Exhibit 1.2
GLOBE BANCORP, INC.
195,500 TO 264,500 SHARES
(AS MAY BE INCREASED TO 304,175 SHARES)
COMMON STOCK
($.01 PAR VALUE PER SHARE)
PURCHASE PRICE: $10.00 PER SHARE
SALES AGENCY AGREEMENT
___________________, 2001
Trident Securities, a Division of McDonald Investments, Inc.
0000 Xxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Dear Sirs:
Globe Bancorp, Inc., a Louisiana corporation ("Company"), and Globe
Homestead Federal Savings Association (referred to herein as "Bank," in mutual
or stock form as the context may require), hereby confirm, as of
___________________, 2001, their respective agreements with Trident Securities,
a Division of McDonald Investments Inc. together with its successors and assigns
as contemplated in Section 13 hereof (collectively, "McDonald"), a broker-dealer
registered with the Securities and Exchange Commission ("Commission") and a
member of the National Association of Securities Dealers, Inc. ("NASD"), as
follows:
1. INTRODUCTION. The Bank intends to convert from a federally chartered
mutual savings association to a federally chartered capital stock savings and
loan association as a wholly owned subsidiary of the Company (together with the
Offerings, as defined below, the issuance of shares of common stock of the Bank
to the Company and the incorporation of the Company, the "Conversion") pursuant
to a plan of conversion adopted by the Bank's Board of Directors on
_______________, 2001 [and amended on ______________] ("Plan"). In accordance
with the Plan, the Company is offering shares of its common stock, $.01 par
value per share ("Common Stock"), pursuant to nontransferable subscription
rights in a subscription offering ("Subscription Offering") to certain
depositors and borrowers of the Bank and to the Bank's tax-qualified employee
benefit plans (i.e., the Bank's Employee Stock Ownership Plan ("ESOP")). And
shares of the Common Stock not sold in the Subscription Offering are being
offered to the general public in a Community Offering ("Community Offering"),
with preference given to natural persons who are residents of Jefferson and
Orleans Parishes, Louisiana ("Local Community") (the Subscription and Community
Offerings are sometimes referred to collectively as the "Subscription and
Community Offering" or the "Offerings"), subject to the right of the Company and
the Bank, in their absolute discretion, to reject orders in the Community
Offering in whole or in part. In the Subscription
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Page 2
Offering (and the Community Offering, if applicable), the Company is offering
between 195,500 and 264,500 shares of Common Stock ("Shares"), with the
possibility of offering up to 304,175 shares without a resolicitation of
subscribers, as contemplated by Part 563b of Title 12 of the Code of Federal
Regulations. Except for the ESOP, no person may purchase shares with an
aggregate purchase price of more than $_________ and no person or entity,
together with associates of and persons acting in concert with such person or
other entity, may purchase more than $_________ of Common Stock.
McDonald has advised the Company and the Bank that it will utilize its
best efforts to assist the Company with the sale of the Shares in the Offerings.
Prior to the execution of this Agreement, the Company has delivered to McDonald
the prospectus dated ___________________, 2001 (as hereinafter defined) and all
supplements thereto, if any, to be used in the Offerings have also been
delivered to McDonald (or if after the date of this Agreement, will be promptly
delivered to McDonald). Such prospectus contains information with respect to the
Company, the Bank and the Shares.
2. REPRESENTATIONS AND WARRANTIES.
(a) The Company and the Bank jointly and severally represent
and warrant to McDonald that:
(i) The Company has filed with the Commission a
registration statement, including exhibits and an amendment or
amendments thereto, on Form S-1 (No. ___________ ), including
a prospectus relating to the Offerings, for the registration
of the Shares under the Securities Act of 1933, as amended
("Act"). Such registration statement has become effective
under the Act and no stop order has been issued with respect
thereto and no proceedings therefor have been initiated or, to
the Company's best knowledge, threatened by the Commission.
Except as the context may otherwise require, such registration
statement, as amended or supplemented, on file with the
Commission at the time the registration statement became
effective, including the prospectus, financial statements,
schedules, exhibits and all other documents filed as part
thereof, as amended and supplemented, is herein called the
"Registration Statement," and the prospectus, as amended or
supplemented, on file with the Commission at the time the
Registration Statement became effective is herein called the
"Prospectus," except that if the prospectus filed by the
Company with the Commission pursuant to Rule 424(b) of the
general rules and regulations of the Commission under the Act
("SEC Regulations") differs from the form of prospectus on
file at the time the Registration Statement became effective,
the term "Prospectus" shall refer to the Rule 424(b)
prospectus from and after the time it is filed with the
Commission and shall include any amendments or supplements
thereto
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___________________, 2001
Page 3
from and after their dates of effectiveness or use,
respectively. If any Shares remain unsubscribed following
completion of the Subscription Offering and the Community
Offering, if any, the Company (i) will, if required by SEC
Regulations, promptly file with the Commission a
post-effective amendment to such Registration Statement
relating to the results of the Subscription Offering and the
Community Offering, if any, any additional information with
respect to the proposed plan of distribution and any revised
pricing information or (ii) if no such post-effective
amendment is required, will file with the Commission a
prospectus or prospectus supplement containing information
relating to the results of the Subscription and the Community
Offerings and pricing information pursuant to Rule 424(c) of
the SEC Regulations, in either case in a form reasonably
acceptable to the Company and McDonald.
(ii) The Bank has filed an Application for Approval
of Conversion on Form AC, including exhibits (as amended or
supplemented, the "Form AC" and together with the Form
H-(e)1-S referred to below, the "Conversion Application") with
the Office of Thrift Supervision ("Office") under the Home
Owners' Loan Act, as amended ("HOLA") and the enforceable
rules and regulations, including published policies and
actions, of the Office thereunder ("OTS Regulations"), which
has been approved by the Office; the Prospectus and the proxy
statement for the solicitation of proxies from members of the
Bank for the special meeting to approve the Plan ("Proxy
Statement") included as part of the Form AC have been approved
for use by the Office. No order has been issued by the Office
preventing or suspending the use of the Prospectus or the
Proxy Statement; and no action by or before the Office
revoking such approvals is pending or, to the Bank's best
knowledge, threatened. The Company has filed with the Office
the Company's application on Form H-(e)1-S under the savings
and loan holding company provisions of the HOLA and the OTS
Regulations, which has been conditionally approved.
(iii) At the date of the Prospectus and at all times
subsequent thereto through and including the Closing Date (as
hereinafter defined) (i) the Registration Statement and the
Prospectus (as amended or supplemented, if amended or
supplemented) complied and will comply as to form in all
material respects with the Act and the SEC Regulations, (ii)
the Registration Statement (as amended or supplemented, if
amended or supplemented) did not contain an untrue statement
of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading and (iii) the Prospectus (as amended or
supplemented, if amended or supplemented) did not contain any
untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances
under which they were made, not misleading. Representations or
warranties in this subsection shall not apply to statements or
omissions made in reliance upon and in
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___________________, 2001
Page 4
conformity with written information about McDonald furnished
to the Company or the Bank by or on behalf of McDonald
expressly for use in the Registration Statement or
Prospectus.
(iv) The Company is duly incorporated as a Louisiana
corporation and the Bank is duly organized as a mutual savings
bank under the laws of the United States, and each of them is
validly existing and in good standing under the laws of the
jurisdiction of its organization with full power and authority
to own its property and conduct its business as described in
the Prospectus; the Bank is a member of the Federal Home Loan
Bank of Dallas; and the deposit accounts of the Bank are
insured by the Savings Association Insurance Fund ("SAIF")
administered by the Federal Deposit Insurance Corporation
("FDIC") up to the applicable limits. Neither the Company nor
the Bank is required to be qualified to do business as a
foreign corporation in any jurisdiction where
non-qualification would have a material adverse effect on the
Company and the Bank, taken as a whole. The Bank does not own
equity securities of or an equity interest in any business
enterprise, except as described in the Prospectus. Upon
amendment of the Bank's charter and bylaws as provided in the
OTS Regulations and completion of the sale by the Company of
the Shares as contemplated by the Prospectus and the Plan, (i)
the Bank will convert to a federally chartered capital stock
savings and loan association with full power and authority to
own its property and conduct its business as described in the
Prospectus, (ii) all of the authorized and outstanding capital
stock of the Bank will be owned of record and beneficially by
the Company, and (iii) the Company will have no direct
subsidiaries other than the Bank.
