Exhibit 1.2
PEOPLES COMMUNITY BANCORP, INC.
Up to 1,851,500 Conversion Shares and up to 787,760 Exchange Shares
COMMON STOCK
($0.01 Par Value)
Subscription Price for Conversion Shares: $10.00 Per Share
AGENCY AGREEMENT
February ___, 2000
Xxxxxxx Xxxx & Company,
a division of Xxxxx, Xxxxxxxx & Xxxxx, Inc.
000 Xxxxxxxxx Xxxxx
Xxxxxx, Xxxx 00000-0000
Ladies and Gentlemen:
Peoples Community Bancorp, Inc. a Delaware corporation (the "Company")
and People's Building, Loan and Savings Company, an Ohio-chartered savings and
loan association currently in the mutual form of organization (the "Bank," which
shall include all references to the Bank in the mutual form, or Peoples
Community Bank in the stock form of organization, 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 Xxxxxxx Xxxx & Company, a division of Xxxxx,
Xxxxxxxx & Xxxxx, Inc. ("Xxxx" or "Agent") as follows:
SECTION 1. THE OFFERING AND THE MERGERS. The Bank, in accordance with
its plan of conversion adopted by its Board of Directors (the "Plan"), intends
to convert from an Ohio-chartered savings and loan association to a federally
chartered stock savings bank, chane its name to Peoples Community Bank, and to
issue all of its issued and outstanding capital stock to the Company. In
addition, pursuant to the Plan, the Company will offer and sell up to 1,851,500
shares of its common stock, par value $0.01 per share (the "Shares" or "Common
Stock"), in a subscription offering (the "Subscription Offering") to (1)
depositors of the Bank and Oakley Improved Building and Loan Company ("Oakley")
with savings accounts of $50 or more as of the close of business on June 30,
1998 ("Eligible Account Holders"), (2) the Company's Employee Stock Ownership
Plan ("ESOP"), (3) depositors of the Bank and Oakley with savings accounts of
$50 or more as of December 31, 1999 ("Supplemental Eligible Account Holders")
and (4) depositors and certain borrowers of the Bank and Oakley as of
________________, 1999 (the "Voting Record Date" and such depositors "Other
Members"), and (v) certain officers,
Page 2
directors and employees of the Bank and Oakley. To the extent any Shares remain
unsold in the Subscription Offering, the Company will offer shares for sale in a
direct community offering (the "Community Offering" and, when referred to
together with the Subscription Offering, the "Subscription and Community
Offering"), the Shares not so subscribed for or ordered in the Subscription
Offering to certain members of the general public to whom a copy of the
Prospectus (as hereinafter defined) is delivered ("Other Subscribers") (all such
offerees being referred to in the aggregate as "Eligible Offerees"). It is
anticipated that shares not subscribed for in the Subscription Offering and any
Community Offering will be offered to members of the general public on a best
efforts basis by a selling group of broker-dealers managed by Xxxx (the
"Syndicated Community Offering") (the Subscription Offering, Community Offering
and Syndicated Community Offering are collectively referred to as the
"Offering"). It is acknowledged that the purchase of Shares in the Offering is
subject to the maximum and minimum purchase limitations as described in the Plan
and that the Company and the Bank may reject, in whole or in part, any orders
received in the Community Offering or Syndicated Community Offering.
Collectively, these transactions are referred to herein as the "Conversion." The
shares will be sold in the Offering for a purchase price of $10.00 per share
(the "Purchase Price").
In addition, On September 30, 1999, the Bank entered into an Agreement
of Merger (the "Oakley Merger Agreement") with Oakley, an Ohio-chartered savings
and loan association, pursuant to which Oakley will be merged with and into the
Bank (the "Oakley Merger"). Pursuant to the terms of the Oakley Merger
Agreement, (i) immediately prior to the completion of the Conversion Oakley
shall merge with and into the Bank and each Oakley deposit account shall
automatically and without further action of Oakley or the Bank become a fully
paid and non-assessable outstanding deposit account of the Bank having the same
withdrawal value and terms and conditions as immediately prior to the effective
date of the merger, and (ii) members and former members of Oakley shall have
priority subscription rights and liquidation rights in the Conversion to the
same extent as similar members and former members of the Bank.
In addition, on September 30, 1999, the Bank entered into an Agreement
and Plan of Merger (the "HH Merger Agreement" and together with the Oakley
Merger Agreement the "Merger Agreements") with Harvest Home Financial Corp., a
Delaware corporation ("Harvest Home"), pursuant to which immediately following
the completion of the Conversion Harvest Home will be merged with and into the
Company (the "Harvest Home Merger, and together with the Oakley Merger, the
"Mergers"). Pursuant to the terms of the HH Merger Agreement, immediately upon
consummation of the Harvest Home Merger, each share of Harvest Home common
stock, par value $0.01 per share (the "Harvest Home Common Stock"), will be
converted into the right to receive $9.00 cash and shares of Company Common
Stock with a value of $9.00 based solely on the Purchase Price. It is
anticipated that, based on the number of outstanding shares of Harvest Home
Common Stock as of ________________________, 2000, the Harvest Home Merger will
result in an aggregate of ____________ shares of Common Stock being issued in
exchange for shares of Harvest Home Common Stock and, in the event all
Page 3
previously granted options to acquire Harvest Home Common Stock were exercised,
up to ___________ shares of Common Stock could be issued in exchange for Harvest
Home Common Stock (the "Exchange Shares").
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (File No. 333-______________)
(the "Registration Statement"), containing a prospectus relating to the Offering
and the Harvest Home Merger, for the registration of the Common Stock to be
issued in the Conversion and Harvest Home Merger 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 Bank has filed with the OTS an Application for
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. The Company has filed with the OTS an
application (the "Holding Company Application") to become a savings and loan
holding company and for approval to acquire the Bank, and has filed
________________ with the Division of Financial Institutions of the State of
Ohio (the "Division")
SECTION 2. RETENTION OF XXXX, COMPENSATION, SALE AND DELIVERY OF THE
SHARES. Subject to the terms and conditions herein set forth, the Company and
the Bank hereby appoint Xxxx (ii) 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 Bank with
respect to the Company's sale of the Shares in the Offering and (ii) to
participate in the Offering in the areas of market making, research coverage and
syndicate formation (if necessary).
On the basis of the representations, warranties, and agreements herein
contained, but subject to the terms and conditions herein set forth, Xxxx
accepts such appointment and agrees to consult with and advise the Company and
the Bank as to the matters set forth in the letter agreement ("Letter
Agreement"), dated September 30, 1999, between the Bank and Xxxx (a copy of
which is attached hereto as Exhibit A). It is acknowledged by the Company and
the Bank that Xxxx 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
Page 4
of a Syndicated Community Offering, Xxxx 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 Xxxx pursuant to this Agreement shall terminate upon
the completion or termination or abandonment of the Plan by the Company or upon
termination of the Offering, but in no event later than the date (the "End
Date") which is 45 days after the Closing Date (as hereinafter defined). All
fees or expenses due to Xxxx but unpaid will be payable to Xxxx in next day
funds at the earlier of the Closing Date (as hereinafter defined) or the End
Date. In the event the Offering is extended beyond the End Date, the Company,
the Bank and Xxxx may agree to renew this Agreement under mutually acceptable
terms.
