
and binding obligation of the Company and the Association,
enforceable in accordance with its terms, except as the
enforceability thereof may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium, conservatorship,
receivership or, other similar laws now or hereafter in effect
affecting the enforceability of the rights of creditors generally
or the rights of creditors of federally chartered savings
associations and their holding companies, (ii) general principles
of equity, (iii) laws relating to the safety and soundness of
insured depository institutions and their holding companies; and
(iv) applicable law with respect to the indemnification and/or
contribution provisions contained herein, (regardless of whether
such enforceability is considered in a proceeding in equity or at
law), including, without limitation, Sections 23A and 23B of the
Federal Reserve Act; and such action will not result in any
violation of the provisions of the certificate of incorporation,
bylaws or charter, as applicable, of the Company or the
Association or any applicable federal law, act, regulation
(except that no opinion need be rendered with respect to the
securities or blue sky laws of various jurisdictions or the rules
and regulations of the NASD and/or the National Market System of
the Nasdaq Stock Market).
(vii) The Plan has been duly adopted by the required vote of
the directors of the Company and the Directors of the Association
and, based upon the certificate of the inspector of election, by
the depositors and borrowers of the Association.
20
(viii) Subject to the satisfaction of the conditions to the
OTS's approval of the Conversion, the Company and the Association
are not required to receive any further approval, authorization,
consent or other order of, register with, or submit a notice to
any other federal agency in connection with the execution and
delivery of the Agreement, the issuance of the Shares and the
consummation of the Conversion, except as may be required under
the securities or blue sky laws of various jurisdictions (as to
which no opinion need be rendered), except as may be required
under the rules and regulations of the NASD and/or the National
Market System of the Nasdaq Stock Market (as to which no opinion
need be rendered) and except for the registration of the Company
as a savings association holding company.
(ix) The Registration Statement is effective under the 1933
Act and no stop order suspending the effectiveness has been
issued under the 1933 Act or, to the best of such counsel's
knowledge, proceedings therefor pending or threatened by the
Commission. (x) At the time that the Registration Statement
became effective, (i) the Registration Statement (as amended or
supplemented, if so amended or supplemented) (other than the
financial statements, the notes thereto and other tabular,
financial, statistical and appraisal data included therein or
omitted therefrom, as to which no opinion need be rendered)
complied as to form in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations, and
(ii) the Prospectus (other than the financial statements, the
notes thereto and other tabular, financial, statistical and
appraisal data included therein or omitted therefrom, as to which
no opinion need be rendered) complied as to form in all material
respects with the requirements of the 1933 Act and the 1933 Act
Regulations.
(xi) The terms and provisions of the Shares of the Company
conform, in all material respects, to the description thereof
contained in the Registration Statement and Prospectus, and the
form of certificate used to evidence the Shares complies with
applicable law.
(xii) The descriptions in the Conversion Application, the
Registration Statement and the Prospectus of the contracts,
indentures, mortgages, loan agreements, notes, leases or other
instruments filed as exhibits thereto are accurate in all
material respects and fairly present the information required to
be shown.
(xiii) To the best of such counsel's knowledge the Company
and the Association have conducted the Conversion in all material
respects in accordance with applicable requirements of the Plan,
the Conversion Regulations, and all other applicable regulations,
decisions and orders thereunder, including all material
applicable terms, conditions, requirements and conditions
precedent to the Conversion imposed upon the Company or the
Association by the OTS and, to the best of such counsel's
knowledge, no person has sought to obtain review of the final
action of the OTS in approving the Plan.
21
(xiv) To the best of such counsel's knowledge, the Company,
its subsidiaries, and the Association have obtained all material
federal licenses, permits and other Federal governmental
authorizations currently required under the HOLA and all
applicable rules and regulations promulgated thereunder for the
conduct of their businesses and to the best of such counsel's
knowledge all such licenses, permits and other governmental
authorizations are in full force and effect, and the Company, its
subsidiaries, and the Association are in all material respects
complying therewith, except whether the failure to have such
licenses, permits and other governmental authorizations or the
failure to be in compliance therewith would not have a material
adverse affect on the business or operations of the Association,
the Company and its subsidiaries, taken as a whole.
(xv) The Association's charter and bylaws in mutual form
and, upon the completion of the Conversion, in stock form, comply
in all material respects with the OTS.
(xvi) To the best of such counsel's knowledge, neither the
Company nor the Association is in violation of any directive from
the OTS to make any material change in the method of conducting
its respective business.
(xvii) The information in the Prospectus under the captions
"Regulation," "The Merger Conversion," "Restrictions on
Acquisitions of the Company" and "Description of Capital Stock,"
to the extent that such information constitutes matters of law,
summaries of legal matters, documents or proceedings, or legal
conclusions, has been reviewed by such counsel and is correct in
all material respects. The description of the Conversion process
under the caption "The Merger Conversion," in the Prospectus has
been reviewed by such counsel and is in all material respects
correct. The discussion of Federal statutes or regulations
described or referred to in the Prospectus are, in all material
respects, accurate summaries. The information regarding the
federal tax opinion under the caption "Tax Consequences of Merger
Conversion" has been reviewed by such counsel and constitutes an
accurate summary of the opinion rendered by such counsel to the
Company and the Association with respect to such matters subject
to the qualifications and limitations noted therein.
22
(xviii) The Association has the power and authority to
consummate the transactions contemplated by the Merger Agreement.
(xix) The Merger Agreement has been duly authorized,
executed and delivered by the Association and constitutes the
valid and binding obligation of the Association enforceable in
accordance with its terms subject to (i) applicable bankruptcy,
insolvency and similar laws affecting creditors' rights and
remedies generally or the rights of creditors of federal savings
associations, (ii) as to enforceability, general principles of
equity, whether applied in a court of law or a court of equity,
and (iii) laws relating to the safety and soundness of insured
depository institutions.