(v) The Bank has no subsidiaries and has had no
subsidiaries for five years.
(vi) The Bank has good and marketable title to all
assets material to their businesses and to those assets
described in the Prospectus as owned by them, free and clear
of all liens, charges, encumbrances or restrictions, except as
described in the Prospectus and except as would not in the
aggregate have a material adverse effect on the Bank; and all
of the leases and subleases material to the operations or
financial condition of the Bank, under which they hold
properties, including those described in the Prospectus, are
in full force and effect as described therein.
(vii) The Bank has obtained all licenses, permits and
other governmental authorizations currently required for the
conduct of its business, all such licenses, permits and other
governmental authorizations are in full force and effect and
the Bank is in all material respects complying therewith,
except where the failure to hold
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Page 5
or comply with such licenses, permits or governmental
authorizations would not have a material adverse effect on the
Company and the Bank.
(viii) The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby
have been duly and validly authorized by all necessary
corporate action on the part of each of the Company and the
Bank, and this Agreement has been validly executed and
delivered by, and is a valid and binding obligation of, each
of the Company and the Bank, enforceable in accordance with
its terms (except as the enforceability thereof may be limited
by bankruptcy, insolvency, moratorium, reorganization or
similar laws relating to or affecting the enforcement of
creditors' rights generally or the rights of creditors of
depository institutions whose accounts are insured by the FDIC
and of savings and loan holding companies the accounts of
whose subsidiary are insured by the FDIC or by general equity
principles, regardless of whether such enforceability is
considered in a proceeding in equity or at law, and except to
the extent that the provisions of Sections 8 and 9 hereof may
be unenforceable as against public policy or pursuant to
Section 23A of the Federal Reserve Act, 12 U.S.C. Section 371c
("Section 23A")).
(ix) There is no litigation or governmental
proceeding pending or, to the best knowledge of the Company or
the Bank, threatened against or involving the Company, the
Bank, or any of their respective assets which individually or
in the aggregate would reasonably be expected to have a
material adverse effect on the condition (financial or
otherwise), results of operations, assets or properties of the
Company and the Bank, taken as a whole.
(x) Each of the Company and the Bank has all such
corporate power, authority, authorizations, approvals and
orders as may be required to enter into this Agreement and to
carry out the provisions and conditions hereof, subject to the
limitations set forth herein and subject to the satisfaction
of certain conditions imposed by the Office in connection with
its approvals of the Form AC and the Application H-(e)1-S, and
except as may be required under the "blue sky" laws of various
jurisdictions, and in the case of the Company, as of the
Closing Date, will have such approvals and orders to issue and
sell the Shares to be sold by the Company as provided herein,
and in the case of the Bank, as of the Closing Date, will have
such approvals and orders to issue and sell the shares of its
common stock to be sold to the Company as provided in the
Plan, subject to the issuance of an amended charter in the
form required for federally chartered capital stock savings
and loan association ("Stock Charter"), the form of which
Stock Charter has been filed with the Form AC and approved by
the Office.
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___________________, 2001
Page 6
(xi) Neither the Company nor the Bank is in violation
of any rule or regulation of the Office, or the FDIC, or any
insurance regulator that could reasonably be expected to
result in any enforcement action against the Company, the
Bank, or their officers or directors that would have a
material adverse effect on the condition (financial or
otherwise), results of operations, businesses, assets or
properties of the Company and the Bank, taken as a whole.
(xii) The financial statements and the related notes
or schedules which are included in the Registration Statement
and are part of the Prospectus fairly present the financial
condition, income and comprehensive income, equity and cash
flows of the Bank at the respective dates thereof and for the
respective periods covered thereby and comply as to form in
all material respects with the applicable accounting
requirements of the SEC Regulations and the applicable
accounting regulations of the Office. Such financial
statements have been prepared in accordance with generally
accepted accounting principles consistently applied throughout
the periods involved, except as set forth therein, and such
financial statements are in all material respects consistent
with financial statements and other reports filed by the Bank
with supervisory and regulatory authorities except as such
generally accepted accounting principles may otherwise
require. The tables in the Prospectus accurately present the
information purported to be shown thereby at the respective
dates thereof and for the respective periods therein.
(xiii) There has been no material change in the
financial condition, results of operations or business,
including assets and properties, of the Company and the Bank,
taken as a whole, since the latest date as of which such
condition is set forth in the Prospectus, except as set forth
therein; and the capitalization, assets, properties and
business of each of the Company and the Bank conform in all
materials respects to the descriptions thereof contained in
the Prospectus. Neither the Company nor the Bank has any
material liabilities of any kind, contingent or otherwise,
except as set forth in the Prospectus.
(xiv) There has been no breach or default (or the
occurrence of any event which, with notice or lapse of time or
both, would constitute a default) under, or creation or
imposition of any lien, charge or other encumbrance upon any
of the properties or assets of the Company or the Bank
pursuant to any of the terms, provisions or conditions of, any
agreement, contract, indenture, bond, debenture, note,
instrument or obligation to which the Company or the Bank is a
party or by which any of them or any of their respective
assets or properties may be bound or is subject, or violation
of any governmental license or permit or any enforceable
published law, administrative regulation or order or court
order, writ, injunction or decree, which breach, default,
encumbrance or violation would have a material
Trident Securities, a Division of McDonald Investments, Inc.
___________________, 2001
Page 7
adverse effect on the condition (financial or otherwise),
results of operations, businesses, assets or properties of the
Company and the Bank, taken as a whole; all agreements which
are material to the financial condition, results of operations
or business, assets or properties of the Company or the Bank,
taken as a whole are in full force and effect, and no party to
any such agreement has instituted or, to the best knowledge of
the Company or the Bank, threatened any action or proceeding
wherein the Company or the Bank is alleged to be in default
thereunder.
(xv) Neither the Company nor the Bank is in violation
of their respective certificates of incorporation, charters or
bylaws. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby by the
Company and the Bank do not conflict with or result in a
breach of the respective certificates of incorporation,
charters or bylaws of the Company or the Bank (in either
mutual or stock form) or constitute a material breach of or
default (or an event which, with notice or lapse of time or
both, would constitute a default) under, give rise to any
right of termination, cancellation or acceleration contained
in, or result in the creation or imposition of any lien,
charge or other encumbrance upon any of the properties or
assets of the Company or the Bank pursuant to any of the
terms, provisions or conditions of, any material agreement,
contract, indenture, bond, debenture, note, instrument or
obligation to which the Company or the Bank is a party or
violate any governmental license or permit or any enforceable
published law, administrative regulation or order or court
order, writ, injunction or decree (subject to the satisfaction
of certain conditions imposed by the Office in connection with
its approval of the Conversion Application or the Application
H-(e)1-S), which breach, default, encumbrance or violation
would have a material adverse effect on the Company and the
Bank, taken as a whole.
(xvi) Subsequent to the respective dates as of which
information is given in the Registration Statement and
Prospectus and prior to the Closing Date, except as otherwise
may be indicated or contemplated therein, neither the Company
nor the Bank have issued any securities which will remain
issued and outstanding at the Closing Date or incurred any
liabilities or obligations, direct or contingent, or borrowed
money, except liabilities, obligations or borrowings in the
ordinary course of business, or entered into any other
transaction not in the ordinary course of business and
consistent with prior practices, which are material in light
of the business of the Company and the Bank, taken as a whole.
(xvii) Upon consummation of the Conversion, the
authorized, issued and outstanding equity capital of the
Company shall be within the range set forth in the Prospectus
under the caption "Capitalization," and no capital stock of
the Company shall be outstanding immediately prior to the
Closing Date; the issuance and the sale
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___________________, 2001
Page 8
of the Shares have been duly authorized by all necessary
corporate action of the Company and the Bank and approved by
the Office and, when issued and paid for in accordance with
the terms of the Plan, shall be validly issued, fully paid and
nonassessable and shall conform to the description thereof
contained in the Prospectus; the issuance of the Shares is not
subject to preemptive rights, except as set forth in the
Prospectus; and good title to the Shares will be transferred
by the Company to the purchasers thereof upon issuance thereof
against payment therefor, free and clear of all claims,
encumbrances, security interests and liens of the Company
whatsoever. The certificates representing the Shares will
conform in all material respects with the requirements of
applicable laws and regulations. The issuance and sale of the
capital stock of the Bank to the Company has been duly
authorized by all necessary corporate action of the Bank and
the Company and has been approved by the Office (subject to
the satisfaction of various conditions imposed by the Office
in connection with its approval of the Conversion Application
and the Application H-(e)1-S), and such capital stock, when
issued in accordance with the terms of the Plan, will be fully
paid and nonassessable and will conform to the description
thereof contained in the Prospectus.
