EXHIBIT 1.2 DRAFT FORM OF AGENCY AGREEMENT BETWEEN CITIZENS FEDERAL SAVINGS
AND LOAN ASSOCIATION OF DELPHOS AND CHARLES WEBB & COMPANY
DELPHOS CITIZENS BANCORP, INC.
(A DELAWARE CORPORATION)
1,782,500 SHARES
(Subject to Increase up to 2,049,875 Shares)
COMMON STOCK ($.01 Par Value)
Subscription Price $10.00 Per Share
AGENCY AGREEMENT
_____, 1996
Charles Webb & Company
a Division of Keefe, Bruyette & Woods, Inc.
211 Bradenton Avenue
Dublin, Ohio 43017
Ladies and Gentlemen:
Delphos Citizens Bancorp, Inc. (the "Holding Company") and Citizens
Federal Savings and Loan Association of Delphos (the "Association") hereby
confirm their respective agreements with Charles Webb & Company, a Division of
Keefe, Bruyette & Woods, Inc. ("Webb" or, the "Agent") as follows:
SECTION 1. THE OFFERING. The Holding Company is offering up to 1,782,500
shares of common stock, par value $.01 per share (the "Common Stock") (subject
to an increase up to 2,049,875 shares), in a concurrent subscription offering
(the "Subscription Offering") and community offering (the "Community Offering")
(together the "Subscription and Community Offering") in connection with the
conversion of the Association from a federally chartered mutual savings and loan
association to a federally chartered stock savings bank to be known as Citizens
Bank of Delphos (the "Bank") (it is understood that for purposes of this
Agreement, the term "Association" shall include the "Bank" following the
Conversion, unless indicated otherwise) and the issuance of all of the
Association's outstanding common stock to the Holding Company (the "Conversion")
pursuant to the Association's plan of conversion (the "Plan"). Non-transferable
rights to subscribe for the Common Stock ("Subscription Rights") will be
granted, in the following priority in the Subscription Offering: (1) the
Association's depositors with account balances of $50.00 or more as of
December 31, 1994 ("Eligible Account Holders"); (2) tax-qualified employee
benefit plans of the Association and the Holding Company ("Tax-Qualified
Employee Plans"); (3) the Association's depositors with account balances of
$50.00 or more as of__________, 1996 ("Supplemental Eligible Account Holders");
and (4) members of the Association at the close of business on_________, 1996
other than Eligible Account Holders, and Supplemental Eligible Account Holders
and certain borrowers as of both May 20, 1996 and _____, 1996 who continue to be
borrowers as of the date of the Special Meeting. The Holding Company will issue
such number of shares of its Common Stock upon the Conversion as is subscribed
for and accepted, up to 1,782,500 shares (the "Shares") (subject to increase up
to 2,049,875 shares) at a purchase price of $10.00 per share (the "Purchase
Price"). The Holding Company is simultaneously offering all shares of Common
Stock not subscribed for in the Subscription Offering, if any, in a direct
Community Offering to members of the general public with a preference to natural
persons residing in postal zip code 45833 in the State of Ohio. Depending on
market conditions, shares may be offered in the Community Offering by approved
broker-dealer firms which are members of the National Association of Securities
Dealers, Inc. ("NASD") ("Assisting Brokers"). If the number of Shares is
increased or decreased in accordance with the Plan, the term "Shares" shall mean
such greater or lesser number, where applicable.
The Holding Company has filed with the U.S. Securities and Exchange
Commission (the "Commission") a Registration Statement on Form S-1 (File No.
333-_10639____) containing a prospectus relating to the Subscription and
Community Offering for the registration of the Shares under the Securities Act
of 1933, as amended (the "1933 Act"), and has filed such amendments thereto as
have been required to the date hereof (the "Registration Statement"). The
prospectus, as amended, included in the Registration Statement at the time it
initially became effective is hereinafter called the "Prospectus," except that
if any prospectus is filed by the Holding Company pursuant to Rule 424(b) or (c)
of the regulations of the Commission under the 1933 Act differing from the
prospectus included in the Registration Statement at the time it 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 and shall include any supplements and amendments thereto
from and after their dates of effectiveness or use, respectively.
The Association has filed with the Office of Thrift Supervision, Department
of the Treasury (the "OTS") pursuant to Title 12, Part 563b of the Code of
Federal Regulations (the "Conversion Regulations") an Application for Conversion
on Form AC, including the Prospectus, and has filed amendments thereto as
required by the OTS (as so amended, the "Application"). The Application has
been approved by the OTS. The Holding Company has filed with the OTS its
application on Form H-(e)1-S (the "Holding Company Application") to acquire the
Association under the Home Owners Loan Act, as amended, and the regulations
promulgated thereunder ("HOLA").
SECTION 2. APPOINTMENT OF THE AGENT. Subject to the terms and conditions
of this Agreement, the Holding Company and the Association hereby appoint Webb
as their financial advisor and marketing agent to utilize its best efforts to
solicit subscriptions for Shares of the Company's Common Stock and to advise and
assist the Company and the Association with respect to the Company's sale of the
Shares in the Offering. The Holding Company and Association understand that KBW
may participate in the Offering in the areas of market making, research coverage
and syndicate formation (if necessary).
On the basis of the representations and warranties and subject to the terms
and conditions of this Agreement, the Agent accepts such appointment and agrees
to consult with and advise the Company and the Association as to the matters set
forth in the letter agreement ("Letter Agreement"), dated June 13, 1996, between
the Association and Webb (a copy of which is attached hereto as Exhibit A). It
is acknowledged by the Holding Company and the Association that the Agent shall
not be obligated to purchase any Shares and shall not be obligated to take any
action which is inconsistent with any applicable law, regulation, decision or
order. Subscriptions will be offered by means of Order Forms as described in
the Prospectus. Except as provided in the paragraph below, the appointment of
the Agent hereunder shall terminate upon completion of the Subscription and
Community Offering.
