Exhibit 1.2
CCSB FINANCIAL CORP
629,000 to 851,000 Shares
(as may be increased to 978,650 shares)
Common Stock
($0.01 Par Value Per Share)
Purchase Price: $10.00 Per Share
SALES AGENCY AGREEMENT
_______________, 2002
Trident Securities, a Division of McDonald Investments, Inc.
0000 Xxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Dear Sirs:
CCSB Financial Corp, a Delaware corporation ("Company"), and Clay County
Savings and Loan Association (to be renamed, Clay County Savings Bank after the
conversion from mutual to stock form) (referred to herein as "Bank," in mutual
or stock form as the context may require), a federally chartered savings
association organized under the laws of the United States of America hereby
confirm, as of ____________, 2002, their respective agreements with Trident
Securities, a division of McDonald Investments, Inc. together with its
successors and assigns as contemplated in Section 13 hereof (collectively,
"Trident"), Trident being a broker-dealer registered with the Securities and
Exchange Commission ("Commission") and a member of the National Association of
Securities Dealers, Inc. ("NASD"), as follows:
1. Introduction. The Bank intends to convert from a federally chartered
mutual savings association to a federally chartered capital stock savings bank
as a wholly owned subsidiary of the Company (together with the Offerings, as
defined below, the issuance of shares of common stock of the Bank to the Company
and the incorporation of the Company, the "Conversion") pursuant to a plan of
conversion adopted by the Bank's Board of Directors on July 30, 2002 ("Plan").
In accordance with the Plan, the Company is offering shares of its common stock,
$0.01 par value per share ("Common Stock"), pursuant to nontransferable
subscription rights in a subscription offering ("Subscription Offering") to
certain depositors and borrowers of the Bank and to the Bank's tax-qualified
employee benefit plans (i.e., the Bank's Employee Stock Ownership Plan
("ESOP")). Any shares of the Common Stock not sold in the Subscription Offering
are being offered to the general public in a Community Offering ("Community
Offering"), with preference given to natural persons who are residents of Clay
County, Missouri ("Local Community") (the Subscription and Community Offerings
are sometimes referred to collectively as the "Subscription and Community
Offering"), subject to the right of the Company and the Bank, in their absolute
discretion, to reject orders in the
Community Offering in whole or in part. All shares of the Conversion Stock not
sold in the Subscription and Community Offerings will be offered to the general
public in a Syndicated Community Offering, subject to the right of the Company
and the Board, in their absolute discretion, to reject orders in the Syndicated
Community Offering in whole or in part. The Subscription, Community and
Syndicated Community Offerings are sometimes collectively referred to as the
"Offerings." In the Subscription Offering (and the Community Offering and
Syndicated Community Offering, if applicable), the Company is offering between
629,000 and 851,000 shares of Common Stock ("Shares"), with the possibility of
offering up to 978,650 shares without a resolicitation of subscribers, as
contemplated by Part 563b of Title 12 of the Code of Federal Regulations. Except
for the ESOP, no person may purchase shares with an aggregate purchase price of
more than $100,000 and no person or entity, together with associates of and
persons acting in concert with such person or other entity, may purchase more
than $300,000 of Common Stock.
Trident has advised the Company and the Bank that it will utilize its best
efforts to assist the Company with the sale of the Shares in the Offerings.
Prior to the execution of this Agreement, the Company has delivered to Trident
the prospectus dated _____________, 2002 (as hereinafter defined) and all
supplements thereto, if any, to be used in the Offerings have also been
delivered to Trident (or if after the date of this Agreement, will be promptly
delivered to Trident). Such prospectus contains information with respect to the
Company, the Bank and the Shares.
2. Representations and Warranties.
(a) The Company and the Bank jointly and severally represent and
warrant to Trident that:
(i) The Company has filed with the Commission a registration
statement, including exhibits and an amendment or amendments thereto,
on Form SB-2 (No. 333-_____), including a prospectus relating to the
Offerings, for the registration of the Shares under the Securities Act
of 1933, as amended ("Act"). Such registration statement has become
effective under the Act and no stop order has been issued with respect
thereto and no proceedings therefore have been initiated or, to the
Company's best knowledge, threatened by the Commission. Except as the
context may otherwise require, such registration statement, as amended
or supplemented, on file with the Commission at the time the
registration statement became effective, including the prospectus,
financial statements, schedules, exhibits and all other documents
filed as part thereof, as amended and supplemented, is herein called
the "Registration Statement," and the prospectus, as amended or
supplemented, on file with the Commission at the time the Registration
Statement became effective is herein called the "Prospectus," except
that if the prospectus filed by the Company with the Commission
pursuant to Rule 424(b) of the general rules and regulations of the
Commission under the Act ("SEC Regulations") differs from the form of
prospectus on file at the time the Registration Statement became
effective, the term "Prospectus" shall refer to the Rule 424(b)
prospectus from and after the time it is filed with the Commission
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and shall include any amendments or supplements thereto from and after
their dates of effectiveness or use, respectively. If any Shares
remain unsubscribed following completion of the Subscription Offering,
the Community Offering, and the Syndicated Community Offering if any,
the Company (i) will, if required by SEC Regulations, promptly file
with the Commission a post-effective amendment to such Registration
Statement relating to the results of the Subscription Offering,
Community Offering and the Syndicated Community Offering, if any, any
additional information with respect to the proposed plan of
distribution and any revised pricing information or (ii) if no such
post-effective amendment is required, will file with the Commission a
prospectus or prospectus supplement containing information relating to
the results of the Subscription Offering, the Community Offering and
the Syndicated Community Offering, if any, and pricing information
pursuant to Rule 424(c) of the SEC Regulations, in either case in a
form reasonably acceptable to the Company and Trident.
(ii) The Bank has filed an Application for Approval of
Conversion on Form AC, including exhibits (as amended or supplemented,
the "Form AC" and together with the Form H-(e)1-S referred to below,
the "Conversion Application") with the Office of Thrift Supervision
("Office") under the Home Owners' Loan Act, as amended ("HOLA") and
the enforceable rules and regulations, including published policies
and actions, of the Office thereunder ("OTS Regulations"), which has
been approved by the Office; the Prospectus and the proxy statement
for the solicitation of proxies from members of the Bank for the
special meeting to approve the Plan ("Proxy Statement") included as
part of the Form AC have been approved for use by the Office. No order
has been issued by the Office preventing or suspending the use of the
Prospectus or the Proxy Statement; and no action by or before the
Office revoking such approvals is pending or, to the Bank's best
knowledge, threatened. The Company has filed with the Office the
Company's application on Form H-(e)1-S under the savings and loan
holding company provisions of the HOLA and the OTS Regulations, which
has been conditionally approved.
(iii) At the date of the Prospectus and at all times subsequent
thereto through and including the Closing Date (as hereinafter
defined) (i) the Registration Statement and the Prospectus (as amended
or supplemented, if amended or supplemented) complied and will comply
as to form in all material respects with the Act and the SEC
Regulations, (ii) the Registration Statement (as amended or
supplemented, if amended or supplemented) did not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading and (iii) the Prospectus (as amended or supplemented, if
amended or supplemented) did not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
Representations or warranties in this subsection shall not apply to
statements or omissions made in reliance upon and in conformity with
written information
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about Trident furnished to the Company or the Bank by or on behalf of
Trident expressly for use in the Registration Statement or Prospectus.
(iv) The Company is duly incorporated and validly existing as a
Delaware Corporation and the Bank is duly organized as a federally
chartered mutual savings bank under the laws of the United States of
America, and each of them is validly existing and in good standing
under the laws of the jurisdiction of its organization with full power
and authority to own its property and conduct its business as
described in the Prospectus; the Bank is a member of the Federal Home
Loan Bank of Des Moines; and the deposit accounts of the Bank are
insured by the Savings Association Insurance Fund ("SAIF")
administered by the Federal Deposit Insurance Corporation ("FDIC") up
to the applicable limits. The Bank has no subsidiaries or investments
in excess of 10% of any class of stock of any corporation or other
entity. Neither the Company nor the Bank is required to be qualified
to do business as a foreign corporation in any jurisdiction where
non-qualification would have a material adverse effect on the Company
and the Bank, taken as a whole. The Bank does not own equity
securities of or an equity interest in any business enterprise, except
as described in the Prospectus. Upon amendment of the Bank's charter
and bylaws as provided in the OTS Regulations and completion of the
sale by the Company of the Shares as contemplated by the Prospectus
and the Plan, (i) the Bank will convert to a federally chartered
capital stock savings bank with full power and authority to own its
property and conduct its business as described in the Prospectus, (ii)
all of the authorized and outstanding capital stock of the Bank will
be owned of record and beneficially by the Company, and (iii) the
Company will have no direct subsidiaries other than the Bank.