(xviii) No approval of any regulatory or supervisory
or other public authority is required of the Company or the
Bank in connection with the execution and delivery of this
Agreement or the issuance of the Shares, except for the
declaration of effectiveness of any required post-effective
amendment by the Commission and approval thereof by the Office
and approval of the Company's Application H-(e)1-S, the
issuance of the Stock Charter by the Office and as may be
required under the "blue sky" laws of various jurisdictions.
(xix) All contracts and other documents required to
be filed as exhibits to the Registration Statement or the
Conversion Application have been filed with the Commission or
the Office, as the case may be.
(xx) The Bank's financial statements as of December
31 and 1999, 2000 and for the years then ended included in
this Prospectus, have been audited by Xxxx Xxxxxx Xxxxxxx
L.L.P. Xxxx Xxxxxx Xxxxxxx L.L.P. are independent public
accountants with respect to the Company and the Bank within
the meaning of the Code of Professional Ethics of the American
Institute of Certified Public Accountants and such accountants
are, with respect to the Company and the Bank, independent
certified public accountants as required by the Act and the
SEC Regulations.
(xxi) For the past five years, or in the case of the
Company, such lesser period corresponding to the Company's
existence, the Company and the Bank have
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Page 9
timely filed all required federal, state and local tax
returns, and no deficiency has been asserted with respect to
such returns by any taxing authorities, and the Company and
the Bank have paid all taxes that have become due and, to the
best of their knowledge, have made adequate reserves for known
future tax liabilities, except where any failure to make such
filings, payments and reserves, or the assertion of such a
deficiency, would not have a material adverse effect on the
Company and the Bank, taken as a whole.
(xxii) All of the loans represented as assets of the
Bank on the most recent statement of financial condition of
the Bank included in the Prospectus meet or are exempt from
all requirements of federal, state or local law pertaining to
lending, including without limitation truth in lending
(including the requirements of Regulation Z and 12 C.F.R. Part
226 and Section 563.99), real estate settlement procedures,
consumer credit protection, equal credit opportunity and all
disclosure laws applicable to such loans, except for
violations which, if asserted, would not have a material
adverse effect on the Company and the Bank, taken as a whole.
(xxiii) To the best knowledge of the Company and the
Bank, the records of account holders, depositors and other
members of the Bank delivered to McDonald by the Bank or its
agent for use during the Conversion are reliable and accurate.
(xxiv) To the best knowledge of the Company and the
Bank, neither the Company nor the Bank nor the employees of
the Company or the Bank, have made any payment of funds of the
Company or the Bank prohibited by law, and no funds of the
Company or the Bank have been set aside to be used for any
payment prohibited by law.
(xxv) To the best knowledge of the Company and the
Bank, the Company and the Bank are in compliance with all
laws, rules and regulations relating to the discharge,
storage, handling and disposal of hazardous or toxic
substances, pollutants or contaminants and neither the Company
nor the Bank believes that the Company and Bank are subject to
liability under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, or any
similar law, except for violations which, if asserted, would
not have a material adverse effect on the Company and the
Bank, taken as a whole. There are no actions, suits,
regulatory investigations or other proceedings pending or,
to the best knowledge of the Company or the Bank, threatened
against the Company or the Bank relating to the discharge,
storage, handling and disposal of hazardous or toxic
substances, pollutants or contaminants. To the best knowledge
of the Company and the Bank, no disposal, release or
discharge of hazardous or toxic substances, pollutants or
contaminants, including petroleum and gas products, as any
of such terms may be defined under
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Page 10
federal, state or local law, has been caused by the Company or
the Bank or, to the best knowledge of the Company or the Bank,
has occurred on, in or at any of the facilities or properties
of the Company or the Bank, except such disposal, release or
discharge which would not have a material adverse effect on
the Company and the Bank, taken as a whole.
(xxvi) For purposes of McDonald's obligation to file
certain documents and to make certain representations to the
National Association of Securities Dealers ("NASD") in
connection with the conversion, the Bank warrants that: (a)
the Bank has not privately placed any securities within the
last 18 months; (b) there have been no materials dealings
within the last 12 months between the Bank and any NASD member
or any person related to or associated with any such member;
(c) none of the officers or directors of the Bank have any
affiliation with the NASD, (d) except as contemplated by the
engagement letter with McDonald, the Bank has no financial or
management consulting contracts outstanding with any other
person; and (e) there has been no intermediary between
McDonald and the Bank in connection with the public offering
of the Bank's shares, and no person is being compensated in
any manner for providing such service.
(b) McDonald represents and warrants to the Company and the
Bank that:
(i) McDonald is registered as a broker-dealer with
the Commission and a member of the NASD, and is in good
standing with the Commission and the NASD.
(ii) McDonald is validly existing as a corporation in
good standing under the laws of its jurisdiction of
incorporation, with full corporate power and authority to
provide the services to be furnished to the Company and the
Bank hereunder.
(iii) The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby
have been duly and validly authorized by all necessary action
on the part of McDonald, and this Agreement is a legal, valid
and binding obligation of McDonald, enforceable in accordance
with its terms (except as the enforceability thereof may be
limited by bankruptcy, insolvency, moratorium, reorganization
or similar laws relating to or affecting the enforcement of
creditors' rights generally or the rights of creditors of
registered broker-dealers accounts of whom may be protected by
the Securities Investor Protection Corporation or by general
equity principles, regardless of whether such enforceability
is considered in a proceeding in equity or at law, and except
to the extent that the provisions of Sections 8 and 9 hereof
may be unenforceable as against public policy or pursuant to
Section 23A).
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(iv) Each of McDonald, and to McDonald's best
knowledge, its employees, agents and representatives who shall
perform any of the services required hereunder to be performed
by McDonald shall be duly authorized and shall have all
licenses, approvals and permits necessary to perform such
services, and McDonald is a registered selling agent in the
jurisdictions listed in Exhibit A hereto and will remain
registered in such jurisdictions in which the Company is
relying on such registration for the sale of the Shares, until
the Conversion is consummated or terminated.
(v) The execution and delivery of this Agreement by
McDonald, the fulfillment of the terms set forth herein and
the consummation of the transactions contemplated hereby shall
not violate or conflict with the corporate charter or bylaws
of McDonald or violate, conflict with or constitute a breach
of, or default (or an event which, with notice or lapse of
time, or both, would constitute a default) under, any material
agreement, indenture or other instrument by which McDonald is
bound or under any governmental license or permit or any law,
administrative regulation, authorization, approval or order or
court decree, injunction or order, except for such violations,
conflicts, breaches or defaults that would not have a material
adverse effect on McDonald.
(vi) All funds received by McDonald to purchase the
Common Stock will be handled in accordance with Rule 15c2-4
under the Securities Exchange Act of 1934, as amended
("Exchange Act").
(vii) There is not now pending or, to McDonald's best
knowledge, threatened against McDonald any action or
proceeding before the Commission, the NASD, any state
securities commission or any state or federal court concerning
McDonald's activities as a broker-dealer.
3. EMPLOYMENT OF MCDONALD; SALE AND DELIVERY OF THE SHARES. On the
basis of the representations and warranties herein contained, but subject to the
terms and conditions herein set forth, the Company and the Bank hereby employ
McDonald as their agent to utilize its best efforts in assisting the Company
with the sale of the Shares by the Company in the Offerings. McDonald will
assist the Bank in the Conversion by acting as marketing advisor with respect to
the Subscription Offering and will represent the Bank as placement agent on a
best efforts basis in the sale of the Common Stock in the Community Offering if
one is held; conduct training sessions with directors, officers and employees of
the Bank regarding the conversion process; and assist in the establishment and
supervision of the Bank's stock information center and, with management's input,
will train the Bank's staff to record properly and tabulate orders for the
purchase of Common Stock and to respond appropriately to customer inquiries. The
employment of McDonald hereunder shall
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Page 12
terminate (a) forty-five (45) days after the Offerings close, unless the
Company and the Bank, with the approval of the Office, are permitted to
extend such period of time, or (b) upon consummation of the Conversion,
whichever date shall first occur.