Webb agrees to act as financial advisor to the Association and the Holding
Company for a period of one year following the consummation of the Conversion
for no additional fee to render general advice on financial matters, including
dividend policy, and share repurchase programs, assistance with shareholder
reporting and shareholder relations matters, general advice on mergers
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and acquisitions, and other related financial matters which are brought to the
attention of the Association or the Holding Company. Thereafter, if the parties
wish to continue the relationship, a fee will be negotiated and an agreement
with respect to specific advisory services will be entered into at that time.
Should discussions commence for a specific acquisition transaction by, or a sale
of, the Association or the Holding Company during the period in which the Agent
is acting as financial advisor to the Association and the Holding Company, the
general financial advisory relationship as set forth in this paragraph will
terminate with respect to the specific transaction. If the Association or the
Holding Company and the Agent wish to have the Agent initiate, negotiate and/or
process a specific transaction, an appropriate fee will be negotiated at that
time.
SECTION 3. REFUND OF PURCHASE PRICE. In the event that the Conversion is
not consummated for any reason, including but not limited to the inability to
sell the Common Stock during the Subscription and Community Offering (including
any permitted extension thereof), this Agreement shall terminate and any persons
who have subscribed for any of the shares of Common Stock shall have refunded to
them the full amount which has been received from such person, together with
interest at the Association's current passbook rate, from the date payment is
received as provided in the Prospectus. Upon termination of this Agreement,
neither the Agent nor the Association and the Holding Company shall have any
obligation to the other except that (i) the Holding Company and the Association,
as applicable, shall remain liable for any amounts due pursuant to Sections
4(a), 8, 10 and 11 hereof, unless the transaction is not consummated due to the
breach by the Agent of a warranty, representation or covenant; and (ii) the
Agent shall remain liable for any amounts due pursuant to Sections 10 and 11
hereof, unless the transaction is not consummated due to the breach by the
Holding Company or Association of a warranty, representation or covenant.
SECTION 4. FEES. In addition to the expenses specified in Section 8
hereof, as compensation for the Agent's services as agent under this Agreement,
the Agent will receive the following fees from the Holding Company and the
Association:
(a) A management fee to Webb in the amount of $25,000 payable in four
monthly installments of $6,250, commencing with the signing of the Letter
Agreement. Such fees shall be deemed to be earned when due. Should the
Conversion be terminated for any reason not attributable to the action or
inaction of the Agent, the Agent shall have earned and be entitled to be paid
fees accruing through the stage at which point the termination occurred.
(b) A fee of 1.5% of the aggregate Purchase Price of the Shares sold in
the Subscription Offering and Community Offering, excluding those shares
purchased by the Association's officers, directors or employees (or members of
their immediate families) or by any Tax-Qualified Employee Plan created by the
Association or Holding Company for some or all of its directors or employees.
The management fee described in Section 4(a) shall be deducted from the fee set
forth in this Section 4(b) should the prospectus used in connection with the
Conversion utilize financial statements at and as of a date other than the end
of a calendar quarter.
(c) A fee not to exceed 5.5% of the aggregate Purchase Price of the Shares
sold by Assisting Brokers in any extension of the Offerings and the Agent will
pay Assisting Brokers, including KBW, which assisted in the subscription or
purchase of Shares in the Syndicated Community Offering, a fee competitive with
gross underwriting discounts charged at such time for comparable amounts of
stock sold at a comparable price per share in similar market environments,
excluding those shares purchased by the Association's officers, directors or
employees (or members of their immediate families) or by any tax qualified or
stock based plans
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(except IRA's) or similar plan created by the Association or Holding Company for
some or all of its directors or employees. The decision to utilize Assisting
Brokers will be made jointly by the Agent on the one hand, and the Association
and the Holding Company, on the other hand. Webb agrees that in the event that
the Agent, the Association and the Holding Company agree to utilize Assisting
Brokers, McDonald and Company Securities, Inc. shall be given the first right to
participate as an Assisting Broker in distributing any remaining shares. In the
event, with respect to any stock purchases, fees are paid pursuant to this
subsection (d), such fees shall be paid in lieu of, and not in addition to,
payments to the Agent pursuant to subsection (b).
The fees specified in subsections (b) and (c) shall be payable in same-day
funds on the Closing Date.
SECTION 5. CLOSING. If the minimum number of the shares of Common Stock
permitted to be sold in the Conversion on the basis of the most recent updated
Conversion appraisal are subscribed for at or before the termination of the
Subscription and Community Offering and the other conditions to the completion
of the Conversion are satisfied, the Holding Company agrees to issue on the
Closing Date the shares of Common Stock which have been sold against payment
therefore from the escrow or other accounts maintained for the subscribers as
set forth in the Plan and to deliver certificates evidencing ownership of such
shares of Common Stock in such authorized denominations and registered in such
names as may be indicated on the subscription Order Forms directly to the
purchasers thereof as promptly as practicable after the Closing Date. The
Closing shall be held at the offices of the Holding Company, or at such other
place as shall be agreed upon among the Holding Company, the Association and the
Agent at 10:00 a.m. on a business day selected by the Holding Company which
business day shall be no less than two business days following the giving of
prior notice by the Holding Company to the Agent or at such other time as shall
be agreed upon by the Holding Company, the Association and the Agent. At the
Closing, the Association and the Holding Company shall deliver to the Agent in
same-day funds the commissions, fees and expenses owing to the Agent as set
forth in Sections 4 and 8 hereof and the opinions required hereby and other
documents deemed reasonably necessary by the Agent shall be executed and
delivered to effect the sale of the shares as contemplated hereby and pursuant
to the terms of the Prospectus. The Holding Company shall notify the Agent by
telephone, confirmed in writing, when funds shall have been received for the
minimum number of shares of the Common Stock. The date upon which the Holding
Company shall release the Shares for delivery in accordance with the terms
hereof is referred to herein as the "Closing Date."