(xx) To the best knowledge of such counsel all corporate
acts and other proceedings required to be taken by or on the part
of the Company and the Association to consummate the transactions
contemplated by the Merger Agreement have been properly taken;
neither the execution and delivery of the Merger Agreement, nor
the consummation of the transactions contemplated thereby, with
and without the giving of notice or the lapse of time, or both,
will violate any provision of the Charter or Bylaws of the
Association.
(xxi) Except as disclosed in such opinion, to the knowledge
of such counsel there are no actions, suits, proceedings or
investigations (public or private) of any nature pending or
threatened that challenge the validity or propriety of the
transactions contemplated by the Conversion or the Merger
Agreement or which seek or threaten to restrain, enjoin or
prohibit or to obtain substantial damages in connection with the
consummation of such transactions.
(xxii) All regulatory and governmental approvals and
consents which are necessary to be obtained by the Association
and its subsidiaries to permit the execution, delivery and
performance of the Conversion and the Merger Agreement have been
obtained.
23
(xxiii) All conditions precedent to consummation of the
Conversion and the Merger have been satisfied, including but not
limited to those referenced in the Merger Agreement, all
statutory waiting periods with respect to all regulatory and
governmental approvals of the Acquisition have expired and there
are no facts or circumstances which would preclude the immediate
consummation of the Merger.
(2) The favorable opinion, dated as of the Closing Date, of
Xxxxx, Xxxx, Xxxxxxx & Xxxxxxx L.L.P., Xxxxxxx's counsel, with respect
to such matters as Trident may reasonably require. Such opinion may
rely upon the opinions of counsel to the Company and the Association,
and as to matters of fact, upon certificates of officers and directors
of the Company and the Association delivered pursuant hereto or as
such counsel shall reasonably request.
(3) In giving their opinions required by subsections 1 and 2,
respectively, of this Section, Silver Freedman and Xxxx and Xxxxx,
Xxxx, Xxxxxxx & Xxxxxxx L.L.P. shall each additionally state that
nothing has come to their attention that would lead them to believe
that the Registration Statement (except for financial statements, the
notes thereto and other financial, statistical data and appraisal
included therein, as to which counsel need make no statement), at the
time it became effective, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or that the
Prospectus (except for financial statements and schedules and other
financial or statistical data included therein, as to which counsel
need make no statement), at the time the Registration Statement became
effective or at Closing Time, included an untrue statement of a
material fact or omitted to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading. In giving their opinions,
Xxxxxx Xxxxxxxx and Xxxx and Xxxxx, Xxxx, Xxxxxxx & Xxxxxxx L.L.P. may
rely as to matters of fact on certificates of officers and directors
of the Company and the Association and certificates of public
officials.
(4) In giving their opinions Silver Freedman and Xxxx and Xxxxx,
Xxxx, Xxxxxxx & Xxxxxxx L.L.P. state that they have not independently
verified the information with respect to the Company, its
subsidiaries, or the Association contained in the Registration
Statement and the Prospectus. For purposes of opinions required
hereunder, no proceedings shall be deemed to be pending, no order or
stop order shall be deemed to be issued, and no action shall be deemed
to be instituted unless, in each case, either a director or executive
officer of the Company, its subsidiaries, or the Association, or the
firm giving the opinion shall have received a copy of such
proceedings, order, stop order or action. The opinions of Silver
Xxxxxxxx and Xxxx and Xxxxx, Xxxx, Xxxxxxx & Xxxxxxx L.L.P. shall be
governed by the provisions of The Legal Opinion Accord (the "Accord")
of the American Bar Association Section of Business Law (1991) and the
term "actual knowledge" and "to the best of such counsel's knowledge"
as used herein shall have the meaning set forth in the Accord for the
term "Actual Knowledge."
24
(d) At the Closing Date, Trident shall have received the Officers'
Certificates attached as Exhibit A.
(e) At Closing Time, there shall not have been, since the date hereof
or since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change in
the financial condition, results of operations or business affairs of the
Company, its subsidiaries, or the Association, whether or not arising in
the ordinary course of business, and the Agent shall have received a
certificate of the Chief Executive Officer of the Company and of the
Association, the President of the Company and the Association and the chief
financial or chief accounting officer of the Company and of the
Association, dated as of Closing Time, to the effect that (i) there has
been no such material adverse change, (ii) there shall have been no
material transaction entered into by the Company or the Association from
the latest date as of which the financial condition of the Company or the
Association as set forth in the Registration Statement and the Prospectus
other than transactions referred to or contemplated therein and
transactions in the ordinary course of business and consistent with past
practices, (iii) neither the Company nor the Association shall have
received from the OTS any direction (oral or written) to make any material
change in the method of conducting its business with which it has not
complied (which direction, if any, shall have been disclosed to the Agent)
or which materially and adversely would affect the business, financial
condition or results of operations of the Company or the Association, (iv)
the representations and warranties in Section I hereof are true and correct
with the same force and effect as though expressly made at and as of the
Closing Time, (v) the Company and the Association have complied with all
agreements and satisfied all conditions on their part to be performed or
satisfied at or prior to Closing Time, (vi) no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been initiated or threatened by the
Commission, and (vii) no order suspending the Subscription and Community
Offerings or the authorization for final use of the Prospectus has been
issued and no proceedings for that purpose have been initiated or
threatened by the OTS and no person has sought to obtain regulatory or
judicial review of the action of the OTS in approving the Plan in
accordance with the Conversion Regulations.