In the event the Company is unable to sell a minimum of 1,190,000
Shares (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 Offering is terminated for any reason not attributable
to the action or inaction of Xxxx, Xxxx 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 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 Xxxx and its counsel. The
release of Shares against payment therefor shall be made on a date and at a
place acceptable to the Company, the Bank and Xxxx. Certificates for shares
shall be delivered directly to the purchasers in accordance with their
directions. The time and date upon which the Company shall release or deliver,
or have released or delivered, the Shares sold in the Offering, in accordance
with the terms herein, is called the "Closing Time" and "Closing Date,"
respectively.
Xxxx shall receive the following compensation for their services
hereunder:
(a) A Management Fee of $25,000 payable in four consecutive monthly
installments of $6,250. Such fees shall be deemed to have been earned when due.
Should the Mergers or
Page 5
Conversion be terminated for any reason not attributable to the action or
inaction of Xxxx, Xxxx shall have earned and be entitled to be paid fees
accruing through the stage at which point the termination occurred. Xxxx
acknowledges prior receipt of the $_________ as of the date of this letter.
(b) A Success Fee of $215,000 upon completion of the Offering. The
Management fee described in paragraph 2(a) shall be applied against the Success
Fee described in this paragraph 2(b).
(c) If any shares of the Company's stock remain available after the
Subscription and any Community Offering, at the request of the Bank, Xxxx will
seek to form a syndicate of registered broker-dealers to assist in the sale of
such shares of Common Stock on a best efforts basis, subject to the terms and
conditions set forth in the selected dealers agreement. Xxxx will endeavor to
distribute the Common Stock among dealers in a fashion which best meets the
distribution objectives of the Bank and the Plan. Xxxx will be paid a fee not to
exceed 5.5% of the aggregate Purchase Price of the shares of Common Stock sold
pursuant to the selected dealers agreement and then will pass on to selected
broker-dealers who assist in the syndicated community an amount competitive with
gross underwriting discounts charged at such time for comparable amounts of
stock sold at a comparable price per share in a similar market environment. Fees
with respect to purchases affected with the assistance of a broker/dealer shall
be transmitted by Xxxx to such broker/dealer. The decision to utilize selected
broker-dealers will be made by the Bank upon consultation with Xxxx. In the
event, with respect to any stock purchases, fees are paid pursuant to this
subparagraph 2(e), such fees shall be in addition to payment pursuant to
subparagraphs 2(a) and 2(b).
(d) The Bank will bear the expenses of the Offering customarily borne
by issuers including, without limitation, Division, SEC, "Blue Sky," and NASD
filing and registration fees; the fees of the Bank's accountants, conversion
agent, attorneys, appraiser, transfer agent and registrar, printing, mailing and
marketing expenses associated with the Conversion; and the fees set forth under
this Section 2, and fees for "Blue Sky" legal work. If Xxxx incurs expenses on
behalf of the Bank, the Bank will reimburse Xxxx for such expenses. Xxxx shall
not request reimbursement for out-of-pocket expenses, including costs of legal
counsel, travel, meals and lodging, photocopying, telephone, facsimile and
couriers. Full payment of Xxxx'x actual expenses incurred on behalf of the Bank
and advisory fees and compensation shall be made in next day funds on the
earlier of the Closing Date or a determination by the Bank to terminate or
abandon the Plan.
Xxxx will provide financial advisory assistance for a period of one
year following completion of the Conversion as set forth in the Letter
Agreement. Following this initial one-year term, if Xxxx and the Company wish to
continue the relationship, a fee will be negotiated and an agreement entered
into at that time.
SECTION 3. PROSPECTUS AND OFFERING. The Shares are to be initially
offered in the
Page 6
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 Bank
jointly and severally represent and warrant to Xxxx on the date hereof as
follows:
(a) The Registration Statement was declared effective by the Commission
on February ___, 1999. 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,
the Bank or Oakley contained in Sales Information (as such term is defined in
Section 8 hereof) authorized by the Company or the Bank for use in connection
with the Offering, did not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading, and at the time any Rule 424(b) 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 Bank by Xxxx expressly regarding Xxxx for use in the Prospectus
under the caption "THE OFFERING--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 Xxxx.
(b) The Bank 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 Bank's and Oakley's Proxy Statements, to be
dated February _________, 1999, relating to the Conversion (the "Proxy
Statements"), and the Prospectus. The OTS has, by letter dated February ____,
1999, 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 Bank, 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), does 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 Bank by Xxxx expressly
regarding Xxxx for use in the Prospectus contained in the Conversion Application
under the caption "THE OFFERING--Marketing Arrangements" or statements in or
omissions from any sales information or information filed pursuant to state
securities or blue sky laws or regulations
Page 7
regarding Xxxx.
(c) The Company has filed with the OTS the Company's Form H-(e)1/3
application for approval of its acquisition of the Bank, Harvest Home and Oakley
(the "Holding Company Application") pursuant to the Home Owners' Loan Act
("HOLA") and the regulations promulgated thereunder. The Company has filed with
the Ohio Division of Financial Institutions (the "Division") an application for
approval of ________________________.
(d) No order has been issued by the Commission, the OTS or the Division
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 Bank, pending or threatened.
(e) 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, the Mergers or the Holding Company
Application pursuant to the Conversion Regulations, the HOLA, or any other
applicable statute or regulation.
(f) At the time of their use, the Proxy Statements and any other proxy
solicitation materials will comply 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 Company and the Bank 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, all
required authorizations of the OTS for use in final form will have been
received.
(g) The Bank has filed with the OTS applications for merger (the
"Merger Application") pursuant to Section 1828(c) of the Federal Deposit
Insurance Act ("FDIA"), the provisions of the HOLA and the regulations
promulgated thereunder with respect to the Mergers. At the date of such
approval, the Merger Application complied in all material respects with the
applicable provisions of the FDIA, the HOLA and the regulations promulgated
thereunder.
(h) At the time of their use, the Proxy Statements 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, all required
Page 8
authorizations of the OTS for use in final form will have been received.
(i) 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 Bank for use in connection with the Offerings.
(j) At the Closing Time referred to in Section 2, the Company and the
Bank 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 Bank by the OTS, the FDIC, the Division 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 and the Bank will have completed the conditions
precedent to the Mergers in accordance with the HH Merger Agreement and the
Oakley Merger Agreement, the 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 Mergers imposed
upon the Company or the Bank by the OTS, the Division, the FDIC or any other
regulatory authority, other than those which the regulatory authority permits to
be completed after the effective time of the Mergers.
(k) RP Financial, Inc., which prepared the valuation of the Bank as
part of the Conversion, has advised the Company that they satisfy all
requirements for an appraiser set forth in the Conversion Regulations.
(l) The accountants who certified the financial statements and
supporting schedules of the Bank included in the Registration Statement have
advised the 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, the Bank and any subsidiary of the Bank, independent
certified public accountants as required by the 1933 Act and the 1933 Act
Regulations.
(m) 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 the Bank, Oakley, and Harvest Home and its
consolidated subsidiaries 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.
(n) 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, the Bank, Oakley, or
Harvest Home and its subsidiaries, whether or not arising in the
Page 9
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, the Bank, Oakley, or Harvest Home or any of its
subsidiaries, other than those in the ordinary course of business, which are
material with respect to the Company, the Bank, Oakley and Harvest Home and its
subsidiaries considered as one enterprise.