SECTION 6A. REPRESENTATIONS AND WARRANTIES OF THE HOLDING COMPANY AND THE
ASSOCIATION. The Holding Company and the Association jointly and severally
represent and warrant to the Agent that:
(a) The Holding Company and the Association have all such power,
authority, authorizations, approvals and orders as may be required to enter into
this Agreement, to carry out the provisions and conditions hereof and to issue
and sell the capital stock of the Association to the Holding Company and the
Shares to be sold by the Holding Company as provided herein and as described in
the Prospectus. The consummation of the Conversion, the execution, delivery and
performance of this Agreement and the consummation of the transactions herein
contemplated have been duly and validly authorized by all necessary corporate
action on the part of the Holding Company and the Association and this Agreement
has been validly executed and delivered by the Holding Company and the
Association and is the valid, legal and binding agreement of the Holding Company
and the Association enforceable in accordance with its terms, except to the
extent, if any, that the provisions of Sections 10 and 11 hereof may be
unenforceable as against
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public policy, and except to the extent that such enforceability may be limited
by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of
creditors' rights generally, or the rights of creditors of financial
institutions insured by the FDIC (including the laws relating to the rights of
the contracting parties to equitable remedies).
(b) As of the Closing Date, the Association shall have completed all
conditions precedent to the Conversion in accordance with the Plan and shall
have complied in all material respects with applicable laws, regulations (except
as modified or waived in writing by the OTS), decisions and orders, including
all terms, conditions, requirements and provisions precedent to the Conversion
imposed upon it by the OTS as set forth in correspondence received from the OTS.
The Plan has been approved by the OTS, and to the best knowledge of the
Association, no person has challenged or sought to obtain judicial review of the
actions of the OTS in approving the Conversion pursuant to Section 5(i)(2)(B) of
the HOLA or any other statute or regulation.
(c) The Registration Statement was declared effective by the Commission
on_____, 1996; and no stop order has been issued with respect thereto and no
proceedings therefore have been initiated or to the best knowledge of the
Association threatened by the Commission. At the time the Registration
Statement, including the Prospectus contained therein (including any amendment
or supplement thereto), became effective, the Registration Statement complied as
to form in all material respects with the requirements of the 1933 Act and the
regulations promulgated thereunder and the Registration Statement including the
Prospectus contained therein (including any amendment or supplement thereto),
any Blue Sky Application or any Sales Information (as such terms are defined in
Section 10 hereof) authorized by the Holding Company or the Association for use
in connection with the Subscription and Community Offering did not contain an
untrue statement of a material fact or omit to state a 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 or mailed to the Commission for
filing and at the Closing Date referred to in Section 5, the Registration
Statement including the Prospectus contained therein (including any amendment or
supplement thereto) and any Blue Sky Application or any Sales Information
authorized by the Holding Company or the Association for use in connection with
the Subscription and Community Offering 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 under which they were made,
not misleading; provided, however, that the representations and warranties in
this subsection c shall not apply to statements or omissions made in reliance
upon and in conformity with written information furnished to the Holding Company
or the Association by the Agent expressly regarding the Agent for use under the
caption "The Conversion - Marketing Arrangements" or for use in any information
filed pursuant to state securities or blue sky laws or regulations expressly
regarding the Agent.
(d) The Application, including the Prospectus, was approved by the OTS on
_______, 1996; and the Proxy Statement of the Association and the Prospectus
have been approved for use by the OTS. At the time of the approval of the
Application, including the Prospectus, by the OTS (including any amendment or
supplement thereto) and at all times subsequent thereto until the Closing Date,
the Application, including the Prospectus, will comply as to form in all
material respects with the Conversion Regulations and any other applicable rules
and regulations of the OTS (except as modified or waived in writing by the OTS).
The Application, including the Prospectus (including any amendment or supplement
thereto), does not include 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
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made, not misleading; provided, however, that representations or warranties in
this subsection (d) shall not apply to statements or omissions made in reliance
upon and in conformity with written information furnished to the Association by
the Agent expressly regarding the Agent for use in the Prospectus contained in
the Application under the caption "The Conversion - Marketing Arrangements" or
for use in any information filed pursuant to state securities or blue sky laws
or regulations expressly regarding the Agent.
(e) No order has been issued by the OTS, the Commission or the FDIC (and
hereinafter reference to the FDIC shall include the SAIF), or any state
regulatory authority, 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 pending or,
to the best knowledge of the Association or the Holding Company, threatened.
(f) At the Closing Date, the Plan will have been adopted by the Board of
Directors of both the Holding Company and the Association, the Holding Company
and the Association will have completed all conditions precedent to the
Conversion specified in the Plan and the offer and sale of the Shares will have
been conducted in all material respects in accordance with the Plan, the
Conversion Regulations (except as modified or waived in writing by the OTS) and
with all other applicable laws, regulations, decisions and orders, including all
terms, conditions, requirements and provisions precedent to the Conversion
imposed upon the Holding Company or the Association by the OTS, the Commission
or any other regulatory authority and in the manner described in the Prospectus.
At the Closing Date, to the best knowledge of the Holding Company and the
Association, no person will have sought to obtain review of the final action of
the OTS in approving the Plan or in approving the Conversion Application or the
Holding Company Application pursuant to the HOLA or any other statute or
regulation.
(g) The Holding Company has filed with the OTS the Holding Company
Application and has received, as of the Closing Date, approval of its
acquisition of the Association from the OTS.
(h) Keller & Company, Inc. which prepared the appraisal, has advised the
Holding Company and the Association in writing that it is independent with
respect to each within the meaning of the Conversion Regulations.
(i) Crowe, Chizek and Company which performed certain accounting functions
and is providing letters to the Agent as set forth in Sections 9A(d) and (e)
relating to the financial tables and other data filed as part of the
Registration Statement and the Application, has advised the Holding Company and
the Association in writing that they are, with respect to the Holding Company
and the Association, independent certified public accountants within the meaning
of 12 C.F.R. Sections 563c.3 and 571.2(c)(3) and under the 1933 Act and the
regulations promulgated thereunder.