(v) The Bank has good and marketable title to all assets
material to its business and to those assets described in the
Prospectus as owned by it, free and clear of all liens, charges,
encumbrances or restrictions, except as described in the Prospectus
and except as would not in the aggregate have a material adverse
effect on the Bank; and all of the leases and subleases material to
the operations or financial condition of the Bank, under which it
holds properties, including those described in the Prospectus, are in
full force and effect as described therein.
(vi) The Bank has obtained all licenses, permits and other
governmental authorizations currently required for the conduct of its
business, all such licenses, permits and other governmental
authorizations are in full force and effect and the Bank is in all
material respects complying therewith, except where the failure to
hold or comply with such licenses, permits or governmental
authorizations would not have a material adverse effect on the Company
and the Bank, taken as a whole.
(vii) The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly
and validly authorized by all necessary corporate action on the part
of each of the
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Company and the Bank, and this Agreement has been validly executed and
delivered by, and is a valid and binding obligation of, each of the
Company and the Bank, enforceable in accordance with its terms (except
as the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, reorganization or similar laws relating to or
affecting the enforcement of creditors' rights generally or the rights
of creditors of depository institutions whose accounts are insured by
the FDIC and of savings and loan holding companies the accounts of
whose subsidiary are insured by the FDIC or by general equity
principles, regardless of whether such enforceability is considered in
a proceeding in equity or at law, and except to the extent that the
provisions of Sections 8 and 9 hereof may be unenforceable as against
public policy or pursuant to Section 23A of the Federal Reserve Act,
12 U.S.C. Section 371c ("Section 23A")).
(viii) There is no litigation or governmental proceeding pending
or, to the best knowledge of the Company or the Bank, threatened
against or involving the Company, the Bank, or any of their respective
assets which individually or in the aggregate would reasonably be
expected to have a material adverse effect on the condition (financial
or otherwise), results of operations, assets or properties of the
Company and the Bank, taken as a whole.
(ix) The Company and the Bank have received the opinion of Xxxx
Xxxxxx Xxxxxxxx & Xxxxxx, P.C., counsel to the Company and the Bank,
with respect to federal income tax consequences of the Conversion, to
the effect that the Conversion will constitute a tax-free
reorganization under the Internal Revenue Code of 1986, as amended;
the Company and the Bank have also received the opinion of Xxxxxxx
Xxxxxx & Company, P.C. with respect to the Missouri tax consequences
of the Conversion, to the effect that the Conversion will not be a
taxable transaction for the Bank or the Company under the laws of
Missouri; and the facts and representations upon which such entities
relied in rendering their respective opinions are accurate and
complete.
(x) Each of the Company and the Bank has all such corporate
power, authority, authorizations, approvals and orders as may be
required to enter into this Agreement and to carry out the provisions
and conditions hereof, subject to the limitations set forth herein and
subject to the satisfaction of certain conditions imposed by the
Office in connection with its approvals of the Form AC and the
Application H-(e)1-S, and except as may be required under the "blue
sky" laws of various jurisdictions, and in the case of the Company, as
of the Closing Date, will have such approvals and orders to issue and
sell the Shares to be sold by the Company as provided herein, and in
the case of the Bank, as of the Closing Date, will have such approvals
and orders to issue and sell the shares of its common stock to be sold
to the Company as provided in the Plan, subject to the issuance of an
amended charter in the form required for federally chartered capital
stock savings banks ("Stock Charter"), the form of which Stock Charter
has been filed with the Form AC and approved by the Office.
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(xi) Neither the Company nor the Bank is in violation of any
rule or regulation of the Office or the FDIC or any insurance
regulators that could reasonably be expected to result in any
enforcement action against the Company, the Bank, or their officers or
directors that would have a material adverse effect on the condition
(financial or otherwise), results of operations, businesses, assets or
properties of the Company and the Bank, taken as a whole.
(xii) The financial statements and the related notes or
schedules which are included in the Registration Statement and are
part of the Prospectus fairly present the financial condition, income
and comprehensive income, equity and cash flows of the Bank at the
respective dates thereof and for the respective periods covered
thereby and comply as to form in all material respects with the
applicable accounting requirements of the SEC Regulations and the
applicable accounting regulations of the Office. Such financial
statements have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods
involved, except as set forth therein, and such financial statements
are in all material respects consistent with financial statements and
other reports filed by the Bank with supervisory and regulatory
authorities except as such generally accepted accounting principles
may otherwise require. The tables in the Prospectus accurately present
the information purported to be shown thereby at the respective dates
thereof and for the respective periods therein.
(xiii) There has been no material change in the financial
condition, results of operations or business, including assets and
properties, of the Company and the Bank, taken as a whole, since the
latest date as of which such condition is set forth in the Prospectus,
except as set forth therein; and the capitalization, assets,
properties and business of each of the Company and the Bank conform in
all materials respects to the descriptions thereof contained in the
Prospectus. Neither the Company nor the Bank has any material
liabilities of any kind, contingent or otherwise, except as set forth
in the Prospectus.
(xiv) There has been no breach or default (or the occurrence of
any event which, with notice or lapse of time or both, would
constitute a default) under, or creation or imposition of any lien,
charge or other encumbrance upon any of the properties or assets of
the Company or the Bank pursuant to any of the terms, provisions or
conditions of, any agreement, contract, indenture, bond, debenture,
note, instrument or obligation to which the Company or the Bank is a
party or by which any of them or any of their respective assets or
properties may be bound or is subject, or violation of any
governmental license or permit or any enforceable published law,
administrative regulation or order or court order, writ, injunction or
decree, which breach, default, encumbrance or violation would have a
material adverse effect on the condition (financial or otherwise),
results of operations, businesses, assets or properties of the Company
and the Bank, taken as a whole; all agreements which are material to
the financial condition, results of operations or business, assets or
properties of the Company or the Bank taken as a
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whole are in full force and effect, and no party to any such agreement
has instituted or, to the best knowledge of the Company or the Bank,
threatened any action or proceeding wherein the Company or the Bank is
alleged to be in default thereunder.
(xv) Neither the Company nor the Bank is in violation of its
respective articles of incorporation, charter or bylaws. The execution
and delivery of this Agreement and the consummation of the
transactions contemplated hereby by the Company and the Bank do not
conflict with or result in a breach of the respective articles of
incorporation, charter or bylaws of the Company or the Bank (in either
mutual or stock form) or constitute a material breach of or default
(or an event which, with notice or lapse of time or both, would
constitute a default) under, give rise to any right of termination,
cancellation or acceleration contained in, or result in the creation
or imposition of any lien, charge or other encumbrance upon any of the
properties or assets of the Company or the Bank pursuant to any of the
terms, provisions or conditions of, any material agreement, contract,
indenture, bond, debenture, note, instrument or obligation to which
the Company or the Bank is a party or violate any governmental license
or permit or any enforceable published law, administrative regulation
or order or court order, writ, injunction or decree (subject to the
satisfaction of certain conditions imposed by the Office in connection
with its approval of the Conversion Application or the Application
H-(e)1-S), which breach, default, encumbrance or violation would have
a material adverse effect on the Company and the Bank, taken as a
whole.
(xvi) Subsequent to the respective dates as of which information
is given in the Registration Statement and Prospectus and prior to the
Closing Date, except as otherwise may be indicated or contemplated
therein, neither the Company nor the Bank has issued any securities
which will remain issued and outstanding at the Closing Date or
incurred any liability or obligation, direct or contingent, or
borrowed money, except liabilities, obligations or borrowings in the
ordinary course of business, or entered into any other transaction not
in the ordinary course of business and consistent with prior
practices, which is material in light of the business of the Company
and the Bank, taken as a whole.