(o) 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.
(p) 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.
(q) The Bank, as of the date hereof, is an Ohio-chartered savings
and loan association in mutual form and upon consummation of the Conversion
will be a federally chartered savings bank in stock form, in both instances
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 and the Bank 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 Holding Company Application, the Conversion
Application and the Merger 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 and the Bank considered as one enterprise;
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 in
compliance therewith; neither the Company nor the Bank 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
Page 10
affairs of the Company and the Bank considered as one enterprise; and the
Bank is in good standing under the laws of the Ohio 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 and the Bank considered as one
enterprise.
(r) The deposit accounts of the Bank are insured by the FDIC and upon
consummation of the Conversion, the liquidation account for the benefit of the
Bank's and Oakley's eligible account holders and supplemental eligible account
holders will be duly established in accordance with the requirements of the
Conversion Regulations.
(s) No shares of Bank 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 Bank 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.
(t) The Company has no subsidiaries other than the Bank, and the Bank
has no subsidiaries.
(u) The Company and the Bank 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 Bank, 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.
(v) 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 Bank 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 and the Bank taken as a whole.
(w) 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 and Exchange Shares, except for the
approval of the OTS of the Mergers under the provisions of the FDIA and the
HOLA, the approval of the Division, the declaration of effectiveness of the
Registration Statement and any required post-effective amendment to the
Registration Statement by the Commission and approval thereof, if necessary, 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.
Page 11
(x) The Company is not in violation of its Certificate of Incorporation
and Bylaws, the Bank is not in violation of its Articles of Incorporation,
Constitution and Bylaws, and the Bank will not be in violation of its charter or
bylaws in stock form upon consummation of the Conversion; and neither the
Company nor the Bank 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 or the Bank 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
the Bank 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 and the Bank.
(y) 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 or the Bank pursuant to any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company or the Bank is a
party or by which either of them may be bound, or to which any of the property
or assets of the Company or the Bank 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 and the Bank considered as one enterprise; nor will such action result
in any violation of the provisions of the charter or bylaws of the Company or
the Articles of Incorporation, Constitution and Bylaws of the Bank; 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 Bank 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 and the Bank considered as one enterprise.
(z) No labor dispute with the employees of the Company or the Bank
exists or, to the knowledge of the Company or the Bank, is imminent.
(aa) The Company, the Bank amd Oakley have good and marketable title to
all properties and assets for which ownership is material to the business of the
Company, the Bank and Oakley 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, the Bank and Oakley
considered as one enterprise; and all of the leases and subleases material to
the business of the Company, the Bank or Oakley under which the Company, the
Bank or Oakley hold properties, including those described in the Prospectus, are
valid and binding agreements of the Company,
Page 12
the Bank or Oakley, enforceable in accordance with their terms.
(bb) The Company and the Bank are not in violation of any directive
from the OTS, the Division or the FDIC to make any material change in the method
of conducting their respective businesses; the Bank, Oakley, and Harvest Home
and its subsidiaries have conducted and are conducting their 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, the Division or the
FDIC).
(cc) 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 Bank, threatened, against or affecting the
Company or the Bank 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 and the Bank 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 and the Bank
is a party or of which any of their properties 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 the Bank
which are required to be filed as exhibits to the Registration Statement or the
Conversion Application which have not been so filed.
(dd) The Bank has obtained an opinion of its counsel, Elias, Matz,
Xxxxxxx & Xxxxxxx, 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 Ohio 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 Bank nor the Company has
taken any action inconsistent therewith.
(ee) The Company is not required to be registered under the Investment
Company Act of 1940, as amended.
(ff) All of the loans represented as assets on the most recent
financial statements or selected financial information of the Bank and Oakley
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, the Bank and Oakley considered as one enterprise.
(gg) To the knowledge of the Company and the Bank, none of the Company,
the Bank
Page 13
or employees of the Bank has made any payment of funds of the Company or the
Bank 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.
(hh) The Company and the Bank 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.
(ii) Neither the Company, the Bank, or Oakley nor any properties owned
or operated by the Company, the Bank or Oakley 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, the Bank and Oakley 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, the Bank or Oakley, threatened, relating to
the liability of any property owned or operated by the Company, the Bank or
Oakley 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.
(jj) The Company, the Bank and Oakley 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.
(kk) The Company has received conditional approval to have the
Securities quoted on the Nasdaq National Market effective as of the Closing
Time.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF XXXX.
(a) Xxxx represents and warrants to the Company and the Bank that:
(1) Xxxxx, Xxxxxxxx & Xxxxx, Inc. is a corporation and is
validly existing in good standing under the laws of
the State of New York with full power and
Page 14
authority to provide the services to be furnished to
the Bank and the Company hereunder.
(2) 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 Xxxx, and this Agreement has
been duly and validly executed and delivered by Xxxx
and is the legal, valid and binding agreement of Xxxx,
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.
(3) Each of Xxxx 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.
(4) No approval of any regulatory or supervisory or other
public authority is required in connection with Xxxx'x
execution and delivery of this Agreement, except as
may have been received.
(5) 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
Xxxx, pending or threatened, which might materially
adversely affect Xxxx'x performance under this
Agreement.
SECTION 5.1 COVENANTS OF THE COMPANY AND THE BANK. The Company and the
Bank hereby jointly and severally covenant with Xxxx 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 Xxxx and its counsel an opportunity to
review such amendment or supplement or file any amendment or supplement to which
amendment or supplement Xxxx or its counsel shall reasonably object.
(b) The Bank 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 Xxxx and its counsel an opportunity to review such
amendment or supplement or file any amendment or supplement to which amendment
or supplement Xxxx or its counsel shall reasonably object.
Page 15
(c) The Company will not, at any time before the Holding Company
Application is approved by the OTS, file any amendment or supplement to such
Holding Company Application without providing Xxxx and its counsel an
opportunity to review such amendment or supplement or file any amendment or
supplement to which amendment or supplement Xxxx or its counsel shall reasonably
object.
(d) The Company and the Bank will use their best efforts to cause the
Registration Statement and any post-effective amendment to the Registration
Statement to be declared effective by the Commission and any 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 Xxxx: (i)
when the Registration Statement, as amended, has become effective; (ii) when the
Conversion Application, as amended, has been approved by the OTS; (iii) when the
Holding Company Application, as amended, has been approved by the OTS; (iv) 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;
(v) 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, the Holding Company Application or for additional information; (vi)
the issuance by the Commission or the OTS or any other governmental. entity of
any order or other action suspending the Offering or the use of the Registration
Statement or the Prospectus or any other filing of the Company or the Bank under
the Conversion Regulations, or other applicable law, or the threat of any such
action; (vii) 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 Holding Company Application, or of the initiation or
threat of initiation or threat of any proceedings for any such purpose; or
(viii) of the occurrence of any event mentioned in paragraph (h) below. The
Company and the Bank 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.
(e) The Company and the Bank will deliver to Xxxx and to its counsel
two conformed copies of the Registration Statement, the Conversion Application,
the Holding Company Application and Merger Application, as originally filed and
of each amendment or supplement thereto, including all exhibits. Further, the
Company and the Bank will deliver such additional copies of the foregoing
documents to counsel to Xxxx as may be required for any NASD filings.