(f) At the Closing Date, Trident shall receive a certificate of the
Chief Executive Officer and the Chief Financial Officer of the Company and
a certificate of the Chief Executive Officer and the Chief Financial
Officer of the Association, both dated as of such Closing Date, to the
effect that: (i) they have reviewed the Prospectus and, in their opinion,
at the time the Prospectus became authorized for final use, the Prospectus
did not contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading; (ii) since
the date the Prospectus became authorized for final use, no material
adverse change in the financial condition, or in the earnings, capital,
properties or business of the Company and the Association has occurred and,
to their knowledge, no other event has occurred, which should have been set
forth in an amendment or supplement to the Prospectus which has not been so
set forth, and the conditions set forth in this Section 7 have been
satisfied; (iii) since the respective dates as of which information is
given in the
25
Registration Statement and Prospectus, there has been no material adverse
change in the financial condition, results of operations or business
prospects of the Company or the Association, independently, or of the
Company and the Association considered as one enterprise, whether or not
arising in the ordinary course of business; (iv) the representations and
warranties in Section 4 are true and correct with the same force and effect
a though expressly made at and as of the Closing Date; (v) the Company and
the Association have complied in all material respects with all agreements
and satisfied all conditions on their part to be performed or satisfied at
or prior to the Closing Date and will comply in all material respects with
all obligations to be satisfied by them after Conversion; (vi) no stop
order suspending the effectiveness of the Registration Statement is pending
or, to the best knowledge of the Company or the Association, threatened by
the Commission or any state authority; (vii) no order suspending the
Subscription and Community Offering, the Conversion, the Merger of the
Association with and into First Federal or the effectiveness of the
Prospectus has been issued and no proceedings for that purpose are pending
or, to the best knowledge of the Company or the Association, threatened by
the OTS, the Commission or any other federal or state authority; and (viii)
to the best knowledge of the Company or the Association, no person has
sought to obtain review of the final action of the OTS approving the Plan.
(g) Prior to and at the Closing Date: (i) in the reasonable opinion of
Trident, there shall have been no material adverse change in the financial
condition, or in the earnings or business of the Association independently,
or of the Company, the Association and the Subsidiary considered as one
enterprise, from that as of the latest dates as of which such condition is
set forth in the Prospectus other than transactions referred to or
contemplated therein; (iii) the Company or the Association shall not have
received from the OTS any direction (oral or written) to make any material
change in the method of conducting their business with which it has not
complied (which direction, if any, shall have been disclosed to Trident) or
which materially and adversely would affect the business, operations or
financial condition or income of the Company and the Association considered
as one enterprise; (iv) the Company and the Association shall not have been
in material default (nor shall an event have occurred which, with notice or
lapse of time or both, would constitute a default) under any material
provision of any agreement or instrument relating to any outstanding
indebtedness; (v) no action, suit or proceedings, at law or in equity or
before or by any federal or state commission, board or other administrative
agency, shall be pending or, to the knowledge of the Company, or the
Association, threatened against the Company, or the Association or
affecting any of their properties wherein an unfavorable decision, ruling
or finding would materially and adversely affect the business operations,
financially condition or income of the Company, or the Association
considered as one enterprise; and (vi) the Shares have been qualified or
registered for offering and sale or exempted therefore under the securities
or blue sky laws of the jurisdictions as Trident shall have requested and
as agreed to by the Company and the Association.
26
(h) At the time of the execution of this Agreement, the Agent shall
have received from Xxxxx Xxxxxxxx LLP, independent auditors, a letter dated
such date, in form and substance satisfactory to the Agent, to the effect
that (i) they are independent public accountants with respect to the
Company, its subsidiaries and the Association within the meaning of the
Code of Ethics of the American Institute of Certified Public Accountants,
the 1933 Act and the 1933 Act Regulations and the Conversion Regulations;
(ii) it is their opinion that the consolidated financial statements and
supporting schedules included in the Registration Statement and covered by
their opinions therein comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and the 1933 Act
Regulations; (iii) based upon limited procedures set forth in detail in
such letter, nothing has come to their attention which causes them to
believe that (A) the unaudited financial statements and supporting
schedules of the Company and the Association included in the Registration
Statement do not comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and the 1933 Act
Regulations or are not presented in conformity with generally accepted
accounting principles applied on a basis substantially consistent with that
of the audited financial statements included in the Registration Statement
and the Prospectus, (B) the unaudited amounts set forth under "Selected
Financial Information" in the Prospectus were not determined on a basis
substantially consistent with that used in determining the corresponding
amounts in the audited financial statements included in the Registration
Statement, (C) at a specified date not more than five days prior to the
date of this Agreement, except as described in the Prospectus or in such
letter, there has been any increase in the consolidated long-term or
short-term debt of the Company and the Association or any decrease in total
deposits or net worth of the Company and the Association, in each case as
compared with the amounts shown in the March 31, 1998 balance sheet
included in the Registration Statement or (D) during the period from
December 31, 1997 to a specified date not more than five days prior to the
date of this Agreement, there were any decreases, as compared with the
corresponding period in the preceding year, in total interest income, net
interest income, net interest income after provision for loan losses,
income before income tax expense or net income of the Association and its
subsidiaries, except in all instances for increases or decreases which the
Registration Statement and the Prospectus disclose have occurred or may
occur; and (iv) in addition to the examination referred to in their
opinions and the limited procedures referred to in clause (iii) above, they
have carried out certain specified procedures, not constituting an audit,
with respect to certain amounts, percentages and financial information
which are included in the Registration Statement and Prospectus and which
are specified by the Agent, and have found such amounts, percentages and
financial information to be in agreement with the relevant accounting,
financial and other records of the Company, the Association and its
subsidiaries identified in such letter.