(j) Lentol, Violet, Kienitz & Company, which certified the financial
statements filed as part of the Registration Statement and the Application, has
advised the Holding Company and the Association in writing that they are, with
respect to the Holding Company and the Association, independent certified public
accountants within the meaning of 12 C.F.R. Sections 563c.3 and 571.2(c)(3) and
under the 1933 Act and the regulations promulgated thereunder.
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(k) The financial statements and the schedules and notes thereto which are
included in the Registration Statement and which are a part of the Prospectus
present fairly the financial position and retained earnings of the Association
as of the dates indicated and the results of operations and cash flows for the
periods specified. The financial statements comply in all material respects
with the applicable accounting requirements of Title 12 of the Code of Federal
Regulations and generally accepted accounting principles ("GAAP") applied on a
consistent basis during the periods presented except as otherwise noted therein
and present fairly in all material respects the information required to be
stated therein and are consistent with the most recent financial statements and
other reports filed by the Association with the OTS and the FDIC except that
accounting principles employed in such filings conform to requirements of such
authorities and not necessarily to GAAP. The other financial, statistical and
pro forma information and related notes included in the Prospectus fairly
present the information shown therein on a basis consistent with the audited and
unaudited financial statements included in the Prospectus, and as to the pro
forma adjustments, the adjustments made therein have been properly applied on
the basis described therein.
(l) Since the respective dates as of which information is given in the
Registration Statement, including the Prospectus: (i) there has not been any
material adverse change in the financial condition or in the earnings, capital,
properties or business affairs of the Holding Company or the Association or of
the Holding Company and the Association considered as one enterprise, whether or
not arising in the ordinary course of business, (ii) there has not been any
material increase in the aggregate amount of loans past due ninety (90) days or
more, real estate acquired by foreclosure or loans characterized as "in
substance foreclosure" or any change in total assets of the Association in an
amount greater than $1.0 million; nor has the Association issued any securities
or incurred any liability or obligation for borrowings other than in the
ordinary course of business, (iii) except as set forth in or contemplated by the
Prospectus, there have not been any material transactions entered into by the
Holding Company or the Association, other than those in the ordinary course of
business; and (iv) the capitalization, liabilities, assets, properties and
business of the Holding Company and the Association conform in all material
respects to the descriptions thereof contained in the Prospectus and, neither
the Association nor the Holding Company has any material liabilities of any
kind, contingent or otherwise, except as set forth in or contemplated by the
Registration Statement and the Prospectus.
(m) The Holding Company is a corporation duly organized and in good
standing under the laws of the State of Delaware, with corporate power and
authority to own its properties and to conduct its business as described in the
Prospectus, and is duly qualified to transact business and is in good standing
in each jurisdiction in which the conduct of its business requires such
qualification unless the failure to qualify in one or more of such jurisdictions
would not have a material adverse effect on the financial condition, earnings,
capital, properties or business affairs of the Holding Company and the
Association considered as a whole.
(n) The Association is a duly organized and validly existing federally
chartered savings association in mutual form and upon the Conversion will become
a duly organized and validly existing federally chartered savings bank in stock
form, in both instances duly authorized to conduct its business as described in
the Prospectus; the activities of the Association are permitted by the rules,
regulations and practices of the OTS; the Association has obtained all licenses,
permits and other governmental authorizations currently required for the conduct
of its business except those that individually or in the aggregate would not
materially adversely affect the financial condition of the Holding Company and
the Association taken as a whole; all such licenses, permits and other
governmental authorizations are in full force and effect and the
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Association is in good standing under the laws of the United States and is duly
qualified as a foreign corporation to transact business in each jurisdiction in
which failure to so qualify would have a material adverse effect upon the
financial condition, earnings, capital, properties or business affairs of the
Holding Company and the Association considered as one enterprise; all of the
issued and outstanding capital stock of the Bank after the Conversion will be
duly and validly issued and fully paid and nonassessable; and the Holding
Company will directly own all of such capital stock free and clear of any
mortgage, pledge, lien, encumbrance, claim or restriction. The Association does
not own equity securities or any equity interest in any other business
enterprise except as described in the Prospectus.
(o) The Association is a member of the Federal Home Loan Bank of
Cincinnati ("FHLB of Cincinnati"); the deposit accounts of the Association are
insured by the FDIC up to applicable limits; and upon the Conversion, the
liquidation account for the benefit of Eligible Account Holders and Supplemental
Eligible Account Holders will be duly established in accordance with the
Conversion Regulations.
(p) Upon Conversion, the authorized, issued and outstanding equity capital
of the Holding Company will be as described in the Prospectus under the caption
"Capitalization," and no shares of Common Stock have been or will be issued and
outstanding prior to the Closing Date; the shares of Common Stock to be
subscribed for in the Subscription and Community Offering have been duly and
validly authorized for issuance, and when issued and delivered by the Holding
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 nonassessable; the issuance of the shares of Common Stock is not
subject to preemptive rights; and the terms and provisions of the shares of
Common Stock will conform in all material respects to the description thereof
contained in the Prospectus. Upon issuance of the Shares, good title to the
Shares will be transferred from the Holding Company to the purchaser thereof
against payment therefore, subject to such claims as may be asserted against the
purchasers thereof by third party claimants.