If the Company is unable to sell a minimum of 195,500 Shares of Common
Stock (or such lesser amount as the Office may permit) within the period herein
provided, this Agreement shall terminate, and the Company and the Bank shall
refund promptly to any person who has subscribed for any of the Shares, the full
amount which it may have received from them, together with interest as provided
in the Prospectus, and no party to this Agreement shall have any obligation to
the other party hereunder, except as set forth in Sections 6, 8(a), 8(d) and 9
hereof. Appropriate arrangements for placing the funds received from
subscriptions for Shares in a special interest-bearing account with the Bank
until all Shares are sold and paid for were made prior to the commencement of
the Subscription and Community Offering, with provision for prompt refund to the
purchasers as set forth above, or for delivery to the Company if all Shares are
sold.
If all conditions precedent to the consummation of the Conversion are
satisfied, including the sale of all Shares required by the Plan to be sold, the
Company agrees to issue or have issued such Shares and to release for delivery
certificates to subscribers thereof for such Shares on the Closing Date against
payment to the Company by any means authorized pursuant to the Prospectus, at
the principal office of the Company or at such other place as shall be agreed
upon between the parties hereto. The date upon which McDonald is paid the
compensation due hereunder is herein called the "Closing Date."
McDonald agrees either (a) upon receipt of an executed order form of a
subscriber to forward the aggregate offering price of the Common Stock ordered
on or before twelve noon on the next business day following receipt or execution
of an order form by McDonald to the Bank for deposit in a segregated account or
(b) to solicit indications of interest in which event (i) McDonald will
subsequently contact any potential subscriber indicating interest to confirm the
interest and give instructions to execute and return an order form or to receive
authorization to execute the order form on the subscriber's behalf, (ii)
McDonald will mail acknowledgments of receipt of orders to each subscriber
confirming interest on the business day following such confirmation, (iii)
McDonald will debit accounts of such subscribers on the third business day
("debit date") following receipt of the confirmation referred to in (i), and
(iv) McDonald will forward completed order forms together with such funds to the
Bank on or before twelve noon on the next business day following the debit date
for deposit in a segregated account. McDonald acknowledges that if the procedure
in (b) is adopted, subscribers' funds are not required to be in their accounts
until the debit date.
In addition to the expenses specified in Section 6 hereof:
(a) McDonald shall receive seventy-five thousand dollars ($75,000)
for its services hereunder and reimbursement of expenses.
Trident has received fifteen thousand
Trident Securities, a Division of McDonald Investments, Inc.
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dollars ($15,000) as an advance, against its expenses. The
balance of the fee is to be payable in same-day funds to
McDonald on the Closing Date.
(2) In the event of resolicitation or other event which causes the
offering to be extended beyond the date contemplated by the
Prospectus, then McDonald shall also be reimbursed for
additional out-of-pocket expenses incurred as a result of such
resolicitation or extension. Such additional reimbursement
shall be a pro rata amount of the expenses incurred during the
original period.
The Company shall pay any stock issue and transfer taxes which may be
payable with respect to the sale of the Shares. The Company and the Bank shall
also pay all expenses of the Conversion incurred by them or on their prior
approval including but not limited to their attorneys' fees, NASD filing fees,
filing and registration fees, and attorneys' fees relating to any required state
securities laws research and filings, telephone charges, air freight, rental
equipment, supplies, transfer agent charges, fees relating to auditing and
accounting and costs of printing all documents necessary in connection with the
Conversion.
4. OFFERING. Subject to the provisions of Section 7 hereof, McDonald is
assisting the Company on a best efforts basis in offering a minimum of 195,500
and a maximum of 264,500 Shares, with the possibility of offering up to 304,175
Shares (except as the Office may permit to be decreased or increased) in the
Subscription and Community Offerings. The Shares are to be offered to the public
at the price set forth on the cover page of the Prospectus and the first page of
this Agreement.
5. FURTHER AGREEMENTS. The Company and the Bank jointly and severally
covenant and agree that:
(a) The Company shall deliver to McDonald, from time to time,
such number of copies of the Prospectus as McDonald reasonably may
request. The Company authorizes McDonald to use the Prospectus in any
lawful manner in connection with the offer and sale of the Shares.
(b) The Company will notify McDonald or its counsel
immediately upon discovery, and confirm the notice in writing, (i) when
any post-effective amendment to the Registration Statement becomes
effective or any supplement to the Prospectus has been filed, (ii) of
the issuance by the Commission of any stop order relating to the
Registration Statement or of the initiation or the threat of any
proceedings for that purpose, (iii) of the receipt of any notice with
respect to the suspension of the qualification of the Shares for
offering or sale in any jurisdiction, and (iv) of the receipt of any
comments from the staff of the Commission relating to the Registration
Statement. If the Commission enters a stop
Trident Securities, a Division of McDonald Investments, Inc.
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Page 14
order relating to the Registration Statement at any time, the Company
will make every reasonable effort to obtain the lifting of such order
at the earliest possible time.
(c) During the time when the Prospectus is required to be
delivered under the Act, the Company will comply with all requirements
imposed upon it by the Act, as now in effect and hereafter amended, and
by the SEC Regulations and the OTS Regulations, as from time to time in
force, so far as necessary to permit the continuance of offers and
sales of or dealings in the Shares in accordance with the provisions
hereof and the Prospectus. If, during the period when the Prospectus is
required to be delivered in connection with the offer and sale of the
Shares, any event relating to or affecting the Company or the Bank
shall occur as a result of which it is necessary, in the opinion of
counsel for McDonald, with concurrence of counsel of the Company, to
amend or supplement the Prospectus in order to make the Prospectus not
false or misleading as to a material fact in light of the circumstances
existing at the time it is delivered to a purchaser of the Shares, the
Company shall prepare and furnish to McDonald promptly a reasonable
number of copies of an amendment or amendments or of a supplement or
supplements to the Prospectus (in form and substance satisfactory to
counsel for McDonald) which shall amend or supplement the Prospectus so
that, as amended or supplemented, the Prospectus shall not contain an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the
circumstances existing at the time the Prospectus is delivered to a
purchaser of the Shares, not misleading. The Company will not file or
use any amendment or supplement to the Registration Statement or the
Prospectus of which McDonald has not first been furnished a copy or to
which McDonald shall reasonably object after having been furnished such
copy. For the purposes of this subsection the Company and the Bank
shall furnish such information with respect to themselves as McDonald
from time to time may reasonably request.
(d) The Company has taken or will take all necessary action as
may be required to qualify or register the Shares for offer and sale by
the Company under the securities or blue sky laws of such jurisdictions
as McDonald and either the Company or its counsel may agree upon;
provided, however, that the Company shall not be obligated to qualify
as a foreign corporation to do business under the laws of any such
jurisdiction. In each jurisdiction where such qualification or
registration shall be effected, the Company, unless McDonald agrees
that such action is not necessary or advisable in connection with the
distribution of the Shares, shall file and make such statements or
reports as are, or reasonably may be, required by the laws of such
jurisdiction.
(e) Appropriate entries will be made in the financial records
of the Bank sufficient to establish a liquidation account for the
benefit of Eligible Account Holders and Supplemental Eligible Account
Holders in accordance with the requirements of the Office.
Trident Securities, a Division of McDonald Investments, Inc.
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(f) The Company will file a registration statement for the
Common Stock under Section 12(g) of the Exchange Act prior to
completion of the Conversion pursuant to the Plan and shall request
that such registration statement be effective upon completion of the
Conversion. The Company shall maintain the effectiveness of such
registration for a minimum period of three years or for such shorter
period as may be required by applicable law.
(g) The Company will make generally available to its security
holders as soon as practicable, but not later than 90 days after the
close of the period covered thereby, an earnings statement (in form
complying with the provisions of Rule 158 of the SEC Regulations)
covering a twelve-month period beginning not later than the first day
of the Company's fiscal quarter next following the effective date (as
defined in said Rule 158) of the Registration Statement.