(i) At Closing Time, the Agent shall have received from Xxxxx
Xxxxxxxx, LLP a letter, dated as of Closing Time, to the effect that they
reaffirm the statements made in the letters furnished pursuant to
subsection (o) of this Section, except that the specified date referred to
shall be a date not more than five days prior to Closing time.
(j) All conditions precedent to consummation of the Merger have been
satisfied, including but not limited to those referenced in the Merger
Agreement, all statutory waiting periods with respect to all regulatory and
governmental approvals of the Merger have expired and there are no facts or
circumstances which would preclude the immediate consummation of the
Merger.
27
(k) At Closing Time, the Securities shall have been approved for
listing on the Nasdaq Stock Market upon notice of issuance.
(l) At Closing Time, the Agent shall have received a letter from
Xxxxxxxx & Company, dated as of the Closing Time, confirming its appraisal.
(m) At Closing Time, counsel for the Agent shall have been furnished
with such documents and opinions as they may require for the purpose of
enabling them to pass upon the issuance and sale of the Securities as
herein contemplated and related proceedings, or in order to evidence the
accuracy of any of the representations or warranties, or the fulfillment of
any of the conditions, herein contained; and all proceedings taken by the
Company in connection with the issuance and sale of the Securities as
herein contemplated shall be satisfactory in form and substance to the
Agent and counsel for the Agent.
(n) At any time prior to Closing Time, (i) there shall not have
occurred any material adverse change in the financial markets in the United
States or elsewhere or any outbreak of hostilities or escalation thereof or
other calamity or crisis the effect of which, in the judgment of the Agent,
is so material and adverse as to make it impracticable to market the
Securities or to enforce contracts, including subscriptions or orders, for
the sale of the Securities, and (ii) trading generally on either the Nasdaq
Stock Market or the New York Stock Exchange shall not have been suspended,
and minimum or maximum prices for trading shall not have been fixed, or
maximum ranges for prices for securities have been required, by either of
said Exchanges or by order of the Commission or any other governmental
authority, and a banking moratorium shall not have been declared by either
Federal or New York authorities.
(o) At the Closing Date, Trident shall receive a letter from Xxxxx
Xxxxxxxx LLP, dated the Closing Date, addressed to Trident, confirming the
statements made by them in the letter delivered by it pursuant to
subsection (h) of this Section 7, the "specified date" referred to in
clause (iii)(C) of subsection (h) thereof to be a date specified in such
letter, which shall not be more than three business days prior to the
Closing Date.
(p) At the Closing Date, Trident shall receive a letter from Xxxxxxxx
& Company dated the date thereof and addressed to counsel for Trident, (i)
confirming that said firm is independent of the Company and the Association
and is experienced and expert in the area of corporate appraisals and (ii)
stating that its opinion of the aggregate pro forma market value of the
Company and the Association expressed in its Appraisal dated as of
____________, 1998, and most recently updated, remains in effect.
(q) The Company and the Association shall not have sustained since the
date of the latest audited financial statements included in the Prospectus
any material loss or interference with their businesses from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Registration Statement
and Prospectus.
28
(r) At or prior to the Closing Date, Trident shall receive: (i) a copy
of the letter from the OTS approving the Conversion Application and
authorizing the use of the Prospectus; (ii) a copy of the order from the
Commission declaring the Registration Statement effective; (iii) a copy of
articles of combination endorsed by the OTS; (iv) certificates of good
standing from the State of Kansas evidencing the good standing of the
Company; and (v) a certificate of good standing from the State of Kansas
evidencing the good standing of the subsidiaries.
(s) Subsequent to the date hereof, there shall not have occurred any
of the following: (i) a suspension or limitation in trading in securities
generally on the New York Stock; Exchange or in the over-the-counter
market, or quotations halted generally on the Nasdaq National Market, or
minimum or maximum prices for trading have been fixed, or maximum ranges
for prices for securities have been required by either of such exchanges or
the NASD or by order of the Commission or any other governmental authority;
(ii) a general moratorium on the operations of commercial associations or
federal savings associations or a general moratorium on the withdrawal of
deposits from commercial associations or federal savings associations
declared by federal or Illinois authorities; (iii) the engagement by the
United States in hostilities which have resulted in the declaration, on or
after the date hereof, of a national emergency or war; or (iv) a material
decline in the price of equity or debt securities if the effect of such a
decline, in Trident's reasonable judgment, makes it impracticable or
inadvisable to proceed with the Subscription and Community Offering or the
delivery of the shares on the terms and in the manner contemplated in the
Registration Statement and Prospectus.
Section 8. Indemnification.