(xvii) Upon consummation of the Conversion, the authorized,
issued and outstanding equity capital of the Company shall be within
the range set forth in the Prospectus under the caption
"Capitalization," and no capital stock of the Company shall be
outstanding immediately prior to the Closing Date; the issuance and
the sale of the Shares have been duly authorized by all necessary
corporate action of the Company and the Bank and approved by the
Office and, when issued and paid for in accordance with the terms of
the Plan, shall be validly issued, fully paid and nonassessable and
shall conform to the description thereof contained in the Prospectus;
the issuance of the Shares is not subject to preemptive rights, except
as set forth in the Prospectus; and good title to the Shares will be
transferred by the Company to the purchasers thereof upon issuance
thereof against payment therefore, free and clear of all claims,
encumbrances, security
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interests and liens of the Company whatsoever. The certificates
representing the Shares will conform in all material respects with the
requirements of applicable laws and regulations. The issuance and sale
of the capital stock of the Bank to the Company has been duly
authorized by all necessary corporate action of the Bank and the
Company and has been approved by the Office (subject to the
satisfaction of various conditions imposed by the Office in connection
with its approval of the Conversion Application and the Application
H-(e)1-S), and such capital stock, when issued in accordance with the
terms of the Plan, will be fully paid and nonassessable and will
conform to the description thereof contained in the Prospectus.
(xviii) No approval of any regulatory or supervisory or other
public authority is required of the Company or the Bank in connection
with the execution and delivery of this Agreement or the issuance of
the Shares, except for the declaration of effectiveness of any
required post-effective amendment by the Commission and approval
thereof by the Office and approval of the Company's Application
H-(e)1-S, the issuance of the Stock Charter by the Office and as may
be required under the "blue sky" laws of various jurisdictions.
(xix) All contracts and other documents required to be filed as
exhibits to the Registration Statement or the Conversion Application
have been filed with the Commission or the Office, as the case may be.
(xx) Xxxxxxx Xxxxxx & Company, P.C., which has audited the
financial statements of the Bank at September 30, 2001 and 2000 and
for the years ended September 30, 2001 and 2000 included in the
Prospectus, is an independent public accountant with respect to the
Company and the Bank within the meaning of the Code of Professional
Ethics of the American Institute of Certified Public Accountants and
such accountants are, with respect to the Company and the Bank,
independent certified public accountants as required by the Act and
the SEC Regulations.
(xxi) For the past five years, or in the case of the Company,
such lesser period corresponding to the Company's existence, the
Company and the Bank have timely filed all required federal, state and
local tax returns, and no deficiency has been asserted with respect to
such returns by any taxing authorities, and the Company and the Bank
have paid all taxes that have become due and, to the best of their
knowledge, have made adequate reserves for known future tax
liabilities, except where any failure to make such filings, payments
and reserves, or the assertion of such a deficiency, would not have a
material adverse effect on the Company and the Bank, taken as a whole.
(xxii) All of the loans represented as assets of the Bank on the
most recent statement of financial condition of the Bank included in
the Prospectus meet or are exempt from all requirements of federal,
state or local law pertaining to lending, including without limitation
truth in lending (including the
8
requirements of Regulation Z and 12 C.F.R. Part 226), real estate
settlement procedures, consumer credit protection, equal credit
opportunity and all disclosure laws applicable to such loans, except
for violations which, if asserted, would not have a material adverse
effect on the Company and the Bank, taken as a whole.
(xxiii) To the best knowledge of the Company and the Bank, the
records of account holders, depositors and other members of the Bank
delivered to Trident by the Bank or its agent for use during the
Conversion are reliable and accurate.
(xxiv) To the best knowledge of the Company and the Bank,
neither the Company nor the Bank nor the employees of the Company or
the Bank, has made any payment of funds of the Company or the Bank
prohibited by law, and no funds of the Company or the Bank have been
set aside to be used for any payment prohibited by law.
(xxv) To the best knowledge of the Company and the Bank, the
Company and the Bank are in compliance with all laws, rules and
regulations relating to the discharge, storage, handling and disposal
of hazardous or toxic substances, pollutants or contaminants and
neither the Company nor the Bank believes that the Company and Bank is
subject to liability under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, or any similar
law, except for violations which, if asserted, would not have a
material adverse effect on the Company and the Bank, taken as a whole.
There are no actions, suits, regulatory investigations or other
proceedings pending or, to the best knowledge of the Company or the
Bank, threatened against the Company or the Bank relating to the
discharge, storage, handling and disposal of hazardous or toxic
substances, pollutants or contaminants. To the best knowledge of the
Company and the Bank, no disposal, release or discharge of hazardous
or toxic substances, pollutants or contaminants, including petroleum
and gas products, as any of such terms may be defined under federal,
state or local law, has been caused by the Company or the Bank or, to
the best knowledge of the Company or the Bank, has occurred on, in or
at any of the facilities or properties of the Company or the Bank,
except such disposal, release or discharge which would not have a
material adverse effect on the Company and the Bank, taken as a whole.
(xxvi) For purposes of Trident's obligation to file certain
documents and to make certain representations to the National
Association of Securities Dealers ("NASD") in connection with the
conversion, the Bank warrants that: (a) the Bank has not privately
placed any securities within the last 18 months; (b) there have been
no materials dealings within the last 12 months between the Bank and
any NASD member or any person related to or associated with any such
member; (c) none of the officers or directors of the Bank has any
affiliation with the NASD, (d) except as contemplated by the
engagement letter with Trident, the Bank has no financial or
management consulting contracts outstanding with any
9
other person; and (e) there has been no intermediary between Trident
and the Association in connection with the public offering of the
Association's shares, and no person is being compensated in any manner
for providing such service.
(b) Trident represents and warrants to the Company and the Bank that:
(i) Trident is registered as a broker-dealer with the
Commission and a member of the NASD, and is in good standing with the
Commission and the NASD.
(ii) Trident is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation, with
full corporate power and authority to provide the services to be
furnished to the Company and the Bank hereunder.
(iii) The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly
and validly authorized by all necessary action on the part of Trident,
and this Agreement is a legal, valid and binding obligation of
Trident, enforceable in accordance with its terms (except as the
enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, reorganization or similar laws relating to or affecting
the enforcement of creditors' rights generally or the rights of
creditors of registered broker-dealers accounts of whom may be
protected by the Securities Investor Protection Corporation or by
general equity principles, regardless of whether such enforceability
is considered in a proceeding in equity or at law, and except to the
extent that the provisions of Sections 8 and 9 hereof may be
unenforceable as against public policy or pursuant to Section 23A).
(iv) Each of Trident, and to Trident's best knowledge, its
employees, agents and representatives who shall perform any of the
services required hereunder to be performed by Trident shall be duly
authorized and shall have all licenses, approvals and permits
necessary to perform such services, and Trident is a registered
selling agent in the jurisdictions listed in Exhibit A hereto and will
remain registered in such jurisdictions in which the Company is
relying on such registration for the sale of the Shares, until the
Conversion is consummated or terminated.
(v) The execution and delivery of this Agreement by Trident,
the fulfillment of the terms set forth herein and the consummation of
the transactions contemplated hereby shall not violate or conflict
with the corporate charter or bylaws of Trident or violate, conflict
with or constitute a breach of, or default (or an event which, with
notice or lapse of time, or both, would constitute a default) under,
any material agreement, indenture or other instrument by which Trident
is bound or under any governmental license or permit or any law,
administrative regulation, authorization, approval or order or court
decree, injunction or order, except for such violations, conflicts,
breaches or defaults that would not have a
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material adverse effect on Trident's ability to perform its
obligations under this Agreement.
(vi) All funds received by Trident to purchase the Common Stock
will be handled in accordance with Rule 15c2-4 under the Securities
Exchange Act of 1934, as amended ("Exchange Act").
(vii) There is not now pending or, to Xxxxxxx's best knowledge,
threatened against Trident any action or proceeding before the
Commission, the NASD, any state securities commission or any state or
federal court concerning Trident's activities as a broker-dealer.
3. Employment of Trident; Sale and Delivery of the Shares. On the basis
of the representations and warranties herein contained, but subject to the terms
and conditions herein set forth, the Company and the Bank hereby employ Trident
as their agent to utilize its best efforts in assisting the Company with the
sale of the Shares by the Company in the Offerings. Trident will assist the Bank
in the Conversion by acting as marketing advisor with respect to the
Subscription Offering and will represent the Bank as placement agent on a best
efforts basis in the sale of the Common Stock in the Community Offering if one
is held; conduct training sessions with directors, officers and employees of the
Bank regarding the conversion process; and assist in the establishment and
supervision of the Bank's stock information center and, with management's input,
will train the Bank's staff to record properly and tabulate orders for the
purchase of Common Stock and to respond appropriately to customer inquiries. The
employment of Trident hereunder shall terminate (a) forty-five (45) days after
the Offerings close, unless the Company and the Bank, with the approval of the
Office, are permitted to extend such period of time, or (b) upon consummation of
the Conversion, whichever date shall first occur.