(h) For a period of three (3) years from the date of this
Agreement (unless the Common Stock shall have been deregistered under
the Exchange Act), the Company will furnish to McDonald, as soon as
publicly available after the end of each fiscal year, a copy of its
annual report to shareholders for such year; and the Company will
furnish to McDonald (i) as soon as publicly available, a copy of each
report or definitive proxy statement of the Company filed with the
Commission under the Exchange Act or mailed to shareholders, and (ii)
from time to time, such other public information concerning the Company
as McDonald may reasonably request.
(i) The Company shall use the net proceeds from the sale of
the Shares consistently with the manner set forth in the Prospectus.
(j) The Company shall not deliver the Shares until each and
every condition set forth in Section 7 hereof has been satisfied,
unless such condition is waived in writing by McDonald.
(k) The Company shall advise McDonald, if necessary, as to the
allocation of deposits, in the case of Eligible Account Holders and
Supplemental Eligible Account Holders, and votes, in the case of Other
Members (as defined in the Plan), and of the Shares in the event of an
oversubscription and shall provide McDonald final instructions as to
the allocation of the Shares ("Allocation Instructions") and such
information shall be accurate and reliable. McDonald shall be entitled
to rely on such instructions and shall have no liability in respect of
its reliance thereon, including without limitation, no liability for or
related to any denial or grant of a subscription in whole or in part,
except for such liability contemplated under Section 8(b) of this
Agreement.
Trident Securities, a Division of McDonald Investments, Inc.
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(l) The Company and the Bank will take such actions and
furnish such information as are reasonably requested by McDonald in
order for McDonald to ensure compliance with the NASD's "Interpretation
Relating to Free-Riding and Withholding."
(m) At the Closing Date, the Company and the Bank will have
completed the conditions precedent to, and shall have conducted the
Conversion in all material respects in accordance with the Plan, the
OTS Regulations and all other applicable laws, regulations, published
decisions and orders, including all terms, conditions, requirements and
provisions precedent to the Conversion imposed by the Office, or
appropriate waivers shall have been obtained.
6. PAYMENT OF EXPENSES. Whether or not the Conversion is consummated,
the Company and the Bank shall pay or reimburse McDonald for allocable expenses
incurred by McDonald relating to the offering of the Shares as provided in
Section 3 hereof; provided, however, that neither the Company nor the Bank shall
pay or reimburse McDonald for any of the foregoing expenses accrued after
McDonald shall have notified the Company or the Bank of its election to
terminate this Agreement pursuant to Section 11 hereof or after such time as the
Company or the Bank shall have given notice in accordance with Section 12 hereof
that McDonald is in breach of this Agreement.
7. CONDITIONS OF MCDONALD'S OBLIGATIONS. Except as may be waived by
McDonald, the obligations of McDonald as provided herein shall be subject to the
accuracy of the representations and warranties contained in Section 2 hereof as
of the date hereof and as of the Closing Date, to the performance by the Company
and the Bank of their obligations hereunder and to the following conditions:
(a) At the Closing Date, McDonald shall receive the favorable
opinion of Xxxxx, Xxxx, Xxxxxxx & Xxxxxxx L.L.P., counsel for the
Company and the Bank, dated the Closing Date, addressed to McDonald, in
form and substance satisfactory to McDonald to the effect that:
(i) The Company is a corporation in existence under
the laws of the State of Louisiana, and the Bank is a savings
and loan association in existence under the laws of the United
States, each having the corporate power to execute, deliver
and perform its respective obligations under this Agreement
and to carry on its business as now conducted and as described
in the Prospectus;
(ii) The Bank is a member of the Federal Home Loan
Bank of Dallas, and the deposit accounts of the Bank are
insured by the SAIF up to the applicable legal limits;
Trident Securities, a Division of McDonald Investments, Inc.
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(iii) The activities of the Bank and the Company as
described in the Prospectus comply, in all material respects,
with applicable federal and state law.
(iv) The Plan complies with, and, to the knowledge of
such counsel, the Conversion has been effected in all material
respects in accordance with, the HOLA and the OTS Regulations;
to the knowledge of such counsel, all of the terms,
conditions, requirements and provisions with respect to the
Plan and the Conversion imposed by the Office, except with
respect to the filing or submission of certain required
post-Conversion reports by the Company or the Bank, have been
complied with by the Company and the Bank in all material
respects; and, to the best knowledge of such counsel, no
person has sought to obtain regulatory or judicial review of
the final action of the Office in approving the Plan;
(v) The Company has authorized capital stock as set
forth in the Registration Statement and the Prospectus;
(vi) The Company has authorized the issuance and sale
of the Shares by all necessary corporate action; the Shares,
upon receipt of payment and issuance in accordance with the
terms of the Plan, will be validly issued, fully paid,
nonassessable and, except as disclosed in the Prospectus, free
of preemptive rights; and purchasers of the Shares from the
Company, upon issuance thereof against payment therefor, will
acquire such Shares free and clear of all claims,
encumbrances, security interests and liens created by the
Company;
(vii) The form of certificate used to evidence the
Shares is in proper form and complies in all material respects
with the applicable requirements of Louisiana law and the
regulations of the Office;
(viii) The Bank has authorized the sale of its
capital stock to the Company by all necessary corporate
action, which sale has been approved by the Office, and such
capital stock, upon receipt of payment and issuance in
accordance with the terms of the Plan and the Prospectus, will
be validly issued, fully paid and nonassessable and owned of
record and beneficially by the Company;
(ix) Subject to the satisfaction of the conditions to
the Office's approval of the Conversion Application and
Application H-(e)1-S and the issuance by the Office of the
Bank's Stock Charter, no consent, approval, authorization or
other action by, or filing or registration with, any
governmental agency is required to be obtained or made by the
Company or the Bank for the execution and delivery of this
Agreement, the issuance of the Shares and the consummation of
the Conversion except as may be required under the "blue sky"
laws of various jurisdictions;
Trident Securities, a Division of McDonald Investments, Inc.
___________________, 2001
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(x) The Company and the Bank have authorized the
execution, delivery and performance of this Agreement by all
necessary corporate action;
(xi) The Plan has been duly adopted by the requisite
vote of the Board of Directors of the Bank and by the
requisite vote of the Board of Directors of the Company; and,
based upon the report of the Inspector of Election, the Plan
has been approved by the requisite vote of the eligible voting
members of the Bank at a duly called meeting;
(xii) The statements in the Prospectus under the
captions "Dividend Policy," "Regulation," "Taxation,"
"Description of Capital Stock," and "Restrictions on
Acquisitions of Globe Bancorp, Inc." insofar as they are, or
refer to, statements of law or legal conclusions (excluding
financial data included therein or omitted therefrom, as to
which an opinion need not be expressed), have been prepared or
reviewed by such counsel and are accurate in all material
respects;
(xiii) The Conversion Application, the Registration
Statement, the Prospectus and the Proxy Statement, in each
case as amended or supplemented, comply as to form in all
material respects with the requirements of the Act, the SEC
Regulations, the HOLA and the OTS Regulations, as the case may
be (except as to information with respect to McDonald included
therein and financial statements, notes to financial
statements, financial tables and other financial and
statistical data, including the appraisal, included therein or
omitted therefrom, as to which no opinion need be expressed);
to such counsel's knowledge after due inquiry, all documents
and exhibits required to be filed with the Conversion
Application and the Registration Statement have been so filed
and the descriptions in the Conversion Application and the
Registration Statement of such documents and exhibits are
accurate in all material respects;
(xiv) The Form AC has been approved by the Office,
and the Prospectus and the Proxy Statement have been
authorized for use by the Office; the Registration Statement
and any post-effective amendment thereto has been declared
effective by the Commission; no proceedings are pending by or
before the Commission or the Office seeking to revoke or
rescind the orders declaring the Registration Statement
effective or approving the Conversion Application or, to such
counsel's knowledge, are contemplated or threatened (provided
that for this purpose such counsel need not regard any
litigation or governmental procedure to be "threatened" unless
the potential litigant or government authority has manifested
to the management of the Company or the Bank, or to such
counsel, a present intention to initiate such litigation or
proceeding);
Trident Securities, a Division of McDonald Investments, Inc.