(f) The Company and the Bank will furnish to Xxxx, 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 Xxxx 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 Xxxx to use the Prospectus (as amended or
supplemented, if amended or
Page 16
supplemented) in any lawful manner contemplated by the Plan in connection with
the sale of the Shares by Xxxx.
(g) The Company and the Bank will prepare and file such amendments or
supplements to the Merger Application as may be appropriate in order to receive
all necessary regulatory approvals of the Mergers. The Company will notify Xxxx
immediately and confirm notice in writing of the receipt of any comments from
the OTS with respect to the transactions described in the Merger Application, of
any request for supplemental information to the Merger Application, or issuance
of any order regarding the Mergers or the initiation of any proceedings
regarding the Mergers.
(h) The Company and the Bank will comply with any and all material
terms, conditions, requirements and provisions with respect to the Conversion
and Mergers 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 Bank 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 1993 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.
(i) 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 or the Bank shall occur, as a result of which it is necessary or
appropriate, in the opinion of counsel for the Company and the Bank 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 Bank will, at their expense, prepare and file with the
Commission and the OTS, and furnish to Xxxx 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 Xxxx 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 Bank each
will timely furnish to Xxxx such information with respect to itself as Xxxx may
from time to time reasonably request.
(j) At the Closing Time referred to in Section 2, the Plan and Merger
Agreements will have been adopted by the Board of Directors of the Company and
the Board of Directors of the Bank and the Oakley Merger will have been
completed, and the offer and sale of the Shares
Page 17
and exchange of Exchange Shares will have been conducted in all material
respects in accordance with the Plan, Merger Agreements, the Conversion
Regulations, and all other applicable laws, regulations, decisions and orders,
including all terms, conditions, requirements and provisions precedent to the
Conversion and Merger imposed upon the Company or the Bank by the Commission,
the OTS, or any other regulatory authority and in the manner described in the
Prospectus.
(k) Upon completion of the sale by the Company of the Shares
contemplated by the Prospectus, (i) the Bank will be converted pursuant to the
Plan to a federally chartered stock savings bank, (ii) all of the authorized and
outstanding capital stock of the Bank will be owned by the Company, and (iii)
the Company will have no direct subsidiaries other than the Bank. 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 Bank 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.
(l) The Company and the Bank will take all necessary actions, in
cooperation with Xxxx, and furnish to whomever Xxxx 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 Xxxx and the Company and the
Bank 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.
(m) 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.
(n) The Company and the Bank will not sell or issue, contract to sell
or otherwise dispose of, for a period of 180 days after the Closing Date,
without Xxxx'x 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
(o) The Company shall register its Common Stock under Section 12(g) of
the 1934 Act prior to the consummation of the Offering pursuant to the Plan and
shall request that such registration be effective no later than upon completion
of the Conversion. The Company shall
Page 18
maintain the effectiveness of such registration for not less than three years or
such shorter period as may be required by the OTS.
(p) 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).
(q) During the period of three years from the date hereof, the Company
will furnish to Xxxx: (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 Bank as
Xxxx may reasonably request; and (iii) from time to time, such other
nonconfidential information concerning the Company or the Bank as Xxxx may
reasonably request.
(r) The Company and the Bank will use the net proceeds from the sale
of the Shares in the manner set forth in the Prospectus under the caption "How
Our Net Proceeds Will Be Used."
(s) 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 Bank will distribute any prospectus or other offering
material in connection with the offer and sale of the Shares.
(t) The Company will use its best efforts to (i) encourage and assist
three market makers to establish and maintain a market for the Shares and (ii)
list the Shares on a national or regional securities exchange or on the Nasdaq
National Market of the Nasdaq Stock Market effective on or prior to the Closing
Date.
(u) The Bank will maintain appropriate arrangements for depositing all
funds received from persons mailing subscriptions for or orders to purchase
Shares in the 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 the Bank's obligation to refund payments received from persons
subscribing for or ordering Shares in the Offering in accordance with the
Page 19
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. The Bank will
maintain such records of all funds received to permit the funds of each
subscriber to be separately insured by the FDIC (to the maximum extent
allowable) and to enable the Bank 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.
(v) Prior to the Closing Date, the Merger Application shall have been
approved and all applicable waiting periods shall have expired, the Holding
Company Application shall have been approved by the OTS. The Company will
promptly take all necessary action to register as a savings and loan holding
company under the HOLA within 90 days of the Closing Date.
(w) The Company and the Bank will take such actions and furnish such
information as are reasonably requested by Xxxx in order for Xxxx to ensure
compliance with the NASD's "Interpretation Relating to Free Riding and
Withholding."
(x) The Bank will not amend the Plan without notifying Xxxx prior
thereto.
(y) The Company shall assist Xxxx, if necessary, in connection with
the allocation of the Shares in the event of an oversubscription and shall
provide Xxxx with any information necessary in allocating the Shares in such
event.
(z) Prior to the Closing Date, the Company and the Bank will inform
Xxxx 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 XXXX. Xxxx hereby covenants with the
Company and the Bank as follows:
(a) During the period when the Prospectus is delivered, Xxxx 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) Xxxx 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.
(c) Xxxx shall use its best efforts to assist the Company in obtaining
at least three market makers for the shares of Common Stock.
Page 20
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 Bank jointly and severally agree to pay or reimburse Xxxx 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 Bank'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.
Xxxx shall not request reimbursement for out-of-pocket expenses, including costs
of legal counsel, travel, meals and lodging, photocopying, telephone, facsimile
and couriers. In the event the Company is unable to sell a minimum of 1,190,000
Shares or the Conversion is terminated or otherwise abandoned, the Company and
the Bank shall reimburse Xxxx in accordance with Section 2 hereof.
SECTION 7. CONDITIONS TO XXXX'X OBLIGATIONS. Xxxx'x obligations
hereunder, as to the Shares to be issued at the Closing Date, are subject, to
the extent not waived by Xxxx, to the condition that all representations and
warranties of the Company and the Bank herein are, at and as of the commencement
of the Offering and at and as of the Closing Date, true and correct in all
material respects, the condition that the Company and the Bank 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 Bank shall have conducted
the Conversion and Mergers in all material respects in accordance with the Plan,
Merger Agreements, 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 Xxxx'x 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 Bank's knowledge threatened by the Commission, the
OTS, or any other federal or state authority.
(c) At the Closing Date, Xxxx shall have received to following:
(1) The favorable opinion, dated as of the Closing Date
and addressed to Xxxx and for its benefit, of Elias,
Matz, Xxxxxxx & Xxxxxxx, special counsel for
Page 21
the Company and the Bank, 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 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 Bank is organized and is validly
existing as an Ohio-chartered savings and
loan association under the laws of the
State of Ohio and the United States, in
mutual form of organization and upon the
Conversion will become a duly organized and
validly existing federally chartered
savings bank 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. All of the
outstanding capital stock of the Bank will
be duly authorized and, upon payment
therefor, will be validly issued, fully
paid and non- assessable and, to the best
of such counsel's knowledge, will be owned
by the Company, free and clear of any
liens, encumbrances, claims or other
restrictions.