If the Company is unable to sell a minimum of 629,000 Shares of Common
Stock (or such lesser amount as the Office may permit) within the period herein
provided, this Agreement shall terminate, and the Company and the Bank shall
refund promptly to any person who has subscribed for any of the Shares, the full
amount which it may have received from them, together with interest as provided
in the Prospectus, and no party to this Agreement shall have any obligation to
the other party hereunder, except as set forth in Sections 6, 8(a), 8(d) and 9
hereof. Appropriate arrangements for placing the funds received from
subscriptions for Shares in a special interest-bearing account with the Bank
until all Shares are sold and paid for were made prior to the commencement of
the Subscription and Community Offering, with provision for prompt refund to the
purchasers as set forth above, or for delivery to the Company if all Shares are
sold.
If all conditions precedent to the consummation of the Conversion are
satisfied, including the sale of all Shares required by the Plan to be sold, the
Company agrees to issue or have issued such Shares and to release for delivery
certificates to subscribers thereof for such Shares on the Closing Date against
payment to the Company by any means authorized pursuant to the Prospectus, at
the principal office of the Company or at such other place as shall be agreed
upon between the parties hereto. The date upon which Xxxxxxx is paid the
compensation due hereunder
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is herein called the "Closing Date."
Trident agrees either (a) upon receipt of an executed order form of a
subscriber to forward the aggregate offering price of the Common Stock ordered
on or before twelve noon on the next business day following receipt or execution
of an order form by Trident to the Bank for deposit in a segregated account or
(b) to solicit indications of interest in which event (i) Trident will
subsequently contact any potential subscriber indicating interest to confirm the
interest and give instructions to execute and return an order form or to receive
authorization to execute the order form on the subscriber's behalf, (ii) Trident
will mail acknowledgments of receipt of orders to each subscriber confirming
interest on the business day following such confirmation, (iii) Trident will
debit accounts of such subscribers on the third business day ("debit date")
following receipt of the confirmation referred to in (i), and (iv) Trident will
forward completed order forms together with such funds to the Bank on or before
twelve noon on the next business day following the debit date for deposit in a
segregated account. Trident acknowledges that if the procedure in (b) is
adopted, subscribers' funds are not required to be in their accounts until the
debit date.
In addition to the expenses specified in Section 6 hereof, Trident shall
receive the following compensation for its services hereunder and reimbursement
of expenses:
(a) (i) a non-refundable management fee in the amount of $20,000, (ii)
a commission equal to two percent (2%) of the aggregate dollar
amount of stock sold in the Subscription Offering or Community
Offering, excluding any shares of stock sold to the Bank's
employee stock ownership plan and to the Company's and the Bank's
executive officers and directors; and (iii) if applicable, for any
stock sold by other NASD member firms under selected dealer's
agreements, the commission payable to Trident and the other NASD
member firms shall not exceed four and one-half percent (4 1/2%),
unless such amount is approved in advance by the Board of the
Bank. The commission is to be payable in same-day funds to Trident
and the sales commission, in the case of a Syndicated Community
Offering, to the other NASD member firms on the Closing Date.
(b) Trident shall be reimbursed for its reasonable legal fees and
expenses and for out-of-pocket expenses incurred by them and their
counsel, including but not limited to travel, communications,
postage, and the fees and expenses whether or not the Offerings
are successfully completed. Trident shall be reimbursed for such
fees in an amount not to exceed $50,000. Neither the Company nor
the Bank shall pay or reimburse Trident for any of the foregoing
expenses, however, if accrued after Trident shall have notified
the Company or the Bank of its election to terminate this
Agreement pursuant to Section 11 hereof or after such time as the
Company or the Bank shall have given notice in accordance with
Section 12 hereof that Trident is in breach of this Agreement.
Full payment to defray Trident's reimbursable expenses shall be
made in next-day funds on the Closing Date or, if the Conversion
is not completed and is terminated
12
for any reason, within ten (10) business days of receipt by the
Company of a written request from Trident for reimbursement of its
expenses.
The Company shall pay any stock issue and transfer taxes which may be
payable with respect to the sale of the Shares. The Company and the Bank shall
also pay all expenses of the Conversion incurred by them or on their prior
approval including but not limited to their attorneys' fees, NASD filing fees,
filing and registration fees, and attorneys' fees relating to any required state
securities laws research and filings, telephone charges, air freight, rental
equipment, supplies, transfer agent charges, fees relating to auditing and
accounting and costs of printing all documents necessary in connection with the
Conversion.
4. Offering. Subject to the provisions of Section 7 hereof, Trident is
assisting the Company on a best efforts basis in offering a minimum of 629,000
and a maximum of 851,000 Shares, with the possibility of offering up to 978,650
Shares (except as the Office may permit to be decreased or increased) in the
Subscription and Community Offerings. The Shares are to be offered to the public
at the price set forth on the cover page of the Prospectus and the first page of
this Agreement.
5. Further Agreements. The Company and the Bank jointly and severally
covenant and agree that:
(a) The Company shall deliver to Trident, from time to time, such number
of copies of the Prospectus as Trident reasonably may request. The Company
authorizes Trident to use the Prospectus in any lawful manner in connection
with the offer and sale of the Shares.
(b) The Company will notify Trident or its counsel immediately upon
discovery, and confirm the notice in writing, (i) when any post-effective
amendment to the Registration Statement becomes effective or any supplement
to the Prospectus has been filed, (ii) of the issuance by the Commission of
any stop order relating to the Registration Statement or of the initiation
or the threat of any proceedings for that purpose, (iii) of the receipt of
any notice with respect to the suspension of the qualification of the
Shares for offering or sale in any jurisdiction, and (iv) of the receipt of
any comments from the staff of the Commission relating to the Registration
Statement. If the Commission enters a stop order relating to the
Registration Statement at any time, the Company will make every reasonable
effort to obtain the lifting of such order at the earliest possible time.
(c) During the time when the Prospectus is required to be delivered
under the Act, the Company will comply with all requirements imposed upon
it by the Act, as now in effect and hereafter amended, and by the SEC
Regulations and the OTS Regulations, as from time to time in force, so far
as necessary to permit the continuance of offers and sales of or dealings
in the Shares in accordance with the provisions hereof and the Prospectus.
If, during the period when the Prospectus is required to be delivered in
connection with the offer and sale of the Shares, any event relating to or
affecting the Company or the Bank shall occur as a result of which it is
necessary, in the opinion of
13
counsel for Trident, with concurrence of counsel of the Company, to
amend or supplement the Prospectus in order to make the Prospectus not
false or misleading as to a material fact in light of the circumstances
existing at the time it is delivered to a purchaser of the Shares, the
Company shall prepare and furnish to Trident promptly a reasonable
number of copies of an amendment or amendments or of a supplement or
supplements to the Prospectus (in form and substance satisfactory to
counsel for Trident) which shall amend or supplement the Prospectus so
that, as amended or supplemented, the Prospectus shall not contain an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the
circumstances existing at the time the Prospectus is delivered to a
purchaser of the Shares, not misleading. The Company will not file or
use any amendment or supplement to the Registration Statement or the
Prospectus of which Trident has not first been furnished a copy or to
which Trident shall reasonably object after having been furnished such
copy. For the purposes of this subsection the Company and the Bank
shall furnish such information with respect to themselves as Trident
from time to time may reasonably request.
(d) The Company has taken or will take all necessary action as may
be required to qualify or register the Shares for offer and sale by the
Company under the securities or blue sky laws of such jurisdictions as
Trident and either the Company or its counsel may agree upon; provided,
however, that the Company shall not be obligated to qualify as a
foreign corporation to do business under the laws of any such
jurisdiction. In each jurisdiction where such qualification or
registration shall be effected, the Company, unless Trident agrees that
such action is not necessary or advisable in connection with the
distribution of the Shares, shall file and make such statements or
reports as are, or reasonably may be, required by the laws of such
jurisdiction.