___________________, 2001
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(xv) The execution and delivery of this Agreement,
and the consummation of the Conversion by the Company and the
Bank, do not violate any provision of the certificate of
incorporation, charter or bylaws of the Company or the Bank,
do not violate or constitute a breach of or default under any
contract, agreement or instrument described in the Prospectus
or filed as an exhibit to the Registration Statement, and, to
the knowledge of such counsel, do not violate any applicable
law, regulation or any judgment or order of any government,
governmental instrumentality or court that is binding on the
Company or the Bank (including any requirements imposed on the
Bank as a result of its conversion from a federal credit union
to a federal savings and loan association) or any of its
assets, properties or operations;
(xvi) To such counsel's knowledge, the Company and
the Bank have obtained all licenses, permits and other
governmental authorizations currently required for the conduct
of their respective businesses as such businesses are
described in the Prospectus, all such licenses, permits and
other governmental authorizations are in full force and effect
and the Company and the Bank are in all material respects
complying therewith, except where the failure to hold such
licenses, permits or governmental authorizations or the
failure to so comply would not have a material adverse effect
on the Company and the Bank;
(xvii) To such counsel's knowledge, there is no
action, suit, proceedings, inquiry or investigation before or
by any court or governmental agency or body, now pending or
threatened, against either the Company or the Bank which
individually, or in the aggregate, would have a material
adverse effect on the Company and the Bank, taken as a whole;
(xviii) This agreement has been duly executed and
delivered by the Company and the Bank and is enforceable
against the Bank and the Company (except as the enforceability
thereof may be limited by bankruptcy, insolvency, moratorium,
reorganization or similar laws relating to or affecting the
enforcement of creditors' rights generally or the rights of
creditors of insured depository institutions or by general
equity principles, regardless of whether such enforceability
is considered in a proceeding in equity or at law, and except
to the extent that the provisions of Sections 8 and 9 hereof
may be unenforceable as against public policy or pursuant to
Section 23A);
(xix) To such counsel's knowledge, the execution and
delivery of this Agreement and the consummation of the
Conversion by the Company and the Bank do not constitute a
breach of or default (or an event which, with notice or lapse
of
Trident Securities, a Division of McDonald Investments, Inc.
___________________, 2001
Page 20
time or both, would constitute a default) under, give rise to
any right of termination, cancellation or acceleration
contained in, or result in the creation or imposition of any
lien, charge or other encumbrance upon any of the properties
or assets of the Company or the Bank pursuant to any of the
terms, provisions or conditions of, any material agreement,
contract, indenture, bond, debenture, note, instrument or
obligation to which the Company or the Bank are a party or
violate any governmental license or permit or any enforceable
published law, administrative regulation or order or court
order, writ, injunction or decree (except as may be required
under the "blue sky" laws as to which no opinion need be
expressed), which breach, default, encumbrance or violation
would have a material adverse effect on the Company and the
Bank, taken as a whole; and
(xx) To such counsel's knowledge, there has been no
material breach of any provision of the Company's or the
Bank's respective certificate of incorporation, charter or
bylaws or breach or default (or the occurrence of any event
which, with notice or lapse of time or both, would constitute
a default) under any agreement, contract, indenture,
debenture, bond, note, instrument or obligation to which the
Company or the Bank is a party or by which any of them or any
of their respective assets or properties may be bound, or any
governmental license or permit, or a violation of any
enforceable published law, administrative regulation or order,
or court order, writ, injunction or decree which breach,
default, encumbrance or violation would have a material
adverse effect on the Company and the Bank, taken as a whole.
Trident Securities, a Division of McDonald Investments, Inc.
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In rendering such opinion, such counsel may rely as to matters of fact
on certificates of officers and directors of the Company and the Bank and
certificates of public officials delivered pursuant to this Agreement. Such
counsel may assume that any agreement is the valid and binding obligation of any
parties to such agreement other than the Company and the Bank. Such opinion may
be governed by, and interpreted in accordance with, the Legal Opinion Accord
("Accord") of the ABA Section of Business Law (1991), and, as a consequence,
such opinion may be rendered subject to the qualifications, exceptions,
definitions, limitations on coverage and other limitations, all as more
particularly described in the Accord. Further, references in such opinion to
such counsel's "knowledge" may be limited to "knowledge" as defined in the
Accord (or knowledge based on certificates). In addition, the "General
Qualifications" set forth in the Accord and other customary assumptions and
limitations may apply to such opinion. Such opinion may be limited to present
statutes, regulations and judicial interpretations and to facts as they
presently exist; in rendering such opinion, such counsel need assume no
obligation to revise or supplement them should the present laws be changed by
legislative or regulatory action, judicial decision or otherwise; and such
counsel need express no view, opinion or belief with respect to whether any
proposed or pending legislation, if enacted, or any regulations or any policy
statements issued by any regulatory agency, whether or not promulgated pursuant
to any such legislation, would affect the validity of the execution and delivery
by the Company and the Bank of this Agreement or the issuance of the Shares.
Further, in rendering such opinions, Xxxxx, Xxxx, Xxxxxxx & Xxxxxxx L.L.P. may
rely on the opinion of _______________________, with respect to any matter of
__________ law.
(b) At the Closing Date, McDonald shall receive the letter of
Xxxxx, Matz, Xxxxxxx & Xxxxxxx L.L.P., special counsel for the Company
and the Bank, dated the Closing Date, addressed to McDonald, in form
and substance satisfactory to McDonald and to the effect that: based on
such counsel's participation in conferences with representatives of the
Company, the Bank, the independent appraiser, the independent certified
public accountants, McDonald and its counsel, review of documents and
understanding of applicable law (including the requirements of Form S-1
and the character of the Registration Statement contemplated thereby)
and the experience such counsel has gained in its practice under the
Act, nothing has come to such counsel's attention that would lead it to
believe that the Registration Statement, as amended (except as to
information in respect of McDonald contained therein and except as to
the appraisal, financial statements, notes to financial statements,
financial tables and other financial and statistical data contained
therein or omitted therefrom, as to which such counsel need express no
comment), at the time it became effective contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements made
therein, not misleading, or that the Prospectus, as amended or
supplemented (except as to information in respect of McDonald contained
therein and except as to the appraisal, financial statements, notes to
financial statements, financial tables and other financial and
statistical data contained therein or omitted therefrom as to which
such counsel need express no comment), at the time the Prospectus was
filed with the Commission under Rule 424(b), and at the
Trident Securities, a Division of McDonald Investments, Inc.
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Closing Date, contained any untrue statement of a material fact or
omitted to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading (in making this statement such counsel may state that it has
not undertaken to verify independently the information in the
Registration Statement or Prospectus and, therefore, does not assume
any responsibility for the accuracy or completeness thereof).
(c) Counsel for McDonald shall have been furnished such
documents as they reasonably may require for the purpose of enabling
them to review or pass upon the matters required by McDonald, and for
the purpose of evidencing the accuracy, completeness or satisfaction of
any of the representations, warranties or conditions contained in this
Agreement, including but not limited to, resolutions of the Board of
Directors of the Company and the Bank regarding the authorization,
execution and delivery of this Agreement and the transactions
contemplated by the Plan and this Agreement.
(d) Prior to and at the Closing Date, in the reasonable
opinion of McDonald, (i) there shall have been no material adverse
change in the condition (financial or otherwise), business or results
of operations of the Company and the Bank, taken as a whole, since the
latest date as of which information is set forth in the Prospectus,
except as referred to therein; (ii) there shall have been no
transaction entered into by the Company or the Bank after the latest
date as of which the financial condition of the Company or the Bank is
set forth in the Prospectus other than transactions referred to or
contemplated therein, transactions in the ordinary course of business,
and transactions which are not material to the Company and the Bank,
taken as a whole; (iii) neither the Company nor the Bank shall have
received from any governmental authority any direction (oral or
written) to make any change in the method of conducting their
respective businesses which is material to the business of the Company
and the Bank, taken as a whole, with which they have not complied; (iv)
no action, suit or proceeding, at law or in equity or before or by any
federal or state commission, board or other administrative agency,
shall be pending or threatened against the Company or the Bank
affecting any of their respective assets, wherein an unfavorable
decision, ruling or finding would have a material adverse effect on the
Company and the Bank, taken as a whole; and (v) the Shares shall have
been qualified or registered for offering and sale by the Company under
the "blue sky" laws of such jurisdictions as McDonald and the Company
shall have agreed upon.