(iii) The Bank is a member of the FHLB of
Cincinnati. The Bank 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 "Our
Conversion and Our Mergers -- Liquidation
Rights of Certain Depositors" 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 set forth in the Prospectus under the
caption
Page 22
"Capitalization," and except for shares
issued upon incorporation of the Company,
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 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.
(v) The Bank has no subsidiaries.
(vi) The OTS has duly approved the Holding
Company Application and, to the best of
such counsel's knowledge, no action is
pending or threatened respecting the
Holding Company Application or the
acquisition by the Company of all of the
Bank's issued and outstanding capital
stock; the Holding Company Application
complies as to form in all material
respects with the BHCA.
(vii) 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.
(viii) 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 Bank; and the Agreement is a valid
and binding obligation of the Company and
the Bank, enforceable in accordance with
its terms, except as the enforceability
thereof may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium,
Page 23
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
banks 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 Bank 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).
(ix) The Plan has been duly adopted by the
required vote of the directors of the
Company and the Directors of the Bank and,
based upon the certificate of the inspector
of election, by the depositors and
borrowers of the Bank and Oakley.
(x) Subject to the satisfaction of the
conditions to the OTS's approval of the
Conversion and the Division's approval of
________, the Company and the Bank are not
required to receive any further approval,
authorization, consent or other order of,
register with, or submit a notice to any
other 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 bank holding
company.
(xi) 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,
Page 24
proceedings therefor pending or threatened
by the Commission.
(xii) 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.
(xiii) 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.
(xiv) 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.
(xv) To the best of such counsel's knowledge the
Company and the Bank 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 Bank by the OTS and the Division 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.
(xvi) To the best of such counsel's knowledge,
the Company and the Bank have obtained all
material licenses, permits and other
governmental authorizations currently
required under the HOLA and Ohio State law
and all applicable rules and regulations
promulgated thereunder for the conduct of
their businesses and to
Page 25
the best of such counsel's knowledge 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 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 Bank and the
Company, taken as a whole.
(xvii) The Company's certificate of incorporation
and bylaws comply in all material respects
with the Delaware General Corporate Law.
The Bank's articles of incorporation,
constitution and bylaws in mutual form
comply in all material respects with the
laws of the State of Ohio and the
regulations of the Division, and, upon the
completion of the Conversion the Bank's
charter and bylaws will comply in all
material respects with the laws of the
United States and the regulations of the
OTS.
(xviii) To the best of such counsel's knowledge,
neither the Company nor the Bank is in
violation of any directive from the OTS or
the Division to make any material change in
the method of conducting its respective
business.
(xix) The information in the Prospectus under the
captions "Regulation," "Our Conversion and
Our Mergers with Oakley and Harvest Home
Financial," "Restrictions on Acquisition of
Peoples Community Bancorp and People's
Savings" and "Description of Our 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 "Our Conversion
and Our Mergers with Oakley and Harvest
Home Financial" 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 "Our
Conversion and Our Mergers with Oakley and
Harvest Home Financial-- Tax Aspects of Our
Conversion and the Mergers" has been
reviewed by such counsel and constitutes an
accurate summary of the opinion rendered by
such counsel to the Company and the Bank
Page 26
with respect to such matters subject to the
qualifications and limitations noted
therein.
(xx) The Bank has the power and authority to
consummate the transactions contemplated by
the Merger Agreements.
(xxi) The Merger Agreements have been duly
authorized, executed and delivered by the
Bank and constitute the valid and binding
obligation of the Bank enforceable in
accordance with their terms subject to (i)
applicable bankruptcy, insolvency and
similar laws affecting creditors' rights
and remedies generally or the rights of
creditors of federal savings banks and Ohio
savings and loan 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.
(xxii) To the best knowledge of such counsel all
corporate acts and other proceedings
required to be taken by or on the part of
the Bank to consummate the transactions
contemplated by the Merger Agreements have
been properly taken; neither the execution
and delivery of the Merger Agreements, 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
Articles of Incorporation, Constitution or
Bylaws of the Bank in the mutual form or
the Charter and Bylaws of the Bank in stock
form.
(xxiii) 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 Merger
Agreements or which seek or threaten to
restrain, enjoin or prohibit or to obtain
substantial damages in connection with the
consummation of such transactions.
(xxiv) All regulatory and governmental approvals
and consents which are necessary to be
obtained by the Bank to permit the
execution, delivery and performance of the
Merger Agreements have been obtained.
(xxv) All conditions precedent to consummation of
the Mergers have
Page 27
been satisfied, including but not limited
to those referenced in the Merger
Agreements, all statutory waiting periods
with respect to all regulatory and
governmental approvals of the transactions
contemplated by the Merger Agreements 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 Time,
of Xxxxxx, Xxxxxxxx & Xxxxxx, counsel to Harvest Home
and Harvest Home Savings Bank, concerning the
following matters:
(i) Harvest Home is a corporation duly
organized, validly existing and in good
standing under the laws of the State of
Delaware, and Harvest Home Savings Bank is
a federally chartered stock savings bank
duly organized and in existence under the
laws of the United States of America.
(ii) Harvest Home and Harvest Home Savings Bank
have the power and authority to carry on
their business as described in the
Prospectus and to consummate the
transactions contemplated by the HH Merger
Agreement.
(iii) The HH Merger Agreement has been duly
approved, authorized, executed and
delivered by Harvest Home, the HH Merger
Agreement and the transactions contemplated
thereby have been approved by the requisite
vote of Harvest Home's shareholders, and
the HH Merger Agreement constitutes the
valid and binding obligation of Harvest
Home enforceable in accordance with its
terms subject to applicable bankruptcy,
insolvency and similar laws affecting
creditors rights and remedies generally and
subject, as to enforceability, to general
principles of equity, whether applied in a
court of law or a court of equity.
(iv) To the best knowledge of such counsel, all
actions required to be taken by or on the
part of Harvest Home, including the
adoption of the HH Merger Agreement by the
shareholders of Harvest Home, and the
necessary approvals, consents,
authorizations or notifications required to
be taken to consummate the transactions
contemplated by the HH Merger Agreement,
have been properly taken or obtained;
neither the execution and delivery of the
HH Merger Agreement nor the consummation of
the transactions contemplated hereby and
thereby, with or without the giving of
notice or the lapse of time, or both, will
(i) violate any provision
Page 28
of the Certificate, Charter or Bylaws; or
(ii) to the knowledge of such counsel,
violate, conflict with, result in the
material breach or termination of,
constitute a material default under,
accelerate the performance required by, or
result in the creation of any material
lien, charge or encumbrance upon any of the
properties or assets of Harvest Home or
Harvest Home Savings Bank pursuant to any
indenture, mortgage, deed of trust, or
other agreement or instrument to which
Harvest Home or Harvest Home Savings Bank
are a party or by which it or any of their
properties or assets may be bound, or
violate any statute, rule or regulation
applicable to Harvest Home or Harvest Home
Savings Bank, which would have a material
adverse effect on the financial condition,
assets, liabilities, or business of Harvest
Home or Harvest Home Savings Bank; to the
knowledge of such counsel, no consent,
approval, authorization, order,
registration or qualification of or with
any court, regulatory authority or other
governmental body other than as
specifically contemplated by the HH Merger
Agreement is required for the consummation
by Harvest Home or Harvest Home Savings
Bank of the transactions contemplated by
the HH Merger Agreement.