(e) Appropriate entries will be made in the financial records of
the Bank sufficient to establish a liquidation account for the benefit
of Eligible Account Holders and Supplemental Eligible Account Holders
in accordance with the requirements of the Office.
(f) The Company will file a registration statement for the Common
Stock under Section 12(g) of the Exchange Act prior to completion of
the Conversion pursuant to the Plan and shall request that such
registration statement be effective upon completion of the Conversion.
The Company shall maintain the effectiveness of such registration for a
minimum period of three years or for such shorter period as may be
required by applicable law.
(g) The Company will make generally available to its security
holders as soon as practicable, but not later than 90 days after the
close of the period covered thereby, an earnings statement (in form
complying with the provisions of Rule 158 of the SEC Regulations)
covering a twelve-month period beginning not later than the first day
of the Company's fiscal quarter next following the effective date (as
defined in said Rule 158) of the Registration Statement.
14
(h) For a period of three years from the date of this Agreement
(unless the Common Stock shall have been deregistered under the
Exchange Act), the Company will furnish to Trident, as soon as publicly
available after the end of each fiscal year, a copy of its annual
report to shareholders for such year; and the Company will furnish to
Trident (i) as soon as publicly available, a copy of each report or
definitive proxy statement of the Company filed with the Commission
under the Exchange Act or mailed to shareholders, and (ii) from time to
time, such other public information concerning the Company as Trident
may reasonably request.
(i) The Company and the Bank shall use the net proceeds from the
sale of the Shares consistently with the manner set forth in the
Prospectus.
(j) The Company shall not deliver the Shares until each and every
condition set forth in Section 7 hereof has been satisfied, unless such
condition is waived in writing by Trident.
(k) The Company shall advise Trident, if necessary, as to the
allocation of deposits, in the case of Eligible Account Holders and
Supplemental Eligible Account Holders, and votes, in the case of Other
Members (as defined in the Plan), and of the Shares in the event of an
oversubscription and shall provide Trident final instructions as to the
allocation of the Shares ("Allocation Instructions") and such
information shall be accurate and reliable. Trident shall be entitled
to rely on such instructions and shall have no liability in respect of
its reliance thereon, including without limitation, no liability for or
related to any denial or grant of a subscription in whole or in part,
except for such liability contemplated under Section 8(b) of this
Agreement.
(l) The Company and the Bank will take such actions and furnish such
information as are reasonably requested by Trident in order for Trident
to ensure compliance with the NASD's "Interpretation Relating to
Free-Riding and Withholding."
(m) At the Closing Date, the Company and the Bank will have
completed the conditions precedent to, and shall have conducted the
Conversion in all material respects in accordance with, the Plan, the
OTS Regulations and all other applicable laws, regulations, published
decisions and orders, including all terms, conditions, requirements and
provisions precedent to the Conversion imposed by the Office, or
appropriate waivers shall have been obtained.
6. Payment of Expenses. Whether or not the Conversion is consummated,
the Company and the Bank shall pay or reimburse Trident for (a) all filing fees
paid or incurred by Trident in connection with all filings with the NASD with
respect to the Subscription and Community Offerings and, (b) in addition, if the
Company is unable to sell a minimum of 629,000 Shares of Common Stock or such
lesser amount as the Office may permit or the Conversion is otherwise
terminated, the Company and the Bank shall reimburse Trident for allocable
expenses incurred by Trident relating to the offering of the Shares as provided
in Section 3 hereof; provided, however, that neither the Company nor the Bank
shall pay or reimburse Trident for any of the foregoing expenses accrued after
Trident shall have notified the
15
Company or the Bank of its election to terminate this Agreement pursuant to
Section 11 hereof or after such time as the Company or the Bank shall have given
notice in accordance with Section 12 hereof that Trident is in breach of this
Agreement.
7. Conditions of Trident's Obligations. Except as may be waived by Trident,
the obligations of Trident as provided herein shall be subject to the accuracy
of the representations and warranties contained in Section 2 hereof as of the
date hereof and as of the Closing Date, to the performance by the Company and
the Bank of their obligations hereunder and to the following conditions:
(a) At the Closing Date, Trident shall receive the favorable opinion of
Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C., counsel for the Company and the Bank,
dated the Closing Date, addressed to Trident, in form and substance
satisfactory to Trident to the effect that:
(i) The Company is a corporation in existence under the laws of
the State of Delaware, and the Bank is a mutual savings bank in
existence under the laws of the United States of America, each having
the corporate power to execute, deliver and perform its respective
obligations under this Agreement and to carry on its business as now
conducted and as described in the Prospectus;
(ii) The Bank is a member of the Federal Home Loan Bank of Des
Moines, and the deposit accounts of the Bank are insured by the SAIF up
to the applicable legal limits;
(iii) The activities of the Bank and the Company as described in the
Prospectus comply, in all material respects, with applicable federal and
state law.
(iv) The Plan complies in all material respects with, and the
Conversion has been effected in all material respects in accordance
with, the HOLA and the OTS Regulations; all of the terms, conditions,
requirements and provisions with respect to the Plan and the Conversion
imposed by the Office, except with respect to the filing or submission
of certain required post-Conversion reports by the Company or the Bank,
have been complied with by the Company and the Bank in all material
respects; and, no person has sought to obtain regulatory or judicial
review of the final action of the Office in approving the Plan;
(v) The Company has authorized capital stock as set forth in the
Registration Statement and the Prospectus;
(vi) The Company has authorized the issuance and sale of the Shares
by all necessary corporate action; the Shares, upon receipt of payment
and issuance in accordance with the terms of the Plan, will be validly
issued, fully
16
paid, nonassessable and, except as disclosed in the Prospectus,
free of preemptive rights; and purchasers of the Shares from the
Company, upon issuance thereof against payment therefore, will
acquire such Shares free and clear of all claims, encumbrances,
security interests and liens created by the Company;
(vii) The form of certificate used to evidence the Shares is
in proper form and complies in all material respects with the
applicable requirements of Delaware law and the regulations of
the Office;
(viii) The Bank has authorized the sale of its capital stock
to the Company by all necessary corporate action, which sale has
been approved by the Office, and such capital stock, upon receipt
of payment and issuance in accordance with the terms of the Plan
and the Prospectus, will be validly issued, fully paid and
nonassessable and owned of record and beneficially by the
Company;
(ix) Subject to the satisfaction of the conditions to the
Office's approval of the Conversion Application and Application
H-(e)1-S and the issuance by the Office of the Bank's Stock
Charter, no consent, approval, authorization or other action by,
or filing or registration with, any governmental agency is
required to be obtained or made by the Company or the Bank for
the execution and delivery of this Agreement, the issuance of the
Shares and the consummation of the Conversion except as may be
required under the "blue sky" laws of various jurisdictions;
(x) The Company and the Bank have authorized the
execution, delivery and performance of this Agreement by all
necessary corporate action;
(xi) The Plan has been duly adopted by the requisite vote
of the Board of Directors of the Bank and by the requisite vote
of the Board of Directors of the Company; and, based upon the
report of the Inspector of Election, the Plan has been approved
by the requisite vote of the eligible voting members of the Bank
at a duly called meeting;
(xii) The statements in the Prospectus under the captions
"Dividend Policy," "Supervision and Regulation," "Federal and
State Taxation," "Description of Capital Stock," and
"Restrictions on Acquisitions of Stock and Related Takeover
Defense Provisions" insofar as they are, or refer to, statements
of law or legal conclusions (excluding financial data included
therein or omitted therefrom, as to which an opinion need not be
expressed), have been prepared or reviewed by such counsel and
are accurate in all material respects;
(xiii) The Conversion Application, the Registration
Statement, the Prospectus and the Proxy Statement, in each case
as amended or supplemented, comply as to form in all material
respects with the requirements of the Act, the SEC Regulations,
the HOLA and the OTS Regulations, as the case may be
17
(except as to information with respect to Trident included
therein and financial statements, notes to financial statements,
financial tables and other financial and statistical data,
including the appraisal, included therein or omitted therefrom,
as to which no opinion need be expressed); to such counsel's
knowledge, all documents and exhibits required to be filed with
the Conversion Application and the Registration Statement have
been so filed and the descriptions in the Conversion Application
and the Registration Statement of such documents and exhibits are
accurate in all material respects;
(xiv) The Form AC has been approved by the Office, and the
Prospectus and the Proxy Statement have been authorized for use
by the Office; the Registration Statement and any post-effective
amendment thereto has been declared effective by the Commission;
no proceedings are pending by or before the Commission or the
Office seeking to revoke or rescind the orders declaring the
Registration Statement effective or approving the Conversion
Application or, to such counsel's knowledge, are contemplated or
threatened (provided that for this purpose such counsel need not