(q) As of the date hereof and as of the Closing Date, neither the Holding
Company nor the Association is in violation of its certificate of incorporation
or charter, respectively, or its bylaws (and the Bank will not be in violation
of its charter or bylaws in capital stock form as of the Closing Date) or in
material default in the performance or observance of any obligation, agreement,
covenant, or condition contained in any contract, lease, loan agreement,
indenture or other instrument to which it is a party or by which it, or any of
its property, may be bound which would result in a material adverse change in
the condition (financial or otherwise), earnings, capital, properties or
business affairs of the Holding Company or Association considered as one
enterprise. The consummation of the transactions herein contemplated will not
(i) conflict with or constitute a breach of, or default under, the certificate
of incorporation and bylaws of the Holding Company, the charter and bylaws of
the Association or the Bank (in either mutual or capital stock form), or
materially conflict with or constitute a material breach of, or default under
any material contract, lease or other instrument to which the Holding Company or
the Association has a beneficial interest, or any applicable law, rule,
regulation or order that is material to the financial condition of the Holding
Company and the Association on a consolidated basis; (ii) violate any
authorization, approval, judgment, decree, order, statute, rule or regulation
applicable to the Holding Company or the Association except for such violations
which would not have a material adverse effect on the financial condition and
results of operations of the Holding Company and the Association on a
consolidated basis; or (iii) with the exception of the liquidation account
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established in the Conversion, result in the creation of any material lien,
charge or encumbrance upon any property of the Holding Company or the
Association.
(r) No material default exists, and no event has occurred which with
notice or lapse of time, or both, would constitute a material default on the
part of the Holding Company or the Association, in the due performance and
observance of any term, covenant or condition of any indenture, mortgage, deed
of trust, note, bank loan or credit agreement or any other material instrument
or agreement to which the Holding Company or the Association is a party or by
which any of them or any of their property is bound or affected in any respect
which, in any such case, is material to the Holding Company or the Association
considered as one enterprise, and such agreements are in full force and effect;
and no other party to any such agreements has instituted or, to the best
knowledge of the Holding Company or the Association, threatened any action or
proceeding wherein the Holding Company or the Association is alleged to be in
default thereunder under circumstances where such action or proceeding, if
determined adversely to the Holding Company or the Association, as the case may
be, would have a material adverse effect upon the Holding Company and the
Association considered as one enterprise.
(s) The Holding Company and the Association have good and marketable title
to all assets which are material to the business of the Holding Company and the
Association and to those assets described in the Prospectus as owned by them
free and clear of all material liens, charges, encumbrances, restrictions or
other claims, except such as are described in the Prospectus or which do not
have a material adverse effect on the business of the Holding Company and the
Association taken as a whole; and all of the leases and subleases which are
material to the business of the Holding Company and the Association, as
described in the Registration Statement or Prospectus, are in full force and
effect.
(t) Except as described in the Prospectus, the Holding Company and the
Association are not in material violation of any directive from the OTS, the
FDIC, the Commission or any other agency to make any material change in the
method of conducting their respective businesses; the Holding Company and the
Association have conducted and are conducting their respective businesses so as
to comply in all material respects with all applicable statutes and regulations
(including, without limitation, regulations, decisions, directives and orders of
the OTS, the Commission and the FDIC) and except as set forth in the Prospectus,
there is no charge, investigation, action, suit or proceeding before or by any
court, regulatory authority or governmental agency or body pending or, to the
best knowledge of either the Holding Company or the Association, threatened,
which would reasonably be expected to materially and adversely affect the
Conversion, the performance of this Agreement, or the consummation of the
transactions contemplated in the Plan as described in the Registration
Statement, or which would reasonably be expected to result in any material
adverse change in the financial condition or in the earnings, capital,
properties or business affairs of the Holding Company and the Association
considered as one enterprise.
(u) The Association has received an opinion of its special counsel,
Muldoon, Murphy & Faucette, with respect to the federal income tax consequences
of the Conversion of the Association from mutual to stock form, as described in
the Registration Statement and the Prospectus, and an opinion from Crowe, Chizek
and Company with respect to the Ohio tax consequences of the proposed
transaction; and the facts and representations upon which such opinions are
based are truthful, accurate and complete, and neither the Association nor the
Holding Company will take any action inconsistent therewith.
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(v) The Holding Company and the Association have timely filed all required
federal and state tax returns, have paid all taxes that have become due and
payable in respect of such returns, except where permitted to be extended, have
made adequate reserves for similar future tax liabilities and no deficiency has
been asserted with respect thereto by any taxing authority.
(w) No approval, authorization, consent or other order of any regulatory
or supervisory or other public authority is required for the execution and
delivery by the Holding Company and the Association of this Agreement, or the
issuance of the Shares, except for the approval of the OTS and the Commission
(which have been received) and any necessary qualification, notification, or
registration or exemption under the securities or blue sky laws of the various
states in which the shares are to be offered and except as may be required under
the rules and regulations of the NASD and/or the Nasdaq.
(x) The Holding Company and the Association have made appropriate
arrangements for placing the funds received from subscriptions for Shares in
special interest bearing accounts with the Association until all Shares are sold
and paid for, with provision for refund to the purchasers in the event that the
Conversion is not completed for whatever reason or for delivery to the Holding
Company if all Shares are sold.
(y) Prior to the Conversion, the Association was not authorized to issue
shares of capital stock and neither the Holding Company nor the Association has:
(i) issued any securities within the last 18 months (except for notes to
evidence other bank loans and reverse repurchase agreements or other
liabilities); (ii) had any material dealings with respect to sales of securities
within the 12 months prior to the date hereof with any member of the NASD, or
any person related to or associated with such member, other than discussions and
meetings relating to the proposed Subscription and Community Offering and
routine purchases and sales of U.S. government and agency and other securities;
(iii) entered into a financial or management consulting agreement except as
contemplated hereunder; or (iv) engaged any intermediary between the Agent and
the Holding Company and the Association in connection with the offering of
Shares, and no person is being compensated in any manner for such service.
(z) To the best knowledge of the Holding Company and the Association,
neither the Holding Company, the Association nor the employees of the Holding
Company or the Association have made any payment of funds of the Holding Company
or the Association as a loan to any person for the purchase of the Shares.
Any certificates signed by an officer of the Holding Company or the
Association and delivered to the Agent that refer to this Agreement shall be
deemed to be a representation and warranty by the Holding Company or the
Association to the Agent as to the matters covered thereby with the same effect
as if such representation and warranty were set forth herein.
SECTION 6B. REPRESENTATIONS AND WARRANTIES OF THE AGENT.