(v) To the best knowledge of such counsel,
there are no actions, suits, proceedings,
or investigations of any nature pending or
threatened that challenge the validity or
legality of the transactions contemplated
by the HH Merger Agreement which seek or
threaten to restrain, enjoin or prohibit
(or obtain substantial damages in
connection with) the consummation of such
transactions.
(vi) To the best knowledge of such counsel,
there is no litigation, appraisal or other
proceeding or governmental investigation
pending or threatened against or relating
to the business or property of Harvest Home
or Harvest Home Savings Bank which would
have a materially adverse effect on the
consolidated financial condition of Harvest
Home, or any legal impediment to the
continued operation of the properties and
business of Harvest Home or Harvest Home
Savings Bank in the ordinary course after
the consummation of the transactions
contemplated by the HH Merger Agreement.
(vii) All conditions precedent to consummation of
the Harvest Home Merger have been
satisfied, all statutory waiting periods
with respect to all regulatory and
governmental approvals of the
Page 29
Harvest Home Merger have expired and there
are no facts or circumstances which would
preclude the immediate consummation of the
Harvest Home Merger.
(3) The favorable opinion, dated as of the Closing Time,
of Silver, Xxxxxxxx & Xxxx, LLP, counsel to Oakley,
concerning the following matters:
(i) Oakley is organized and validly existing as
an Ohio-chartered savings and loan
association under the laws of the State of
Ohio.
(ii) Oakley has the power and authority to carry
on its business as described in the
Prospectus and to consummate the
transactions contemplated by the Oakley
Merger Agreement.
(iii) The Oakley Merger Agreement has been duly
approved, authorized, executed and
delivered by Oakley and the Oakley Merger
Agreement constitutes the valid and binding
obligation of Oakley enforceable in
accordance with its terms subject to
applicable bankruptcy, insolvency and
similar laws affecting creditors rights and
remedies generally and subject, as to
enforceability, to general principles of
equity, whether applied in a court of law
or a court of equity.
(iv) To the best knowledge of such counsel, all
actions required to be taken by or on the
part of Oakley, and the necessary
approvals, consents, authorizations or
notifications required to be taken to
consummate the transactions contemplated by
the Oakley Merger Agreement, have been
properly taken or obtained; the Plan has
been duly adopted by the required vote of
the directors and members of Oakley;
neither the execution and delivery of the
Oakley Merger Agreement nor the
consummation of the transactions
contemplated hereby and thereby, with or
without the giving of notice or the lapse
of time, or both, will (i) violate any
provision of Oakley's Articles of
Incorporation, Constitution or Bylaws; or
(ii) to the knowledge of such counsel,
violate, conflict with, result in the
material breach or termination of,
constitute a material default under,
accelerate the performance required by, or
result in the creation of any material
lien, charge or encumbrance upon any of the
properties or assets of Oakley pursuant to
any indenture, mortgage, deed of trust, or
other agreement or instrument to which
Oakley is a party or by which it or any of
its properties or assets may be bound, or
violate any statute, rule or regulation
applicable to Oakley, which would have a
material adverse effect on the financial
condition, assets, liabilities, or
Page 30
business of Oakley; to the knowledge of
such counsel, no consent, approval,
authorization, order, registration or
qualification of or with any court,
regulatory authority or other governmental
body other than as specifically
contemplated by the Oakley Merger Agreement
is required for the consummation by Oakley
of the transactions contemplated by the
Oakley Merger Agreement.
(v) To the best knowledge of such counsel,
there are no actions, suits, proceedings,
or investigations of any nature pending or
threatened that challenge the validity or
legality of the transactions contemplated
by the Oakley Merger Agreement which seek
or threaten to restrain, enjoin or prohibit
(or obtain substantial damages in
connection with) the consummation of such
transactions.
(vi) To the best knowledge of such counsel,
there is no litigation, appraisal or other
proceeding or governmental investigation
pending or threatened against or relating
to the business or property of Oakley that
would have a materially adverse effect on
the financial condition of Oakley, or any
legal impediment to the continued operation
of the properties and business of Oakley in
the ordinary course after the consummation
of the transactions contemplated by the
Oakley Merger Agreement.
(vii) All conditions precedent to consummation of
the Oakley Merger have been satisfied, all
statutory waiting periods with respect to
all regulatory and governmental approvals
of the Oakley Merger have expired and there
are no facts or circumstances which would
preclude the immediate consummation of the
Oakley Merger.
(4) The favorable opinion, dated as of the Closing Date,
of Xxxx Xxxxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C., Xxxx'x
counsel, with respect to such matters as Xxxx may
reasonably require. Such opinion may rely upon the
opinions of counsel to the Company and the Bank, and
as to matters of fact, upon certificates of officers
and directors of the Company and the Bank delivered
pursuant hereto or as such counsel shall reasonably
request.
(5) In giving their opinions required by subsections 1, 2,
and 3, respectively, of this Section, Elias, Matz,
Xxxxxxx & Xxxxxxx L.L.P., Xxxxxx, Xxxxxxxx & Xxxxxx,
and Silver, Xxxxxxxx & Taff, 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
Page 31
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, 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, and Xxxx Xxxxxx Xxxxxx Xxxxxxxx & Xxxxxx
may also rely on the opinion of Elias, Matz, Xxxxxxx &
Xxxxxxx L.L.P.
(6) In giving their opinions counsel may state that it has
not independently verified the information with
respect to the Company, the Bank, Harvest Home and
Harvest Home Savings Bank 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,
the Bank, Harvest Home, Harvest Home Savings Bank or
the firm giving the opinion shall have received a copy
of such proceedings, order, stop order or action. If
so stated, the opinions of counsel may be governed by
the provisions of The Legal Opinion Accord (the
"Accord") of the American Bar Association Section of
Business Law (1991). 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."
(d) At the Closing Date, Xxxx shall have received the Officers'
Certificates attached as Exhibit A. The Company will take all action necessary
to cause Harvest Home and Harvest Home Savings Bank Savings to provide such
Certificates.
(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,
the Bank, Oakley (with the Bank and Oakley considered as one enterprise
following the Oakley Merger which shall occur immediately prior to the Closing
Time), Harvest Home, or Harvest Home Savings Bank, whether or not arising in the
ordinary course of business, and the Agent shall have received a certificate of
the President and Chief Executive Officer of the Company and the Bank, and the
officer who shall be the Chief Financial
Page 32
Officer of the Company and the Bank following the Oakley Merger, dated as of
Closing Time, to the effect that: (i) there has been no such material adverse
change; (ii) 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; (iii) since the date the Prospectus
became authorized for final use, no event has occurred, which should have been
set forth in an amendment or supplement to the Prospectus which has not been so
set forth, and the conditions set forth in this Section 7 have been satisfied;
(iv) there has been no material transaction entered into by the Company or the
Bank from the latest date as of which the financial condition of the Company or
the Bank is set forth in the Registration Statement and the Prospectus other
than the Oakley Merger and other transactions referred to or contemplated
therein and transactions in the ordinary course of business and consistent with
past practices; (v) neither the Company, the Bank nor Oakley have received from
the OTS any direction (oral or written) to make any material change in the
method of conducting their businesses with which they have 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, the Bank or Oakley; (vi) the representations and
warranties in Section 4 hereof are true and correct with the same force and
effect as though expressly made at and as of the Closing Time except that the
Bank and Oakley shall be considered as one entity following the Oakley Merger;
(vii) the Company and the Bank 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; (viii)
no stop order suspending the effectiveness of the Registration Statement is
pending or, to the best knowledge of the Company or the Bank, threatened by the
Commission or any state authority; (ix) no order suspending the Offering, the
Conversion, the acquisition of all of the shares of the Bank by the Company, or
the authorization for final use of or 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 Bank, threatened by the OTS, the Commission or any other
federal or state authority; and (x) to the best knowledge of the Company or the
Bank, no person has sought to obtain review of the final action of the OTS
approving the Plan.