(e) At the Closing Date, McDonald shall receive a certificate
of the principal executive officer and the principal financial officer
of each of the Company and the Bank, dated the Closing Date, to the
effect that: (i) they have examined the Prospectus and, at the time the
Registration Statement was declared effective by the Commission and at
the time the Prospectus was authorized by the Office for use, the
Prospectus did not contain an untrue statement of a material fact or
omit to state a material fact necessary in order to make the
Trident Securities, a Division of McDonald Investments, Inc.
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Page 23
statements therein, in light of the circumstances under which they were
made, not misleading with respect to the Company or the Bank; (ii)
since the date the Registration Statement was declared effective by the
Commission and since the date the Prospectus became authorized by the
Office for use, no event has occurred which should have been set forth
in an amendment or supplement to the Prospectus which has not been so
set forth, including specifically, but without limitation, any material
change in the business, condition (financial or otherwise) or results
of operations of the Company or the Bank, and the conditions set forth
in clauses (ii) through (v) inclusive of subsection (d) of this Section
7 have been satisfied; (iii) no order has been issued by the Commission
or the Office to suspend the Offering or the effectiveness of the
Prospectus, and no action for such purposes has been instituted or, to
the knowledge of such officers, threatened by the Commission or the
Office; (iv) to the knowledge of such officers, no person has sought to
obtain review of the final actions of the Office approving the Plan;
and (v) all of the representations and warranties contained in Section
2 of this Agreement are true and correct, with the same force and
effect as though expressly made on the Closing Date.
(f) At the Closing Date, McDonald shall receive, among other
documents, (i) copies of the letters from the Office authorizing the
use of the Prospectus and the Proxy Statement and the approval of the
Conversion Application (ii) if available, a copy of the order of the
Commission declaring the Registration Statement effective; (iii) a copy
of the letter from the Office evidencing the corporate existence of the
Bank; (iv) a copy of the letter from the appropriate Louisiana
authority evidencing the incorporation (and, if generally available
from such authority, good standing) of the Company; (v) a copy of the
Company's Certificate of incorporation certified by the appropriate
Louisiana governmental authority; (vi) a copy of the letter from the
Office approving the Bank's Stock Charter; (vii) copy of the
certificate from the FDIC certifying to the insured status by the Bank;
and (viii) copy of the letter to FHLB of Dallas evidencing the Bank's
membership therein.
(g) As soon as available after the Closing Date, McDonald
shall receive a certified copy of the Bank's Stock Charter as executed
by the Office.
(h) Concurrently with the execution of this Agreement,
McDonald shall receive a letter from Xxxx Xxxxxx Xxxxxxx L.L.P.,
independent certified public accountants, addressed to McDonald, the
Company and the Bank, in substance and form satisfactory to McDonald,
with respect to the financial statements of the Bank and other
financial information contained in the Prospectus.
(i) At the Closing Date, McDonald shall receive a letter in
form and substance satisfactory to McDonald from Xxxx Xxxxxx Xxxxxxx
L.L.P, independent certified public accountants, dated the Closing Date
and addressed to McDonald, the Company and the Bank, confirming the
statements made by them in the letters delivered by them pursuant to
the
Trident Securities, a Division of McDonald Investments, Inc.
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preceding subsection as of a specified date not more than five (5)
business days prior to the Closing Date.
(j) At the Closing Date, McDonald shall receive the opinion of
Xxxxx, Xxxx, Xxxxxxx & Xxxxxxx L.L.P., special counsel to the Company
and the Bank, dated the Closing Date, in form and substance
satisfactory to McDonald and to the Conversion will constitute a
tax-free organization under the Internal Revenue Code of 1986, as
amended; McDonald shall have also received the letter of Xxxx Xxxxxx
Xxxxxxx L.L.P., dated the Closing Date, in form and substance
satisfactory to McDonald and to the effect that the Conversion will not
be a taxable transaction for the Bank or the Company under the laws of
Illinois; and that the facts and representations upon which such
entities relied upon in rendering their respective opinions to the Bank
and the Company are accurate and complete.
All such opinions, certificates, letters and documents shall be in
compliance with the provisions hereof only if they are, in the reasonable
opinion of McDonald and its counsel, satisfactory to McDonald. Any certificates
signed by an officer or director of the Company or the Bank prepared for
McDonald's reliance and delivered to McDonald or to counsel for McDonald shall
be deemed a representation and warranty by the Company and the Bank to McDonald
as to the statements made therein. If any condition to McDonald's obligations
hereunder to be fulfilled prior to or at the Closing Date is not so fulfilled,
McDonald may terminate this Agreement or, if McDonald so elects, may waive any
such conditions which have not been fulfilled, or may extend the time of their
fulfillment. If McDonald terminates this Agreement as aforesaid, the Company and
the Bank shall reimburse McDonald for its expenses as provided in Section 3(b)
hereof.
8. INDEMNIFICATION.
(a) The Company and the Bank jointly and severally agree to
indemnify and hold harmless McDonald, its officers, directors,
employees and agents and each person, if any, who controls McDonald
within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act, against any and all loss, liability, claim, damage and
expense whatsoever and shall further promptly reimburse such persons
for any legal or other expenses reasonably incurred by each or any of
them in investigating, preparing to defend or defending against any
such action, proceeding or claim (whether commenced or threatened)
arising out of or based upon (i) any misrepresentation by the Company
or the Bank in this Agreement or any breach of warranty by the Company
or the Bank with respect to this Agreement or arising out of or based
upon any untrue or alleged untrue statement of a material fact or the
omission or alleged omission of a material fact required to be stated
or necessary to make not misleading any statements contained in (A) the
Registration Statement or the Prospectus or (B) any application
(including the Form AC and the Form H-(e)1-S) or other document or
communication (in this Section 8 collectively called "Application")
prepared or executed by or on behalf of the Company or the Bank or
based upon information furnished in writing by
Trident Securities, a Division of McDonald Investments, Inc.
___________________, 2001
Page 25
or on behalf of the Company or the Bank, whether or not filed in any
jurisdiction, to effect the Conversion or qualify the Shares under the
securities laws thereof or filed with the Office or Commission, unless
such statement or omission was made in reliance upon and in conformity
with information furnished to the Company or the Bank with respect to
McDonald by or on behalf of McDonald expressly for use in the
Prospectus or any amendment or supplement thereof or in any
Application, as the case may be, or (ii) the participation by McDonald
in the Conversion; provided, however, that this indemnification
agreement will not apply to any loss, liability, claim, damage or
expense found in a final judgment by a court of competent jurisdiction
to have resulted primarily from the bad faith, willful misconduct or
gross negligence of McDonald or any other party who may otherwise be
entitled to indemnification pursuant to this Section 8(a). This
indemnity shall be in addition to any liability the Company and the
Bank may otherwise have to McDonald.
(b) The Company shall indemnify and hold harmless McDonald,
its officers, directors, employees and agents and each person, if any,
who controls McDonald within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act for any liability whatsoever arising
out of (i) the Allocation Instructions or (ii) any records of account
holders, depositors, borrowers and other members of the Bank delivered
to McDonald by the Bank or its agents for use during the Conversion;
provided, however, that this indemnification agreement will not apply
to any loss, liability, claim, damage or expense found in a final
judgment by a court of competent jurisdiction to have resulted
principally and directly from the bad faith, willful misconduct or
gross negligence of McDonald or any other party who may otherwise be
entitled to indemnification pursuant to this Section 8(b). This
indemnity shall be in addition to any liability the Company and the
Bank may otherwise have to McDonald.
(c) McDonald agrees to indemnify and hold harmless the Company
and the Bank, their officers, directors and employees and each person,
if any, who controls the Company and the Bank within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act, to the same
extent as the foregoing indemnity from the Company and the Bank to
McDonald, but only with respect to (i) statements or omissions, if any,
made in the Prospectus or any amendment or supplement thereof, in any
Application or to a purchaser of the Shares in reliance upon, and in
conformity with, written information furnished to the Company or the
Bank with respect to McDonald by McDonald expressly for use in the
Prospectus or in any Application; (ii) any misrepresentation by
McDonald in Section 2(b) of this Agreement; or (iii) any liability of
the Company or the Bank which is found in a final judgment by a court
of competent jurisdiction (not subject to further appeal) to have
resulted principally and directly from gross negligence, bad faith or
willful misconduct of McDonald.
(d) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof
Trident Securities, a Division of McDonald Investments, Inc.