Webb represents and warrants to the Company and the Association that:
(i) Webb is a division of KBW, a corporation validly existing in good
standing under the laws of the State of New York with full power and authority
to provide the services to be furnished to the Association and the Holding
Company hereunder.
10
(ii) The execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby have been duly and validly authorized by
all necessary action on the part of Webb, and this Agreement has been duly and
validly executed and delivered by Webb and is the legal, valid and binding
agreement of Webb, enforceable in accordance with its terms.
(iii) Each of Webb and its employees, agents and representatives
who shall perform any of the services hereunder shall be duly authorized and
empowered, and shall have all licenses, approvals and permits necessary to
perform such services.
(iv) The execution and delivery of this Agreement by Webb, the
consummation of the transactions contemplated hereby and compliance with the
terms and provisions hereof will not conflict with, or result in a breach of,
any of the terms, provisions or conditions of, or constitute a default (or event
which with notice or lapse of time or both would constitute a default) under,
the certificate of incorporation of KBW or any agreement, indenture or other
instrument to which Webb or KBW is a party or by which it or its property is
bound.
(v) No action, suit, charge or proceeding is pending, or to the
knowledge of Webb threatened, against Webb or KBW which, if determined adversely
to Webb or KBW, would have a material adverse effect upon the ability of Webb to
perform obligations under this Agreement.
(vi) No approval, authorization, consent or other order of any
regulatory or supervisory or other public authority is required for the
execution and delivery by Webb of this Agreement, except as may have been
received.
SECTION 7A. COVENANTS OF THE HOLDING COMPANY AND THE ASSOCIATION. The
Holding Company and the Association hereby jointly and severally covenant with
the Agent as follows:
(a) The Holding Company has filed the Registration Statement with the
Commission. The Holding 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 the Agent an opportunity to
review such amendment or file any amendment or supplement to which amendment the
Agent shall reasonably object.
(b) The Association has filed the Application with the OTS. The
Association will not, at any time after the date the Application is approved,
file any amendment or supplement to the Application without providing the Agent
an opportunity to review such amendment or supplement or file any amendment or
supplement to which amendment or supplement the Agent shall reasonably object.
(c) The Holding Company and the Association will use their best efforts to
cause any post-effective amendment to the Registration Statement to be declared
effective by the Commission and any post-effective amendment to the Application
to be approved by the OTS, and will immediately upon receipt of any information
concerning the events listed below notify the Agent (i) when the Registration
Statement, as amended, has become effective; (ii) when the Application, as
amended, has been approved by the OTS; (iii) of the receipt of any comments from
the Commission, the OTS, the FDIC or any other governmental entity with respect
to the Conversion or the transactions contemplated by this Agreement; (iv) of
any request by the Commission, the OTS, the FDIC or any other governmental
entity for any amendment or supplement to the Registration Statement or the
Application or for additional information; (v) of
11
the issuance by the Commission, the OTS, the FDIC or any other governmental
agency of any order or other action suspending the Subscription and Community
Offering or the use of the Registration Statement or the Prospectus or any other
filing of the Holding Company and the Association under the Conversion
Regulations or other applicable law, or the threat of any such action; (vi) of
the issuance by the Commission, the OTS, the FDIC or any state authority of any
stop order suspending the effectiveness of the Registration Statement or of the
initiation or threat of initiation or threat of any proceedings for that
purpose; or (vii) of the occurrence of any event mentioned in paragraph (g)
below. The Holding Company and the Association will make every reasonable
effort to prevent the issuance by the Commission, the OTS, the FDIC or any state
authority of any such order and, if any such order shall at any time be issued,
to obtain the lifting thereof at the earliest possible time.
(d) The Holding Company and the Association will provide the Agent notice
of their intention to file, and reasonable time to review prior to filing any
amendment or supplement to the Holding Company Application and will not file any
such amendment or supplement to which the Agent shall reasonably object or which
shall be reasonably disapproved by the Agent.
(e) The Holding Company and the Association will deliver to the Agent
conformed copies of each of the following documents, with all exhibits: the
Application and the Holding Company Application, as originally filed and of each
amendment or supplement thereto, and the Registration Statement, as originally
filed and each amendment thereto. Further, the Holding Company and the
Association will deliver such additional copies of the foregoing documents to
the Agent as may be required for any NASD filings. In addition, the Holding
Company and the Association will also deliver to the Agent such number of copies
of the Prospectus, as amended or supplemented, as the Agent may reasonably
request.
(f) The Holding Company and the Association will comply in all material
respects with any and all terms, conditions, requirements and provisions with
respect to the Conversion and the transactions contemplated thereby imposed by
the Commission, by applicable state law and regulations, and by the 1933 Act,
the Securities Exchange Act of 1934 (the "1934 Act") and the rules and
regulations of the Commission promulgated under such statutes, to be complied
with prior to or subsequent to the Closing Date; and when the Prospectus is
required to be delivered, the Holding Company and the Association will comply in
all material respects, at their own expense, with all material requirements
imposed upon them by the OTS, the Conversion Regulations (except as modified or
waived in writing by the OTS), the FDIC, the Commission, by applicable state law
and regulations and by the 1933 Act, the 1934 Act and the rules and regulations
of the Commission promulgated under such statutes, in each case as from time to
time in force, so far as necessary to permit the continuance of sales or dealing
in shares of Common Stock during such period in accordance with the provisions
hereof and the Prospectus.
(g) If any event relating to or affecting the Holding Company or the
Association shall occur, as a result of which it is necessary, in the reasonable
opinion of counsel for the Holding Company or the Association or the Agent, to
amend or supplement the Registration Statement or the Prospectus in order to
make them not misleading in light of the circumstances existing at the time of
its use, the Holding Company and the Association will, at their expense,
forthwith prepare, file with the Commission and the OTS, and furnish to the
Agent, a reasonable number of copies of an amendment or amendments of, or a
supplement or supplements to, the Registration Statement and the Prospectus (in
form and substance satisfactory to the Agent after a reasonable time for review)
which will amend or supplement the Registration Statement and/or the Prospectus
so that as amended or supplemented it will not contain an untrue statement of a
12
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, not
misleading. For the purpose of this subsection, the Holding Company and the
Association each will furnish such information with respect to itself as the
Agent may from time to time reasonably request.