(f) Prior to and at the Closing Date: (i) in the reasonable opinion of
Xxxx, there shall have been no material adverse change in the financial
condition, or in the earnings or business of the Bank or Oakley independently,
or of the Company, the Bank and Oakley 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 Bank 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
Xxxx) or which materially and adversely would affect the business, operations or
financial condition or income of the Company and the Bank considered as one
enterprise; (iv) the Company and the Bank shall not have been in material
default (nor shall an event have occurred which, with notice or lapse of time or
both,
Page 33
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 Bank, threatened against the Company or the Bank
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 and the Bank 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 Xxxx shall have requested and as agreed to by the Company and
the Bank.
(g) At the time of the execution of this Agreement, the Agent shall
have received from Xxxxx Xxxxxxxx LLP, independent auditors, the following:
(1) 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 and the Bank, and any subsidiary 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
financial statements and 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 Bank 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
AND OTHER DATA OF PEOPLE'S SAVINGS" 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 Bank or any decrease in total deposits or
net worth of the Bank, in each case as compared with
the amounts shown in the September 30, 1999 balance
sheet included in the Registration Statement or (D)
during the period from September 30, 1999 to a
specified date not more than five days prior to the
date of this
Page 34
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
Bank, 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 or the Bank identified in such letter.
(2) 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
Oakley, and any subsidiary 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 financial statements and
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
Oakley 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 AND OTHER DATA OF OAKLEY" 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 Oakley or any decrease in total deposits or
net worth of Oakley, in each case as compared with the
amounts shown in the September 30, 1999 balance sheet
included in the Registration Statement or (D) during
the period from September 30,
Page 35
1999 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 Oakley, 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
or the Bank identified in such letter.
(3) 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
Harvest Home and Harvest Home Savings Bank, and any
subsidiary 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
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 consolidated financial statements and
supporting schedules of Harvest Home 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 consolidated financial statements included in
the Registration Statement and the Prospectus, (B) the
unaudited amounts set forth under "SELECTED
CONSOLIDATED FINANCIAL AND OTHER DATA OF HARVEST HOME
FINANCIAL" 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
Page 36
short-term debt of Harvest Home or any decrease in
total deposits or net worth of the Harvest Home, in
each case as compared with the amounts shown in the
September 30, 1999 balance sheet included in the
Registration Statement or (D) during the period from
September 30, 1999 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 Harvest Home, 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 Harvest
Home or Harvest Home Savings Bank identified in such
letter.
(h) At Closing Time, the Agent shall have received from Xxxxx
Xxxxxxxx, LLP letters, dated as of Closing Time, to the effect that Xxxxx
Xxxxxxxx, LLP reaffirms the statements made in the letters furnished pursuant to
subsection(g) of this Section, except that the specified date referred to shall
be a date not more than three days prior to Closing Time.
(i) All conditions precedent to consummation of the Mergers have been
satisfied, including but not limited to those referenced in the Merger
Agreements, all statutory waiting periods with respect to all regulatory and
governmental approvals of the Mergers have expired and there are no facts or
circumstances which would preclude the immediate consummation of the Mergers.
(j) At Closing Time, the Securities shall have been approved for
listing on the Nasdaq Stock Market upon notice of issuance.
(k) 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.
(l) At any time prior to Closing Time, (i) there shall not have
occurred any material
Page 37
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; (iii) a general moratorium
on the operations of commercial banks or federal savings associations or a
general moratorium on the withdrawal of deposits from commercial banks or
federal savings associations shall not have been declared by federal or Ohio
authorities; or (iv) there shall not have been a material decline in the price
of equity or debt securities if the effect of such a decline, in Xxxx'x
reasonable judgment, makes it impracticable or inadvisable to proceed with the
Offering or the delivery of the shares on the terms and in the manner
contemplated in the Registration Statement and Prospectus.
(m) At the Closing Date, Xxxx shall receive a letter from R.P.
Financial dated the date thereof and addressed to counsel for Xxxx, (i)
confirming that said firm is independent of the Company and the Bank 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 Bank
expressed in its Appraisal dated as of __________, and most recently updated,
remains in effect and is confirmed..
(n) The Company and the Bank 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.
(o) At or prior to the Closing Date, Xxxx 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 certificate from the OTS
evidencing the existence of the Bank; (iv) certificates of good standing from
the States of Ohio and Delaware evidencing the good standing of the Company; (v)
a certificate from the FDIC evidencing the Bank's insurance of accounts; (vi) a
certificate of the FHLB-Cincinnati evidencing the Bank's membership thereof,
(vii) a copy of the letter from the OTS approving the Company's Holding Company
Application.
(p) As soon as available after the Closing Date, Xxxx shall receive,
upon request, a copy of the Bank's federal stock charter.
SECTION 8. INDEMNIFICATION.
Page 38
(a) The Company and the Bank jointly and severally agree to indemnify
and hold harmless Xxxx, its officers, directors, agents, servants and employees
and each person, if any, who controls Xxxx 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 Xxxx or
any of them may suffer or to which Xxxx and any such persons may become subject
under all applicable federal or state laws or otherwise, and to promptly
reimburse Xxxx and any such persons upon written demand for any expense
(including reasonable and documented fees and disbursements of counsel) incurred
by Xxxx 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),
the Holding Company Application or any blue sky application or other instrument
or document executed by the Company or the Bank or based upon written
information supplied by the Company or the Bank 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 Bank with their consent or based upon
written or oral information furnished by or on behalf of the Company or the
Bank, 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 Xxxx'x 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
Bank by Xxxx regarding Xxxx for use in the Prospectus contained in the
Conversion Application under the
Page 39
caption "The Offering -- 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) Xxxx agrees to indemnify and hold harmless the Company and the
Bank, their directors and officers and each person, if any, who controls the
Company or the Bank 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 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 Bank, 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 an 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 Xxxx'x 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 Bank by Xxxx
regarding Xxxx for use in the Prospectus contained in the Conversion Application
under the caption "The Offering -- 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 assume 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
Page 40
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 Bank 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 Xxxx or its officers, directors or
controlling persons, agents or employees or by or on behalf of the Company or
the Bank or any officers, directors or controlling persons, agents or employees
of the Company or the Bank; (ii) delivery of and payment hereunder for the
Shares; or (iii) any termination of this Agreement.