(a) The Company and the Association jointly and severally agree to
indemnify and hold harmless Trident, its officers, directors, agents,
servants 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 1934 Act,
against any and all loss, liability, claim, damage or expense whatsoever
(including but not limited to reasonable and documented settlement
expenses), joint or several, that Trident or any of them may suffer or to
which Trident and any such persons may become subject under all applicable
federal or state laws or otherwise, and to promptly reimburse Trident and
any such
29
persons upon written demand for any expense (including reasonable and
documented fees and disbursements of counsel) incurred by Trident or any of
them in connection with investigating, preparing or defending any actions,
proceedings or claims (whether commenced or threatened) to the extent such
losses, claims, damages, liabilities or actions: (i) arise out of or are
based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any amendment or
supplement thereto), preliminary or final Prospectus (or any amendment or
supplement thereto), the Conversion Application (or any amendment or
supplement thereto), or any blue sky application or other instrument or
document executed by the Company or the Association or based upon written
information supplied by the Company or the Association filed in any state
or jurisdiction to register or qualify any or all of the Shares or to claim
an exemption therefrom, or provided to any state or jurisdiction to exempt
the Company as a broker-dealer or its officers, directors and employees as
broker-dealers or agents, under the securities laws thereof (collectively,
the "Blue Sky Application"), or any application or other document,
advertisement, oral statement or communication ("Sales Information")
prepared, made or executed by or on behalf of the Company or the
Association with their consent or based upon written or oral information
furnished by or on behalf of the Company or the Association, whether or not
filed in any jurisdiction, in order to qualify or register the Shares or to
claim an exemption therefrom under the securities laws thereof; (ii) arise
out of or based upon the omission or alleged omission to state in any of
the foregoing documents or information, a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; or (iii) arise
from any theory of liability whatsoever relating to or arising from or
based upon the Registration Statement (or any amendment or supplement
thereto), preliminary or final Prospectus (or any amendment or supplement
thereto), the Conversion Application (or any amendment or supplement
thereto), any Blue Sky Application or Sales Information or other
documentation distributed in connection with the Conversion; provided,
however, that no indemnification is required under this paragraph (a) to
the extent such losses, claims, damages, liabilities or actions arise out
of or are based upon Trident's gross negligence, bad faith or willful
misconduct (as determined in a final judgment by a court of competent
jurisdiction) or upon any untrue material statement or alleged untrue
material statements in, or material omission or alleged material omission
from, the Registration Statement (or any amendment or supplement thereto),
preliminary or final Prospectus (or any amendment or supplement thereto),
the Conversion Application, any Blue Sky Application or Sales Information
made in reliance upon and in conformity with information furnished in
writing to the Company or the Association by Trident regarding Trident for
use in the Prospectus contained in the Conversion Application under the
caption "Marketing Arrangements", and provided further that such
indemnification shall be to the extent permitted by Sections 23A and 23B of
the Federal Reserve Act, as amended.
(b) Trident agrees to indemnify and hold harmless the Company and the
Association, their directors and officers and each person, if any, who
controls the Company or the Association within the meaning of Section 15 of
the 1933 Act or Section 20(a) of the 1934 Act against any and all loss,
liability, claim, damage or expense whatsoever (including but not limited
to reasonable and documented settlement expenses), joint or several, which
it, or any of them, may
30
suffer or to which it, or any of them may become subject under all
applicable federal and state laws or otherwise, and to promptly reimburse
the Company, the Association, and any such persons upon written demand for
any expenses (including reasonable and documented fees and disbursements of
counsel) incurred by it, or any of them, in connection with investigating,
preparing or defending any actions, proceedings or claims (whether
commenced or threatened) to the extent such losses, claims, damages,
liabilities or actions arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment or supplement thereto), the
Conversion Application (or any amendment or supplement thereto) or the
preliminary or final Prospectus (or any amendment or supplement thereto),
or are based upon the omission or alleged omission to state in any of the
foregoing documents a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that
Trident's obligations under this Section 8(b) shall exist only if and only
to the extent that such untrue statement or alleged untrue statement was
made in, or such material fact or alleged material fact was omitted from,
the Registration Statement (or any amendment or supplement thereto), the
preliminary or final Prospectus (or any amendment or supplement thereto) or
the Conversion Application (or any amendment or supplement thereto), any
Blue Sky Application or Sales Information in reliance upon and in
conformity with information furnished in writing to the Company or the
Association by Trident regarding Trident for use in the Prospectus
contained in the Conversion Application under the caption "Marketing
Arrangements."
(c) Each indemnified party shall give prompt written notice to each
indemnifying party of any action, proceeding, claim (whether commenced or
threatened), or suit instituted against it in respect of which indemnity
may be sought hereunder, but failure to so notify an indemnifying party
shall not relieve it from any liability which it may have on account of
this Section 8 or otherwise. An indemnifying party may participate at its
own expense in the defense of such action. In addition, if it so elects
within a reasonable time after receipt of such notice, an indemnifying
party, jointly with any other indemnifying parties receiving such notice,
may assumed defense of such action with counsel chosen by it and approved
by the indemnified parties that are defendants in such action, unless such
indemnified parties reasonably object to such assumption on the ground that
there may be legal defenses available to them that are different from or in
addition to those available to such indemnifying party. If an indemnifying
party assumes the defense of such action, the indemnifying parties shall
not be liable for any fees and expenses of counsel for the indemnified
parties incurred thereafter in connection with such action, proceeding or
claim, other than reasonable costs of investigation. In no event shall the
indemnifying parties be liable for the reasonable fees and expenses of more
than one separate firm of attorneys (and any special counsel that said firm
may retain) for each indemnified party in connection with any one action,
proceeding or claim or separate but similar or related actions, 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.
(d) The agreements contained in this Section 8 and in Section 9 hereof
and the representations and warranties of the Company and the Association
set forth in this Agreement shall remain operative and in full force and
effect regardless of: (i) any investigation made by or on behalf of Trident
or its officers, directors or controlling persons, agents or employees or
by or on behalf of the Company or the Association or any officers,
directors or controlling persons, agents or employees of the Company or the
Association; (ii) delivery of and payment hereunder for the Shares; or
(iii) any termination of this Agreement.