(h) Pursuant to the terms of the Plan, the Holding Company will endeavor
in good faith, in cooperation with the Agent, to register or to qualify the
Shares for offering and sale under the applicable securities laws of the
jurisdictions in which the Subscription Offering and Community Offering will be
conducted; provided, however, that the Holding 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 registered or qualified as above provided, the
Holding Company will make and file such statements and reports in each year as
are or may be required by the laws of such jurisdictions.
(i) The liquidation account for the benefit of account holders as of
December 31, 1994 and ____________, 1996, will be duly established and
maintained in accordance with the requirements of the OTS, and such Eligible
Account Holders and Supplemental Eligible Account Holders who continue to
maintain their savings accounts in the Bank will have an inchoate interest in
their pro rata portion of the liquidation account which shall have a priority
superior to that of the holders of shares of Common Stock in the event of a
complete liquidation of the Bank.
(j) The Holding Company and the Association will not sell or issue,
contract to sell or otherwise dispose of, for a period of 90 days after the date
hereof, without the Agent's prior written consent, which consent shall not be
unreasonably withheld, any shares of Common Stock other than in connection with
any plan or arrangement described in the Prospectus.
(k) For the period of three years from the date of this Agreement, the
Holding Company will furnish to the Agent upon request (i) a copy of each report
of the Holding 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 Holding Company is listed or quoted, (ii) a copy of each
report of the Holding Company mailed to holders of Common Stock or
non-confidential report filed with the Commission or the OTS or any other
supervisory or regulatory authority or any national securities exchange or
system on which any class of the securities of the Holding Company is listed or
quoted, and (iii) from time to time, such other publicly available information
concerning the Holding Company and the Association as the Agent may reasonably
request.
(l) The Holding Company and the Association will use the net proceeds from
the sale of the Common Stock in the manner set forth in the Prospectus under the
caption "Use of Proceeds."
(m) Prior to the Closing Date, the Holding Company and the Association
will inform the Agent of any event or circumstances of which it is aware as a
result of which the Registration Statement and/or Prospectus, as then
supplemented or amended, would include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein
not misleading.
(n) The Holding Company and the Association will distribute the Prospectus
or other offering materials in connection with the offering and sale of the
Common Stock only in accordance with the Conversion Regulations, the 1933 Act
and the 1934 Act and the rules and
13
regulations promulgated under such statutes, and the laws of any state in which
the shares are qualified for sale.
(o) The Holding Company shall register its Common Stock under Section
12(g) of the 1934 Act, concurrent with the effective date of the Registration
Statement. The Holding Company shall maintain the effectiveness of such
registration for not less than three years or such shorter period as permitted
by the OTS.
(p) For so long as the Holding Company's Common Stock is registered under
the 1934 Act, the Holding Company will furnish to its stockholders as soon as
practicable after the end of each fiscal year such reports and other information
as are required to be furnished to its stockholders under the 1934 Act
(including consolidated financial statements of the Holding Company and its
subsidiaries, certified by independent public accountants).
(q) The Holding Company will comply with the provisions of Rule 158 of the
1933 Act.
(r) The Holding Company will file with the Commission such reports on Form
SR as may be required pursuant to Rule 463 under the 1933 Act.
(s) The Holding Company will use its best efforts to obtain approval for
and maintain quotation of the Common Stock on the Nasdaq National Market
effective on or prior to the Closing Date.
(t) The Association will maintain appropriate arrangements for depositing
all funds received from persons mailing subscriptions for or orders to purchase
Shares in the Subscription and Community Offering on an interest bearing basis
at the rate described in the Prospectus until the Closing Date and satisfaction
of all conditions precedent to the release of the Association's obligation to
refund payments received from persons subscribing for or ordering Shares in the
Subscription and Community Offering in accordance with the Plan as described in
the Prospectus or until refunds of such funds have been made to the persons
entitled thereto or withdrawal authorizations canceled in accordance with the
Plan and as described in the Prospectus. The Association will maintain such
records of all funds received to permit the funds of each subscriber to be
separately insured by the FDIC (to the maximum extent allowable) and to enable
the Association to make the appropriate refunds of such funds in the event that
such refunds are required to be made in accordance with the Plan and as
described in the Prospectus.
(u) The Holding Company will promptly register as a savings and loan
holding company under the HOLA.
(v) The Holding Company and the Association will take such actions and
furnish such information as are reasonably requested by the Agent in order for
the Agent to ensure compliance with the "Interpretation of the Board of
Governors of the NASD on Free Riding and Withholding."
(w) The Holding Company and the Association will conduct their businesses
in compliance in all material respects with all applicable federal and state
laws, rules, regulations, decisions, directives and orders including, all
decisions, directives and orders of the Commission, the OTS and the FDIC.
14
(x) The Association will not amend the Plan of Conversion without
notifying the Agent prior thereto.
(y) The Holding Company shall provide the Agent with any information
necessary to carry out the allocation of the Shares in the event of an
oversubscription and such information shall be accurate and reliable.
(z) The Holding Company will not deliver the Shares until the Holding
Company and the Association have satisfied or caused to be satisfied each
condition set forth in Section 9A hereof, unless such condition is waived in
writing by the Agent.
SECTION 7B. COVENANT OF WEBB. Webb hereby covenants with the Company and
the Association as follows:
(a) During the period when the Prospectus is used, Webb will comply, in
all material respects and at its own expense, with all requirements imposed upon
it by the OTS and, to the extent applicable, by the 1933 Act and the rules and
regulations promulgated thereunder.