___________________, 2001
Page 26
is to be made against the indemnifying party under this Section 8,
notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than
under this Section 8. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with
the other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party, and after
notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will
not be liable to such indemnified party under this Section 8 for any
legal or other expenses subsequently incurred by such indemnified party
in connection with the defense thereof other than the reasonable cost
of investigation except as otherwise provided herein. In the event the
indemnifying party elects to assume the defense of any such action and
retain counsel acceptable to the indemnified party, the indemnified
party may retain additional counsel, but shall bear the fees and
expenses of such counsel unless (i) the indemnifying party shall have
specifically authorized the indemnified party to retain such counsel or
(ii) the parties to such suit include such indemnifying party and the
indemnified party, and such indemnified party shall have been advised
by counsel that one or more material legal defenses may be available to
the indemnified party which may not be available to the indemnifying
party, in which case the indemnifying party shall not be entitled to
assume the defense of such suit notwithstanding the indemnifying
party's obligation to bear the fees and expenses of such counsel. An
indemnifying party against whom indemnity may be sought shall not be
liable to indemnify an indemnified party under this Section 8 if any
settlement of any such action is effected without such indemnifying
party's consent. To the extent required by law, this Section 8 is
subject to and limited by the provisions of Section 23A.
9. CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 8 above is for any reason held to be unavailable to McDonald, the
Company and/or the Bank other than in accordance with its terms, the Company or
the Bank and McDonald shall contribute to the aggregate losses, liabilities,
claims, damages, and expenses of the nature contemplated by said indemnity
agreement incurred by the Company or the Bank and McDonald (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Bank, on the one hand, and McDonald, on the other hand, from the
offering of the Shares or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above, but also the
relative fault of the Company or the Bank, on the one hand, and McDonald, on the
other hand, in connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or judgments, as well as any other
relevant equitable considerations. The relative benefits received by the Company
and the Bank, on the one hand, and McDonald, on the other hand, shall be deemed
to be in the same proportion as the total
Trident Securities, a Division of McDonald Investments, Inc.
___________________, 2001
Page 27
net proceeds from the Conversion received by the Company and the Bank bear to
the total fees and expenses received by McDonald under this Agreement. The
relative fault of the Company or the Bank, on the one hand, and McDonald, on
the other hand, shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Bank or by McDonald and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the Bank and McDonald agree that it would not be just
and equitable if contribution pursuant to this Section 9 were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by the indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 9, McDonald shall not be required
to contribute any amount in excess of the amount by which fees owed McDonald
pursuant to this Agreement exceeds the amount of any damages which McDonald has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who is not guilty of such fraudulent
misrepresentation. To the extent required by law, this Section 9 is subject to
and limited by the provisions of Section 23A.
10. SURVIVAL OF AGREEMENTS, REPRESENTATIONS AND INDEMNITIES. The
respective indemnities of the Company and the Bank and McDonald and the
representations and warranties of the Company and the Bank and of McDonald 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 McDonald or the Company or the Bank or any
controlling person or indemnified party referred to in Section 8 hereof, and
shall survive any termination or consummation of this Agreement and/or the
issuance of the Shares, and any legal representative of McDonald, the Company,
the Bank and any such controlling persons shall be entitled to the benefit of
the respective agreements, indemnities, warranties and representations.
11. TERMINATION. McDonald may terminate this Agreement by giving the
notice indicated below in this Section at any time after this Agreement becomes
effective as follows:
(a) If any domestic or international event or act or
occurrence has materially disrupted the United States securities
markets such as to make it, in McDonald's reasonable opinion,
impracticable to proceed with the offering of the Shares; or if trading
on the New York Stock Exchange shall have suspended; or if the United
States shall have become involved in a war or major hostilities; or if
a general banking moratorium has been declared
Trident Securities, a Division of McDonald Investments, Inc.
___________________, 2001
Page 28
by a state or federal authority which has material effect on the Bank
or if the Conversion; ora moratorium in foreign exchange trading by
major international banks or persons has been declared; or if there
shall have been a material adverse change in the capitalization,
financial condition or business of the Company, or if the Bank shall
have sustained a material or substantial loss by fire, flood,
accident, hurricane, earthquake, theft, sabotage or other calamity or
malicious act, whether or not said loss shall have been insured; or if
there shall have been a material adverse change in the condition,
financial or otherwise, or prospects of the Company or the Bank.
(b) If McDonald elects to terminate this Agreement as provided
in this Section, the Company and the Bank shall be notified promptly by
McDonald by telephone or telegram, confirmed by letter.
(c) If this Agreement is terminated by McDonald for any of the
reasons set forth in subsection (a) above, and to fulfill their
obligations, if any, pursuant to Sections 3, 6, 8(a) and 9 of this
Agreement and upon demand, the Company and the Bank shall pay McDonald
the full amount so owing thereunder.
(d) The Bank may terminate the Conversion in accordance with
the terms of the Plan. Such termination shall be without liability to
any party, except that the Company and the Bank shall be required to
fulfill their obligations pursuant to Sections 3, 6, 8(a), 8(d) and 9
of this Agreement.
12. NOTICES. All communications hereunder, except as herein otherwise
specifically provided, shall be in writing and if sent to McDonald shall be
mailed, delivered or faxed and confirmed to Trident Securities, Inc., 0000 Xxx
Xxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Mr. X. Xxxxxx
Xxxx and if sent to the Company or the Bank, shall be mailed, delivered or
telegraphed and confirmed to Globe Homestead Federal Savings Association, 0000
Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxx 00000, Attention: Xxxxxx X.
Xxxxxxxx, President and Chief Executive Officer of the Company and the Bank
(with a copy to Elias, Matz, Xxxxxxx & Xxxxxxx L.L.P., 000 00xx Xxxxxx XX,
Xxxxxxxxxx, XX 00000 (Attention: Xxxxx X. Xxxxxxxx).
13. PARTIES. This Agreement shall inure solely to the benefit of, and
shall be binding upon, McDonald, the Company, the Bank and the controlling and
other persons referred to in Section 8 hereof, and their respective successors,
legal representatives and assigns, and no other person shall have or be
construed to have any legal or equitable right, remedy or claim under or in
respect of or by virtue of this Agreement or any provision herein contained. The
undersigned consent to the assignment of rights and obligations of Trident
Securities, Inc. hereunder to McDonald Investments Inc.
Trident Securities, a Division of McDonald Investments, Inc.
___________________, 2001
Page 30
14. CONSTRUCTION. This Agreement shall be governed by and construed in
accordance with the substantive laws of North Carolina regardless of the laws
that might otherwise govern under applicable principles of conflicts of law
thereof.
15. COUNTERPARTS AND DEFINITIONS. This Agreement may be executed in
separate counterparts, each of which when so executed and delivered shall be an
original, but all of which together shall constitute but one and the same
instrument. Any initially capitalized terms not defined herein shall have the
meanings ascribed thereto in the Prospectus.
* * *
[Signature page follows]
Trident Securities, a Division of McDonald Investments, Inc.
___________________, 2001
Page 31
Please acknowledge your agreement to the foregoing as of the date above
written by signing below and returning to the Company one copy of this letter.
GLOBE BANCORP, INC. GLOBE HOMESTEAD
FEDERAL SAVINGS ASSOCIATION
By: By:
-------------------------------- ------------------------------------
Xxxxxx X. Xxxxxxxx Xxxxxx X. Xxxxxxxx
President and Chief Executive President and Chief Executive
Officer Officer
Agreed to and accepted:
TRIDENT SECURITIES
A Division of McDonald Investments Inc.
By:
-----------------------------------
------------------------
Exhibit A
McDonald Investments, Inc. is a registered selling agent in the jurisdictions
listed below:
Alabama Montana
Xxxxxx Xxxxxxxx
Arizona Nevada
Arkansas New Hampshire
California New Jersey
Colorado New Mexico
Connecticut New York
Delaware North Carolina
District of Columbia North Dakota
Florida Ohio
Georgia Oklahoma
Hawaii Oregon
Idaho Pennsylvania
Illinois Rhode Island
Indiana South Carolina
Iowa South Dakota
Kansas Tennessee
Kentucky Texas
Louisiana Utah
Maine Vermont
Maryland Virginia
Massachusetts Washington
Michigan West Virginia
Minnesota Wisconsin
Mississippi Wyoming
Missouri