regard any litigation or governmental procedure to be
"threatened" unless the potential litigant or government
authority has manifested to the management of the Company or the
Bank, or to such counsel, a present intention to initiate such
litigation or proceeding);
(xv) The execution and delivery of this Agreement, and the
consummation of the Conversion by the Company and the Bank, do
not violate any provision of the articles of incorporation,
charter or bylaws of the Company or the Bank, do not violate or
constitute a breach of or default under any contract, agreement
or instrument described in the Prospectus or filed as an exhibit
to the Registration Statement, and, to the knowledge of such
counsel, do not violate any applicable law, regulation or any
judgment or order of any government, governmental instrumentality
or court that is binding on the Company or the Bank or any of
their assets, properties or operations;
(xvi) To the knowledge of such counsel, each of the Company
and the Bank has obtained all licenses, permits and other
governmental authorizations currently required for the conduct of
its respective business as such business is described in the
Prospectus, all such licenses, permits and other governmental
authorizations are in full force and effect and the Company and
the Bank are in all material respects complying therewith, except
where the failure to hold such licenses, permits or governmental
authorizations or the failure to so comply would not have a
material adverse effect on the Company and the Bank, taken as a
whole;
(xvii) There is no action, suit, proceedings, inquiry or
investigation before or by any court or governmental agency or
body, now pending or, to such counsel's knowledge, threatened,
against either the Company or the Bank which individually, or in
the aggregate, would have a material adverse effect on the
Company and the Bank, taken as a whole;
18
(xviii) This agreement has been duly executed and delivered by
the Company and the Bank and is enforceable against the Bank and the
Company (except as the enforceability thereof may be limited by
bankruptcy, insolvency, moratorium, reorganization or similar laws
relating to or affecting the enforcement of creditors' rights
generally or the rights of creditors of insured depository
institutions or by general equity principles, regardless of whether
such enforceability is considered in a proceeding in equity or at law,
and except to the extent that the provisions of Sections 8 and 9
hereof may be unenforceable as against public policy or pursuant to
Section 23A);
(xix) To such counsel's knowledge, the execution and delivery
of this Agreement and the consummation of the Conversion by the
Company and the Bank do not constitute a breach of or default (or an
event which, with notice or lapse of time or both, would constitute a
default) under, give rise to any right of termination, cancellation or
acceleration contained in, or result in the creation or imposition of
any lien, charge or other encumbrance upon any of the properties or
assets of the Company or the Bank pursuant to any of the terms,
provisions or conditions of, any material agreement, contract,
indenture, bond, debenture, note, instrument or obligation to which
the Company or the Bank is a party or violate any governmental license
or permit or any enforceable published law, administrative regulation
or order or court order, writ, injunction or decree (except as may be
required under the "blue sky" laws as to which no opinion need be
expressed), which breach, default, encumbrance or violation would have
a material adverse effect on the Company and the Bank, taken as a
whole; and
(xx) There has been no material breach of any provision of the
Company's or the Bank's respective articles of incorporation, charter
or bylaws or, to such counsel's knowledge, a breach or default (or the
occurrence of any event which, with notice or lapse of time or both,
would constitute a default) under any agreement, contract, indenture,
debenture, bond, note, instrument or obligation to which the Company
or the Bank is a party or by which any of them or any of their
respective assets or properties may be bound, or any governmental
license or permit, or a violation of any enforceable published law,
administrative regulation or order, or court order, writ, injunction
or decree which breach, default, encumbrance or violation would have a
material adverse effect on the Company and the Bank, taken as a whole.
In rendering such opinion, such counsel may rely as to matters of fact on
certificates of officers and directors of the Company and the Bank and
certificates of public officials delivered pursuant to this Agreement. Such
counsel may assume that any agreement is the valid and binding obligation of any
parties to such agreement other than the Company and the Bank. Such opinion may
be governed by, and interpreted in accordance with, the Legal Opinion Accord
("Accord") of the ABA Section of Business Law (1991), and, as a consequence,
such opinion may be rendered subject to the qualifications, exceptions,
definitions, limitations on coverage and other limitations, all as more
particularly described in the Accord. Further, references in
19
such opinion to such counsel's "knowledge" may be limited to "knowledge" as
defined in the Accord (or knowledge based on certificates). In addition, the
"General Qualifications" set forth in the Accord and other customary assumptions
and limitations may apply to such opinion. Such opinion may be limited to
present statutes, regulations and judicial interpretations and to facts as they
presently exist; in rendering such opinion, such counsel need assume no
obligation to revise or supplement them should the present laws be changed by
legislative or regulatory action, judicial decision or otherwise; and such
counsels need express no view, opinion or belief with respect to whether any
proposed or pending legislation, if enacted, or any regulations or any policy
statements issued by any regulatory agency, whether or not promulgated pursuant
to any such legislation, would affect the validity of the execution and delivery
by the Company and the Bank of this Agreement or the issuance of the Shares.
Further, in rendering such opinions, Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C., may
rely on the opinion of ______________________, with respect to any matter of
Missouri law.
(b) At the Closing Date, Trident shall receive the letter of Xxxx
Xxxxxx Xxxxxxxx & Xxxxxx, P.C., special counsel for the Company and the
Bank, dated the Closing Date, addressed to Trident, in form and substance
satisfactory to Trident and to the effect that: based on such counsel's
participation in conferences with representatives of the Company, the Bank,
the independent appraiser, the independent certified public accountants,
Trident and its counsel, review of documents and understanding of
applicable law (including the requirements of Form SB-2 and the character
of the Registration Statement contemplated thereby) and the experience such
counsel has gained in its practice under the Act, nothing has come to such
counsel's attention that would lead it to believe that the Registration
Statement, as amended (except as to information in respect of Trident
contained therein and except as to the appraisal, financial statements,
notes to financial statements, financial tables and other financial and
statistical data contained therein or omitted therefrom, as to which such
counsel need express no comment), at the time it became effective contained
any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements made
therein, not misleading, or that the Prospectus, as amended or supplemented
(except as to information in respect of Trident contained therein and
except as to the appraisal, financial statements, notes to financial
statements, financial tables and other financial and statistical data
contained therein or omitted therefrom as to which such counsel need
express no comment), at the time the Prospectus was filed with the
Commission under Rule 424(b), and at the Closing Date, contained any untrue
statement of a material fact or omitted to state a material fact necessary
to make the statements therein, in light of the circumstances under which
they were made, not misleading (in making this statement such counsel may
state that it has not undertaken to verify independently the information in
the Registration Statement or Prospectus and, therefore, does not assume
any responsibility for the accuracy or completeness thereof).
(c) Counsel for Trident shall have been furnished such documents as
they reasonably may require for the purpose of enabling them to review or
pass upon the matters required by Trident, and for the purpose of
evidencing the accuracy, completeness or satisfaction of any of the
representations, warranties or conditions contained in this Agreement,
including but not limited to, resolutions of the Board of
20
Directors of the Company and the Bank regarding the authorization,
execution and delivery of this Agreement and the transactions
contemplated by the Plan and this Agreement.
(d) Prior to and at the Closing Date, in the reasonable
opinion of Trident, (i) there shall have been no material adverse
change in the condition (financial or otherwise), business or results
of operations of the Company and the Bank, taken as a whole, since the
latest date as of which information is set forth in the Prospectus,
except as referred to therein; (ii) there shall have been no
transaction entered into by the Company or the Bank after the latest
date as of which the financial condition of the Company or the Bank is
set forth in the Prospectus other than transactions referred to or
contemplated therein, transactions in the ordinary course of business,
and transactions which are not material to the Company and the Bank,
taken as a whole; (iii) neither the Company nor the Bank shall have
received from the Office or the Commission any direction (oral or
written) to make any change in the method of conducting their
respective businesses which is material to the business of the Company
and the Bank, taken as a whole, with which they have not complied; (iv)
no action, suit or proceeding, at law or in equity or before or by any
federal or state commission, board or other administrative agency,
shall be pending or threatened against the Company or the Bank or
affecting any of their respective assets, wherein an unfavorable
decision, ruling or finding would have a material adverse effect on the
Company and the Bank, taken as a whole; and (v) the Shares shall have
been qualified or registered for offering and sale by the Company under
the "blue sky" laws of such jurisdictions as Trident and the Company
shall have agreed upon.