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 Bank or Xxxx, the Company, the
Bank and Xxxx 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 Bank or Xxxx from persons other than the other party
thereto, who may also be liable for contribution) in such proportion so that
Xxxx is responsible for that portion represented by the percentage that the fees
paid to Xxxx 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 Offering and the Company and the Bank 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 Bank
on the one hand and Xxxx 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 Bank on the one hand and Xxxx on the
other from the 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 Bank
on the one hand or Xxxx 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 Bank and Xxxx 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
Page 41
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 Xxxx shall not
be required to contribute any amount which in the aggregate exceeds the amount
paid (excluding reimbursable expenses) to Xxxx under this Agreement. It is
understood that the above stated limitation on Xxxx'x liability for contribution
is essential to Xxxx and that Xxxx 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 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not found guilty of such fraudulent misrepresentation. The obligations
of the Company and the Bank under this Section 9 and under Section 8 shall be in
addition to any liability which the Company and the Bank may otherwise have. For
purposes of this Section 9, each of Xxxx'x, the Company's or the Bank's officers
and directors and each person, if any, who controls Xxxx or the Company or the
Bank within the meaning of the 1933 Act and the 1934 Act shall have the same
rights to contribution as Xxxx, the Company or the Bank. 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.
SECTION 10. SURVIVAL OF AGREEMENTS REPRESENTATIONS AND INDEMNITIES. The
respective indemnities of the Company, the Bank and Xxxx and the representations
and warranties and other statements of the Company, the Bank and Xxxx 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 Xxxx, the Company, the Bank 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
Xxxx, tile Company, the Bank, and any such controlling person shall be entitled
to the benefit of the respective agreements, indemnities, warranties and
representations.
SECTION 11. TERMINATION. Xxxx 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
September 30, 2000, 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 Bank to each person who has subscribed for or
ordered any of the Shares tile 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 Bank as set forth in Sections 2(a) and (d), 6,
8 and 9 hereof
Page 42
(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 Xxxx'x obligations hereunder may be
cancelled by Xxxx by notifying the Company and the Bank 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 Xxxx elects to terminate this Agreement with respect to it as
provided in this Section, the Company and the Bank shall be notified promptly by
such Agent by telephone or telegram, confirmed by letter.
The Company and the Bank may terminate this Agreement with respect to
Xxxx in the event Xxxx 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 Bank have provided Xxxx with notice of such
breach.
This Agreement may also be terminated by mutual written consent of the
parties hereto.
SECTION 12. NOTICES. All communications hereunder, except as herein
otherwise specifically provided, shall be mailed in writing and if sent to Xxxx
shall be mailed, delivered or telegraphed and confirmed to Xxxxxxx Xxxx &
Company, 000 Xxxxxxxxx, Xxxxxx, Xxxx 00000-0000, Attention: Xxxxxx X. Xxxxxx,
III (with a copy to Xxxx Xxxxxx Xxxxxx Xxxxxxxx & Xxxxxx, 0000 Xxxxxxxxx Xxxxxx,
X.X., Xxxxxxxxxx, X.X. 00000, Attention: Xxxxxxx X. Xxxxxx, Esq.) and, if sent
to the Company and the Bank, shall be mailed, delivered or telegraphed and
confirmed to the Company and the Bank at Peoples Community Bancorp, Inc., 00 X.
Xxxxxxxx, Xxxxxxx, Xxxx 00000, Attention Xxxxx X. Xxxxxxxx, Chief Executive
Officer (with a copy to Elias, Matz, Xxxxxxx & Xxxxxxx, 000 00xx Xxxxxx, X.X.,
Xxxxxxxxxx, X.X. 00000, Attention: Xxxxx X. Xxxxxxxx, Esq. or Xxxx X. Xxxxxxxxx.
Esq.).
SECTION 13. PARTIES. The Company and the Bank shall be entitled to act
and rely on any request, notice, consent, waiver or agreement purportedly given
on behalf of Xxxx when the same shall have been given by the undersigned. Xxxx
shall be entitled to act and rely on any request, notice, consent, waiver or
agreement purportedly given on behalf of the Company or the Bank, when the same
shall have been given by the undersigned or any other officer of the Company or
the Bank. This Agreement shall inure solely to the benefit of, and shall be
binding upon, Xxxx, the Company, the Bank, 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 hereto, 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.
Page 43
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 Xxxx and
the Company and the Bank. At the closing, the Company and the Bank shall deliver
to Xxxx in next day funds the commissions, fees and expenses due and owing to
Xxxx as set forth in Sections 2 and 6 hereof and the opinions and certificates
required hereby and other documents deemed reasonably necessary by Xxxx 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 New York.
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.
Page 44
If the foregoing correctly sets forth the arrangement among the
Company, the Bank and Xxxx, please indicate acceptance thereof in the
space provided below for that purpose, whereupon this letter and Xxxx'x
acceptance shall constitute a binding agreement.
Very truly yours
PEOPLES COMMUNITY BANCORP, INC. PEOPLES BUILDING, LOAN AND SAVINGS
COMPANY
------------------------------- -------------------------------
By: Xxxxx X. Xxxxxxxx By: Xxxxx X. Xxxxxxxx
President and President and
Chief Executive Officer Chief Executive Officer
Accepted as of the date first above written
XXXXXXX XXXX & COMPANY,
A DIVISION OF XXXXX, XXXXXXXX
& XXXXX, INC.
------------------------------
By: Xxxxxx X. Xxxxxx, III
Senior Vice President
Page 45
If the foregoing correctly sets forth the arrangement among the
Company, the Bank and Xxxx, please indicate acceptance thereof in the
space provided below for that purpose, whereupon this letter and Xxxx'x
acceptance shall constitute a binding agreement.
Very truly yours,
PEOPLES COMMUNITY BANCORP, INC. PEOPLES COMMUNITY BANK
------------------------------- -------------------------------
By: Xxxxx X. Xxxxxxxx By: Xxxxx X. Xxxxxxxx
President and President and
Chief Executive Officer Chief Executive Officer
Accepted as of the date first above written
XXXXXXX XXXX & COMPANY,
A DIVISION OF XXXXX, XXXXXXXX
& XXXXX, INC.
------------------------------
By: Xxxxxx X. Xxxxxx, III
Senior Vice President
Page 46
EXHIBIT A
HARVEST HOME FINANCIAL CORP.
AND
HARVEST HOME SAVINGS BANK
OFFICER'S CERTIFICATE
The undersigned, Xxxx X. Rathcamp being the duly elected and serving
President of Harvest Home Financial Corp. ("Harvest Home"), a Delaware
corporation, and President, Secretary and Managing Officer of Harvest
Home Savings Bank, a federal savings bank and wholly-owned subsidiary
of Harvest Home, does hereby represent and warrant to Xxxxxxx Xxxx &
Company, that the representations and warranties contained in ARTICLE
III of the Agreement and Plan of Merger, dated September 30, 1999, by
and between Peoples Building, Loan and Savings Company and Harvest
Home, 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 Xxxxxxx Xxxx & Company, Peoples Community Bancorp, Inc. and
People's Building, Loan and Savings Company dated as of February ___,
2000 ("Agency Agreement"), and that Xxxxxxx Xxxx & Company 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 Merger Agreement.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this
_____ day of February 2000.
HARVEST HOME FINANCIAL CORP.
By:
-----------------------------------
Xxxx X. Xxxxxxxx
President
HARVEST HOME SAVINGS BANK
By:
-----------------------------------
Xxxx X. Xxxxxxxx
President and Managing Officer