31
Section 9. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for in
Section 8 is due in accordance with its terms but is for any reason held by a
court to be unavailable from the Company, the Association or Trident, the
Company, the Association and Trident shall contribute to the aggregate losses,
claims, damages and liabilities (including any investigation, legal and other
expenses incurred in connection with, and any amount paid in settlement of, any
action. suit or proceeding of any claims asserted, but after deducting any
contribution received by the Company, the Association or Trident from persons
other than the other party thereto, who may also be liable for contribution) in
such proportion so that Trident is responsible for that portion represented by
the percentage that the fees paid to Trident pursuant to Section 2 of this
Agreement (not including expenses) bears to the gross proceeds received by the
Company from the sale of the Shares in the Subscription and Community Offering
and the Company and the Association shall be responsible for the balance. If,
however, the allocation provided above is not permitted by applicable law or if
the indemnified party failed to give the notice required under Section 8 above,
then each indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect not only
such relative fault of the Company and the Association on the one hand and
Trident on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions, proceedings
or claims in respect thereto), but also the relative benefits received by the
Company and the Association on the one hand and Trident on the other from the
Subscription and Community Offering (before deducting expenses). The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
and/or the Association on the one hand or Trident on the other and the parties'
relative intent, good faith, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company, the Association and
Trident agree that it would not be just and equitable if contribution pursuant
to this Section 9 were determined by pro-rata allocation or by any other method
of allocation which does not take into account the equitable considerations
referred to above in this Section 9. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions, proceedings or claims in respect thereof) referred to above in this
Section 9 shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action, proceeding or claim. It is expressly agreed that Trident shall
not be required to contribute any amount which in the aggregate exceeds the
amount paid (excluding reimbursable expenses) to Trident under this Agreement.
It is understood that the above stated limitation on Trident's liability for
contribution is essential to Trident and that Trident would not have entered
into this Agreement if such limitation had not been agreed to by the parties to
this Agreement. No person found guilty of any fraudulent misrepresentation
(within the meaning of Section ll(f) of the 1933 Act) shall be entitled to
contribution from any person who was not found guilty of such fraudulent
misrepresentation. The obligations of the Company and the Association under this
Section 9 and under Section 8 shall be in addition to any liability which the
Company and the Association may otherwise have. For purposes of this Section 9,
each of Trident's, the Company's or the Association's officers and directors and
each person, if any, who controls Trident or the Company or the Association
within the meaning of the 1933 Act and the 1934 Act shall have the same rights
to contribution as Trident, the Company or the Association. Any party entitled
to contribution, promptly after receipt of notice of commencement of any action,
suit, claim or proceeding against such party in respect of which a claim for
contribution may be made against another party under this Section 9, will notify
such party from whom contribution may be sought, but the omission to so notify
such party shall not relieve the party from whom contribution may be sought from
any other obligation it may have hereunder or otherwise than under this Section
9.
32
Section 10. Survival of Agreements Representations and Indemnities. The
respective indemnities of the Company, the Association and Trident and the
representations and warranties and other statements of the Company, the
Association and Trident set forth in or made pursuant to this Agreement shall
remain in full force and effect, regardless of any termination or cancellation
of this Agreement or any investigation made by or on behalf of Trident, the
Company, the Association or any controlling person referred to in Section 8
hereof, and shall survive the issuance of the Shares, and any legal
representative, successor or assign of Trident, the Company, the Association,
and any such controlling person shall be entitled to the benefit of the
respective agreements, indemnities, warranties and representations.
Section 11. Termination. Trident may terminate its obligations under this
Agreement by giving the notice indicated below in this Section 11 at any time
after this Agreement becomes effective as follows:
(a) In the event the Company fails to sell all of the Shares by
_________________, 1998, and in accordance with the provisions of the Plan
or as required by the Conversion Regulations, and applicable law, this
Agreement shall terminate upon refund by the Association to each person who
has subscribed for or ordered any of the Shares the full amount which it
may have received from such person, together with interest as provided in
the Prospectus, and no party to this Agreement shall have any obligation to
the other hereunder, except for payment by the Company and/or the
Association as set forth in Sections 2(a) and (d), 6, 8 and 9 hereof.
(b) If any of the conditions specified in Section 7 shall not have
been fulfilled when and as required by this Agreement unless waived in
writing, or by the Closing Date, this Agreement and all of Trident's
obligations hereunder may be cancelled by Trident by notifying the Company
and the Association of such cancellation in writing at any time at or prior
to the Closing Date, and any such cancellation shall be without liability
of any party to any other party except as otherwise provided in Sections 2,
6, 8 and 9 hereof.
(c) If Trident elects to terminate this Agreement with respect to it
as provided in this Section, the Company and the Association shall be
notified promptly by such Agent by telephone or telegram, confirmed by
letter.
The Company and the Association may terminate this Agreement with respect
to Trident in the event Trident is in material breach of the representations and
warranties or covenants contained in Section 5 and such breach has not been
cured after the Company and the Association have provided Trident with notice of
such breach.
This Agreement may also be terminated by mutual written consent of the
parties hereto.
33
Section 12. Notices. All communications hereunder, except as herein
otherwise specifically provided, shall be mailed in writing and if sent to
Trident shall be mailed, delivered or telegraphed and confirmed to Trident
Securities, Inc., 0000 Xxx Xxxxx Xxxx Xxxxx 000, Xxxxxxx, Xxxxx Xxxxxxxx 00000,
Attention: Xxxxx Xxxxxxxxx (with a copy to Xxxxx, Xxxx, Xxxxxxx & Xxxxxxx, L. L.
P., 000 00xx Xxxxxx, X. X., Xxxxxxxxxx, X. X. 00000, Attention: Xxxxxxx X. Xxx,
Esquire) and, if sent to the Company and the Association, shall be mailed,
delivered or telegraphed and confirmed to the Company and the Association at
First Independence Corporation, Myrtle & Sixth Streets, Post Office Drawer 947,
Independence, Kansas 6730, Attention: Xxxxx X. Xxxxxxx (with a copy to Silver,
Xxxxxxxx and Xxxx, 0000 Xxx Xxxx Xxxxxx, X. X., Xxxxxxxxxx, XX 00000-0000,
Attention: Xxxxxx X. Xxxxxxxxx, P.C.).