(e) At the Closing Date, Trident shall receive a certificate
of the principal executive officer and the principal financial officer
of each of the Company and the Bank, dated the Closing Date, to the
effect that: (i) they have examined the Prospectus and, at the time the
Registration Statement was declared effective by the Commission and at
the time the Prospectus was authorized by the Office for use, the
Prospectus did not contain an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading with respect to the Company or the Bank; (ii) since the date
the Registration Statement was declared effective by the Commission and
since the date the Prospectus became authorized by the Office for use,
no event has occurred which should have been set forth in an amendment
or supplement to the Prospectus which has not been so set forth,
including specifically, but without limitation, any material change in
the business, condition (financial or otherwise) or results of
operations of the Company or the Bank, and the conditions set forth in
clauses (ii) through (v) inclusive of subsection (d) of this Section 7
have been satisfied; (iii) no order has been issued by the Commission
or the Office to suspend the Offering or the effectiveness of the
Prospectus, and no action for such purposes has been instituted or, to
the knowledge of such officers, threatened by the Commission or the
Office; (iv) to the knowledge of such officers, no person has sought to
obtain review of the final actions of the Office and division approving
the Plan; and (v) all of the representations and warranties contained
in Section 2 of this Agreement are true and correct, with the same
force and effect as though expressly made on the Closing Date.
21
(f) At the Closing Date, Trident shall receive, among other
documents, (i) copies of the letters from the Office authorizing the
use of the Prospectus and the Proxy Statement and the approval of the
Conversion Application (ii) if available, a copy of the order of the
Commission declaring the Registration Statement effective; (iii) a copy
of the letter from the Office evidencing the corporate existence of the
Bank; (iv) a copy of the letter from the appropriate Delaware authority
evidencing the incorporation (and, if generally available from such
authority, good standing) of the Company; (v) a copy of the Company's
articles of incorporation certified by the appropriate Delaware
government authority Office; (vi) a copy of the letter from the Office
approving the Bank's Stock Charter; (vii) copy of the certificate from
the FDIC certifying to the insured status by the Bank; and (viii) copy
of the letter from the FHLB of Des Moines evidencing the Bank's
membership therein.
(g) As soon as available after the Closing Date, Trident shall
receive a certified copy of the Company's articles of incorporation and
Bank's Stock Charter as executed by the Office.
(h) Concurrently with the execution of this Agreement, Trident
shall receive a letter from Xxxxxxx Xxxxxx & Company, P.C., independent
certified public accountants, addressed to Trident, the Company and the
Bank, in substance and form satisfactory to Trident, with respect to
the financial statements of the Bank and other financial information
contained in the Prospectus.
(i) At the Closing Date, Trident shall receive a letter in form
and substance satisfactory to Trident from Xxxxxxx Xxxxxx & Company,
P.C., independent certified public accountants, dated the Closing Date
and addressed to Trident, the Company and the Bank, confirming the
statements made by them in the letters delivered by them pursuant to
the preceding subsection as of a specified date not more than five (5)
business days prior to the Closing Date.
(j) At the Closing Date, Trident shall receive a copy of the
opinion of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C., special counsel to the
Company and the Bank, addressed to the Company and the Bank and dated
the Closing Date, in form and substance satisfactory to Trident and to
its counsel that the Conversion will constitute a tax-free
reorganization under the Internal Revenue Code of 1986, as amended;
Trident shall have also received a copy of the letter of Xxxxxxx Xxxxxx
& Company, P.C., independent certified public accountants, addressed to
the Company and the Bank and dated the Closing Date, in form and
substance satisfactory to Trident and to the effect that the Conversion
will not be a taxable transaction for the Bank or the Company under the
laws of Missouri; and that the facts and representations which such
entities relied upon in rendering their respective opinions to the Bank
and the Company are accurate and complete.
All such opinions, certificates, letters and documents shall be in
compliance with the provisions hereof only if they are, in the reasonable
opinion of Trident and its counsel,
22
satisfactory to Trident. Any certificates signed by an officer or director of
the Company or the Bank prepared for Trident's reliance and delivered to Trident
or to counsel for Trident shall be deemed a representation and warranty by the
Company and the Bank to Trident as to the statements made therein. If any
condition to Trident's obligations hereunder to be fulfilled prior to or at the
Closing Date is not so fulfilled, Trident may terminate this Agreement or, if
Trident so elects, may waive any such conditions which have not been fulfilled,
or may extend the time of their fulfillment. If Trident terminates this
Agreement as aforesaid, the Company and the Bank shall reimburse Trident for its
expenses as provided in Section 3(b) hereof.
8. Indemnification.
(a) The Company and the Bank jointly and severally agree to
indemnify and hold harmless Trident, its officers, directors, employees
and agents and each person, if any, who controls Trident within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act,
against any and all loss, liability, claim, damage and expense
whatsoever and shall further promptly reimburse such persons for any
legal or other expenses reasonably incurred by each or any of them in
investigating, preparing to defend or defending against any such
action, proceeding or claim (whether commenced or threatened) arising
out of or based upon (i) any misrepresentation by the Company or the
Bank in this Agreement or any breach of warranty by the Company or the
Bank with respect to this Agreement or arising out of or based upon any
untrue or alleged untrue statement of a material fact or the omission
or alleged omission of a material fact required to be stated or
necessary to make not misleading any statements contained in (A) the
Registration Statement or the Prospectus or (B) any application
(including the Form AC and the Form H-(e)1-S) or other document or
communication (in this Section 8 collectively called "Application")
prepared or executed by or on behalf of the Company or the Bank or
based upon information furnished by or on behalf of the Company or the
Bank, whether or not filed in any jurisdiction, to effect the
Conversion or qualify the Shares under the securities laws thereof or
filed with the Office or Commission, unless such statement or omission
was made in reliance upon and in conformity with information furnished
to the Company or the Bank with respect to Trident by or on behalf of
Trident expressly for use in the Prospectus or any amendment or
supplement thereof or in any Application, as the case may be, or (ii)
the participation by Trident in the Conversion; provided, however, that
this indemnification agreement will not apply to any loss, liability,
claim, damage or expense found in a final judgment by a court of
competent jurisdiction to have resulted primarily from the bad faith,
willful misconduct or gross negligence of Trident or any other party
who may otherwise be entitled to indemnification pursuant to this
Section 8(a). This indemnity shall be in addition to any liability the
Company and the Bank may otherwise have to Trident.
(b) The Company shall indemnify and hold harmless Trident, its
officers, directors, employees and agents and each person, if any, who
controls Trident within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act for any liability whatsoever arising out of
(i) the Allocation Instructions or (ii) any records of account
23
holders, depositors, borrowers and other members of the Bank delivered
to Trident by the Bank or its agents for use during the Conversion;
provided, however, that this indemnification agreement will not apply
to any loss, liability, claim, damage or expense found in a final
judgment by a court of competent jurisdiction to have resulted
principally and directly from the bad faith, willful misconduct or
gross negligence of Trident or any other party who may otherwise be
entitled to indemnification pursuant to this Section 8(b). This
indemnity shall be in addition to any liability the Company and the
Bank may otherwise have to Trident.
(c) Trident agrees to indemnify and hold harmless the Company and
the Bank, their officers, directors and employees and each person, if
any, who controls the Company and the Bank within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act, to the same
extent as the foregoing indemnity from the Company and the Bank to
Trident, but only with respect to (i) statements or omissions, if any,
made in the Prospectus or any amendment or supplement thereof, in any
Application or to a purchaser of the Shares in reliance upon, and in
conformity with, written information furnished to the Company or the
Bank with respect to Trident by Trident expressly for use in the
Prospectus or in any Application which the Company and the Bank
acknowledge appears only in the section captioned "market for the
common stock" and the second and third paragraphs of the section
captioned. The Conversion - Plan of Distribution and Marketing
Arrangements"; (ii) any misrepresentation by Trident in Section 2(b) of
this Agreement; or (iii) any liability of the Company or the Bank which
is found in a final judgment by a court of competent jurisdiction (not
subject to further appeal) to have resulted principally and directly
from gross negligence, bad faith or willful misconduct of Trident.
(d) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party
of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which it may
have to any indemnified party otherwise than under this Section 8. In
case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the
extent that it may wish, jointly with the other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party will not be liable
to such indemnified party under this Section 8 for any legal or other
expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than the reasonable cost of
investigation except as otherwise provided herein. In the event the
indemnifying party elects to assume the defense of any such action and
retain counsel acceptable to the indemnified party, the indemnified
party may retain additional counsel, but shall bear the fees and
expenses of such counsel unless (i) the indemnifying party shall have
specifically authorized the indemnified party to retain such counsel or
(ii) the parties to such suit include such indemnifying party and the
indemnified party, and such
24
indemnified party shall have been advised by counsel that one or more
material legal defenses may be available to the indemnified party which
may not be available to the indemnifying party, in which case the
indemnifying party shall not be entitled to assume the defense of such
suit notwithstanding the indemnifying party's obligation to bear the
fees and expenses of such counsel. An indemnifying party against whom
indemnity may be sought shall not be liable to indemnify an indemnified
party under this Section 8 if any settlement of any such action is
effected without such indemnifying party's consent. To the extent
required by law, this Section 8 is subject to and limited by the
provisions of Section 23A.
9. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 8 above is for any reason held to be unavailable to Trident, the Company
and/or the Bank other than in accordance with its terms, the Company or the Bank
and Trident shall contribute to the aggregate losses, liabilities, claims,
damages, and expenses of the nature contemplated by said indemnity agreement
incurred by the Company or the Bank and Trident (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Bank, on the one hand, and Trident, on the other hand, from the offering of the
Shares or (ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above, but also the relative fault
of the Company or the Bank, on the one hand, and Trident, on the other hand, in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Bank, on the one hand, and Trident, on the other hand, shall be deemed to be in
the same proportion as the total net proceeds from the Conversion received by
the Company and the Bank bear to the total fees and expenses received by Trident
under this Agreement. The relative fault of the Company or the Bank, on the one
hand, and Trident, on the other hand, shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Bank or by Trident and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the Bank and Trident agree that it would not be just
and equitable if contribution pursuant to this Section 9 were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by the indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 9, Trident shall not be required
to contribute any amount in excess of the amount by which fees owed Trident
pursuant to this Agreement exceeds the amount of any damages which Trident has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who is not
25
guilty of such fraudulent misrepresentation. To the extent required by law, this
Section 9 is subject to and limited by the provisions of Section 23A.
10. Survival of Agreements, Representations and Indemnities. The
respective indemnities of the Company and the Bank and Trident and the
representations and warranties of the Company and the Bank and of Trident set
forth in or made pursuant to this Agreement shall remain in full force and
effect, regardless of any termination or cancellation of this Agreement or any
investigation made by or on behalf of Trident or the Company or the Bank or any
controlling person or indemnified party referred to in Section 8 hereof, and
shall survive any termination or consummation of this Agreement and/or the
issuance of the Shares, and any legal representative of Trident, the Company,
the Bank and any such controlling persons shall be entitled to the benefit of
the respective agreements, indemnities, warranties and representations.
11. Termination.
(a) Trident may terminate this Agreement by giving the notice indicated
below in this Section at any time after this Agreement becomes
effective if any domestic or international event or act or occurrence
has materially disrupted the United States of America securities
markets such as to make it, in Trident's reasonable opinion,
impracticable to proceed with the offering of the Shares; or if trading
on the New York Stock Exchange or the Nasdaq Stock Market shall have
suspended; or if the United States of America shall have become
involved in a war or major hostilities; or if a general banking
moratorium has been declared by a state or federal authority which has
material effect on the Bank or the Conversion; or if a moratorium in
foreign exchange trading by major international banks or persons has
been declared; or if there shall have been a material adverse change in
the capitalization, financial condition or business of the Company, or
if the Bank shall have sustained a material or substantial loss by
fire, flood, accident, hurricane, earthquake, theft, sabotage or other
calamity or malicious act, whether or not said loss shall have been
insured; or if there shall have been a material adverse change in the
condition, financial or otherwise, or prospects of the Company or the
Bank.
(b) The Company, the Bank and Trident may terminate this
Agreement by mutual written agreement.
(c) If this Agreement is terminated by Trident for any of the
reasons set forth in subsection (a) above, and to fulfill their
obligations, if any, pursuant to Sections 3, 6, 8(a) and 9 of this
Agreement and upon demand, the Company and the Bank shall pay Trident
the full amount so owing thereunder.
(d) The Bank may terminate the Conversion in accordance with the
terms of the Plan. Such termination shall be without liability to any
party, except that the Company and the Bank shall be required to
fulfill their obligations pursuant to Sections 3, 6, 8(a), 8(d) and 9
of this Agreement.
26
(e) If this Agreement is terminated pursuant to this Section 11,
the party terminating the Agreement shall notify the non-terminating
party promptly by telephone or telegram, confirmed by letter.
12. Notices. All communications hereunder, except as herein otherwise
specifically provided, shall be in writing and if sent to Trident shall be
mailed, delivered or faxed and confirmed to Trident, 0000 Xxx Xxxxx Xxxx, Xxxxx
000, Xxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xx. Xxxx Xxxxxx Xxxx (with a copy
to Xxxxxxx Xxxxxx & Xxxxxxxx LLP, 0000 Xxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, XX
00000, Attention: Xxxx X. Xxxxxxx, Esquire) and if sent to the Company or the
Bank, shall be mailed, delivered or telegraphed and confirmed to CCSB Financial
Corp., 0000 Xxxx 000 Xxxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxx X. Xxxxx,
President and Chief Executive Officer of the Company and the Bank (with a copy
to Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C., 0000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 000,
Xxxxxxxxxx, X.X. 00000 (Attention: Xxxxxx Xxxxxxx, Esquire).
13. Parties. This Agreement shall inure solely to the benefit of, and
shall be binding upon, Trident, the Company, the Bank and the controlling and
other persons referred to in Section 8 hereof, and their respective successors,
legal representatives and assigns, and no other person shall have or be
construed to have any legal or equitable right, remedy or claim under or in
respect of or by virtue of this Agreement or any provision herein contained. The
undersigned consent to the assignment of rights and obligations of Trident
hereunder to McDonald Investments Inc.
14. Construction. This Agreement shall be governed by and construed in
accordance with the substantive laws of North Carolina regardless of the laws
that might otherwise govern under applicable principles of conflicts of law
thereof.
15. Counterparts and Definitions. This Agreement may be executed in
separate counterparts, each of which when so executed and delivered shall be an
original, but all of which together shall constitute but one and the same
instrument. Any initially capitalized terms not defined herein shall have the
meanings ascribed thereto in the Prospectus.
* * *
[Signature page follows]
27
Please acknowledge your agreement to the foregoing as of the date above
written by signing below and returning to the Company one copy of this letter.
CCSB FINANCIAL CORP CLAY COUNTY SAVINGS & LOAN
ASSOCIATION
By:_____________________________________ By:__________________________________
Xxxx X. Xxxxx Xxxx X. Xxxxx
President and Chief Executive Officer President and Chief Executive Officer
Agreed to and accepted:
MCDONALD INVESTMENTS, INC.
By: __________________________________
Xxxx Xxxxxx Xxxx
Senior Vice President
TRIDENT SECURITIES,
A Division of McDonald Investments, Inc.
Exhibit A
McDonald is a registered selling agent in the jurisdictions listed below:
Alabama Montana
Xxxxxx Xxxxxxxx
Arizona Nevada
Arkansas New Hampshire
California New Jersey
Colorado New Mexico
Connecticut New York
Delaware North Carolina
District of Columbia North Dakota (McDonald only, no agents)
Florida Ohio
Georgia Oklahoma
Hawaii Oregon
Idaho Pennsylvania
Illinois Rhode Island
Indiana South Carolina
Iowa South Dakota
Kansas Tennessee
Kentucky Texas
Louisiana Utah
Maine Vermont
Maryland Virginia
Massachusetts Washington
Michigan West Virginia
Minnesota Wisconsin
Mississippi Wyoming
Missouri