Section 13. Parties. Unless the context otherwise requires, the term
"Company" shall mean First Independence Corporation and its subsidiaries, either
before or after consummation of the transaction contemplated by this Agreement.
The Company and the Association 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. Trident shall be
entitled to act and rely on any request, notice, consent, waiver or agreement
purportedly given on behalf of the Company or the Association, when the same
shall have been given by the undersigned or any other officer of the Company or
the Association. This Agreement shall inure solely to the benefit of, and shall
be binding upon, Trident, the Company, the Association, 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. It
is understood and agreed that this Agreement, including Exhibit A thereto, is
the exclusive agreement among the parties hereto, and supersedes any prior
agreement among the parties and may not be varied except in writing signed by
all the parties.
Section 14. Closing. The closing for the sale of the Shares shall take
place on the Closing Date at such location as mutually agreed upon by Trident
and the Company and the Association. At the closing, the Company and the
Association shall deliver to Trident in next day funds the commissions, fees and
expenses due and owing to Trident as set forth in Sections 2 and 6 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 15. Partial Invalidity. In the event that any term, provision or
covenant herein or the application thereof to any circumstance or situation
shall be invalid or unenforceable, in whole or in part, the remainder hereof and
the application of said term, provision or covenant to any other circumstances
or situation shall not be affected thereby, and each term, provision or covenant
herein shall be valid and enforceable to the full extent permitted by law.
Section 16. Construction. This Agreement shall be construed in accordance
with the laws of the State of North Carolina.
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Section 17. Counterparts. This Agreement may be executed in separate
counterparts, each of which so executed and delivered shall be an original, but
all of which together shall constitute a binding agreement.
If the foregoing correctly sets forth the arrangement among the Company,
the Association 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,
FIRST INDEPENDENCE CORPORATION NEODESHA SAVINGS AND LOAN ASSOCIATION
By: __________________________ By: __________________________
Xxxxx X. Xxxxxxx Xxxxxxxx Xxxxxx
Chairman and Chief President
Executive Officer
Accepted as of the date first above written
TRIDENT SECURITIES, INC.
By: __________________________
Xxxxx Xxxxxxxxx
If the foregoing correctly sets forth the arrangement among the Company,
the Association 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,
FIRST INDEPENDENCE CORPORATION NEODESHA SAVINGS AND LOAN ASSOCIATION
By: __________________________ By: __________________________
Xxxxx X. Xxxxxxx Xxxxxxxx Xxxxxx
Chairman and Chief President
Executive Officer
Accepted as of the date first above written
TRIDENT SECURITIES, INC.
By: __________________________
Xxxxx Xxxxxxxxx
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Exhibit A
NEODESHA SAVINGS AND LOAN ASSOCIATION
OFFICER'S CERTIFICATE
The undersigned, _____________________, being the duly elected and serving
President of Neodesha Savings and Loan Association, a Federal savings and loan
associations, does hereby represent and warrant to Trident Securities, Inc.,
that the representations and warranties contained in Section 16 of the Agreement
and Plan of Merger and Reorganization, dated February 18, 1998, by and among
Neodesha Savings and Loan Association, FSA, a federally chartered mutual savings
and loan association, First Federal Savings and Loan Association of
Independence, a federally chartered stock savings and loan association ("First
Federal"), and First Independence Corporation, a Delaware corporation that owns
all of the issued and outstanding capital stock of First Federal, are true and
correct with the same force and effect as though expressly made as of the date
hereof.
The undersigned understands that the execution and delivery of this
Officer's Certificate is a condition to the Agency Agreement by and among
Trident Securities, Inc., First Independence Corporation and Neodesha Savings
and Loan Association, dated as of _________, 1998 ("Agency Agreement"), and that
Trident Securities, Inc., is carrying out its obligation under the terms of the
Agency Agreement in reliance upon, among other things, the representations and
warranties set forth in the Agreement and Plan of Merger and Reorganization.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this ____ day
of__________, 1998.
NEODESHA SAVINGS AND LOAN ASSOCIATION
By: __________________________
President
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OFFICER'S CERTIFICATE
The undersigned,_________________________________, being the duly elected
and serving President of Neodesha Savings and Loan Association ("Neodesha"),
does hereby certify that:
(i) The consolidated financial statements and the related notes
thereto included in the Registration Statement and the Prospectus present
fairly the consolidated financial position of Neodesha at the respective
dates indicated and the results of operations, retained earnings and cash
flows for the periods specified and comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act
Regulations and the Conversion Regulations; except as otherwise stated in
the Registration Statement, said financial statements have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis; and the supporting schedules and tables included in the
Registration Statement present fairly the information required to be stated
therein.
(ii) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated
therein there has been no material adverse change in the financial
condition, results of operations or business affairs of Neodesha, whether
or not arising in the ordinary course of business.
(iii) Neodesha has been duly incorporated and is validly existing as a
federal savings and loan association with corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectus; and Neodesha is duly qualified as a foreign
corporation to transact business in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so qualify
would not have a material adverse effect on the financial condition,
results of operations or business affairs of Neodesha.
(iv) All such licenses, permits and other governmental authorizations
of Neodesha are in full force and effect and Neodesha is in all material
respects in compliance therewith; Neodesha has not received notice of any
proceeding or action relating to the revocation or modification of any such
license, permit or other governmental authorization which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding,
might have a material adverse effect on the financial condition, results of
operations or business affairs of Neodesha; and Neodesha is in good
standing under the laws of the United States.
(v) The deposit accounts of Neodesha are insured by the FDIC.
(vi) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus and prior to the
Closing Time, except as otherwise may be indicated or contemplated in the
Prospectus, Neodesha will not have (A) issued any securities or incurred
any material liability or obligation, direct or contingent, or borrowed
money, except borrowings in the ordinary course of business from the same
or similar sources indicated in the Prospectus, or (B) entered into any
transaction or series of transactions which is material in light of the
business of Neodesha, excluding transactions in the ordinary course of
business and consistent with past practice or otherwise as indicated in the
Prospectus.
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(vii) Neodesha is not in violation of its charter or bylaws; and
Neodesha is not in default (nor has any event occurred which, with notice
or lapse of time, or both, would constitute a default) in the performance
or observance of any obligation, agreement, covenant or condition contained
in any contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which Neodesha is a party or by which it or any of them may
be bound, or to which any of the property or assets of Neodesha is subject,
except for such defaults that would not, individually or in the aggregate,
have a material adverse effect on the financial condition, results of
operations or business of Neodesha.
(ix) No labor dispute with the employees of Neodesha exists or, to the
Neodesha knowledge of Neodesha, is imminent.
(x) Neodesha has good and marketable title to all properties and
assets for which ownership is material to the business of Neodesha and to
those properties and assets described in the Prospectus as owned by it,
free and clear of all liens, charges, encumbrances or restrictions, except
such as are described in the Prospectus or are not material in relation to
the business of Neodesha; and all of the leases and subleases material to
the business of Neodesha under which Neodesha holds properties, including
those described in the Prospectus, are valid and binding agreements of
Neodesha enforceable in accordance with their terms.
(xi) Neodesha is not in violation of any directive from the OTS or the
FDIC to make any material changes in the method of conducting its business;
Neodesha has conducted and is conducting its business so as to comply in
all material respects with all applicable statutes, regulations and
administrative and court decrees (including, without limitation, all
regulations, decisions, directives and orders of the OTS or the FDIC).
(xii) There is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending or, to the
knowledge of Neodesha, threatened against or affecting Neodesha which is
required to be disclosed in the Registration Statement (other than as
disclosed therein), or which might result in any material adverse change in
the financial condition, results of operations or business affairs of
Neodesha, or which might materially and adversely affect the properties or
assets thereof or which might materially and adversely affect the
consummation of the Merger; all pending legal or governmental proceedings
to which Neodesha is a party or of which any of their respective property
or assets is the subject which are not described in the Registration
Statement, including ordinary routine litigation to the business, are
considered in the aggregate not material.
(xiii) Neodesha is not required to be registered under the Investment
Company Act of 1940, as amended.
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(xiv) All of the loans represented as assets on the most recent
financial statements or selected financial information of Neodesha included
in the Prospectus meet or are exempt from all requirements of federal,
state and local law pertaining to lending, including, without limitation,
truth in lending (including the requirements of Regulations Z and 12 C.F.R.
Part 226 and Section 563.99), real estate settlement procedures, consumer
credit protection, equal credit opportunity and all disclosure laws
applicable to such loans, except for violations which, if asserted, would
not result in a material adverse effect on the financial condition, results
of operations or business of SFC, Suburban and its subsidiaries considered
as one enterprise.
(xv) To the knowledge of Neodesha, neither Neodesha nor any employee
of Neodesha has made any payment of funds prohibited by law or set aside
any funds for any payment prohibited by law.
(xvi) Neodesha is in compliance in all material respects with the
applicable financial recordkeeping and reporting requirements of the
Currency and Foreign Transaction Reporting Act of 1970, as amended, and the
rules and regulations thereunder.
(xvii) Neither Neodesha nor any properties owned or operated by
Neodesha is in violation of or liable under any Environmental Law (as
defined below), except for such violations or liabilities that,
individually or in the aggregate, would not have a material adverse effect
on the financial condition, results of operations or business affairs of
Neodesha considered as one enterprise. There are no actions, suites or
proceedings, or demands, claims, notices or investigations (including,
without limitation, notices, demand letters or requests for information
from any environmental agency) instituted or pending or, to the knowledge
of Neodesha, threatened relating to the liability of any property owned or
operated by Neodesha under any Environmental Law. For purposes of this
subsection, the term "Environmental Law" means any federal, state, local or
foreign law, statute, ordinance, rule, regulation, code, license, permit,
authorization, approval, consent, order, judgment, decree, injunction or
agreement with any regulatory authority relating to (i) the protection,
preservation or restoration of the environment (including, without
limitation, air, water, vapor, surface water, groundwater, drinking water
supply, surface soil, subsurface soil, plant and animal life or any other
natural resource) and/or (ii) the use, storage, recycling, treatment,
generation, transportation, processing, handling, labeling, production,
release or disposal of any substance presently listed, defined, designated
or classified as hazardous, toxic, radioactive or dangerous, or otherwise
regulated, whether by type or by quantity, including any material
containing any such substance as a component.
(xv) Neodesha has filed all federal income and state and local
franchise tax returns required to be filed and have made timely payments of
all taxes shown as due and payable in respect of such returns, and no
deficiency has been asserted with respect thereto by any taxing authority.
Capitalized terms not defined herein shall have the meanings set forth
in the Agency Agreement, by and among Trident Securities, Inc., First
Independence Corporation, and First Federal Savings and Loan Association,
dated as of _________, 1998.
IN WITNESS WHEREOF, the undersigned has hereunto set their hands this _____
day of _______________, 1998.
-------------------------------------
President and Chief Executive Officer
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