(b) Webb will distribute any Prospectus or offering materials in
connection with the offering and sale of the Common Stock only in accordance
with the Conversion Regulations and the requirements of the 1933 Act and 1934
Act and the rules and regulations promulgated thereunder.
SECTION 8. PAYMENT OF EXPENSES. Whether or not the Conversion is
completed or the sale of the Shares by the Holding Company is consummated, the
Holding Company and the Association will pay for all expenses incident to the
performance of this Agreement, including without limitation: (a) the preparation
and filing of the Application; (b) the preparation, printing, filing, delivery
and shipment of the Registration Statement, including the Prospectus, and all
amendments and supplements thereto; (c) all filing fees and expenses in
connection with the qualification or registration of the Shares for offer and
sale by the Holding Company under the securities or "blue sky" laws, including
without limitation filing fees, reasonable legal fees and disbursements of
counsel in connection therewith, and in connection with the preparation of a
blue sky law survey; and (d) the filing fees of the NASD. Any such expense
incurred by the Agent shall be reimbursed by the Holding Company and the
Association. If this Agreement is terminated in accordance with the provisions
of Sections 3, 9, or 13, the Association will pay the Agent the fees earned
pursuant to Section 4 and will reimburse the Agent for the reasonable expenses
of the Agent, including without limitation accounting, communication, legal and
travel expenses.
SECTION 9A. CONDITIONS TO THE AGENT'S OBLIGATIONS. The obligations of the
Agent hereunder and the occurrence of the Closing and the Conversion are subject
to the condition that all representations and warranties and other statements of
the Holding Company and the Association herein contained are at and as of the
commencement of the Subscription and Community Offering and at and as of the
Closing Date, true and correct in all material respects, the condition that the
Holding Company and the Association shall have performed in all material
respects all of their obligations hereunder to be performed on or before such
dates and to the following further conditions:
15
(a) The Registration Statement shall have been declared effective by the
Commission and the Application approved by the OTS not later than 5:30 p.m. on
the date of this Agreement, and no stop order or other action suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act or proceedings therefore initiated or, to the Company's or
Association's knowledge, threatened by the Commission or any state authority and
no order or other action suspending the authorization for use of the Prospectus
or the consummation of the Conversion shall have been issued or proceedings
therefore initiated or, to the Company's or Association's knowledge, threatened
by the OTS, the Commission, or any other governmental body.
(b) At the Closing Date, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Date, of Muldoon,
Murphy & Faucette, special counsel for the Holding Company and the Association,
in form and substance satisfactory to the Agent to the effect that:
(i) The Holding Company is a corporation duly organized and
validly existing and in good standing under the laws of the State of Delaware,
with corporate power and authority to own its properties and to conduct its
business as described in the Prospectus, and to their knowledge is duly
qualified to transact business and is in good standing in each jurisdiction in
which the conduct of its business requires such qualification and in which the
failure to qualify would have a material adverse effect on the financial
condition, earnings, capital, properties or business affairs of the Holding
Company and the Association considered as a whole.
(ii) The Association is validly existing federally chartered
mutual savings and loan association and, at the Closing Date, upon satisfaction
of the conditions set forth in the Plan, will become validly existing federally
chartered stock savings bank with full power and authority to own its properties
and to conduct its business as described in the Prospectus and to enter into
this Agreement and perform its obligations hereunder; the activities of the
Association as described in the Prospectus are permitted by the rules,
regulations and practices of the OTS; the issuance and sale of the capital stock
of the Association to the Holding Company has been duly and validly authorized
by all necessary corporate action on the part of the Holding Company and the
Association and, upon payment therefore in accordance with the terms of the
Plan, will be validly issued, fully paid and nonassessable; and will be owned of
record and beneficially by the Holding Company, free and clear of any mortgage,
pledge, lien, encumbrance, claim or restriction.
(iii) The Association is a member of the FHLB of Cincinnati
and the savings accounts of the Association are insured by the FDIC up to the
maximum amount allowed by law and no proceedings for the termination or
revocation of such insurance are pending or to such counsel's knowledge
threatened; and the description of the liquidation account as set forth in the
Prospectus under the captions "The Conversion - Effects of Conversion - Effects
on Liquidation Rights," and "- Liquidation Rights" has been reviewed by such
counsel and, to the extent that such information constitutes matters of law or
legal conclusions, is accurate in all material respects.
(iv) Upon Conversion, the authorized, issued and outstanding
capital stock of the Holding Company and the Association will be as set forth in
the Prospectus under the caption "Capitalization," and no shares of Common Stock
have been or will be issued and outstanding prior to the Closing Date; the
shares of Common Stock of the Holding Company to be subscribed for in the
Subscription and Community Offering have been duly and validly
16
authorized for issuance, and when issued and delivered by the Holding Company
pursuant to the Plan against payment of the consideration calculated as set
forth in the Plan, will be fully paid and nonassessable; and the issuance of the
shares of Common Stock is not subject to preemptive rights, except for the
subscription rights under the Plan.
(v) The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary action on the part of the Holding Company and the Association;
and this Agreement constitutes a valid, legal and binding obligation of each of
the Holding Company and the Association, enforceable in accordance with its
terms, except to the extent that the provisions of Sections 10 and 11 hereof may
be unenforceable as against public policy, and except to the extent that such
enforceability may be limited by bankruptcy laws, insolvency laws, or other laws
affecting the enforcement of creditors' rights generally, or the rights of
creditors of savings institutions insured by the FDIC (including the laws
relating to the rights of the contracting parties to equitable remedies).
(vi) The Plan has been duly adopted as required by the directors
of the Holding Company and the Association and members of the Association.
(vii) Subject to the satisfaction of the conditions to the
OTS approvals of the Conversion and the Holding Company Application to acquire
the Association, no further approval, registration, authorization, consent or
other order of any federal or state regulatory agency, public board or body is
required in connection with the execution and delivery of this Agreement, the
offer, sale and issuance of the Shares and the consummation of the Conversion
(other than compliance with the rules and regulations of the NASD).
(viii) The Application, including the Prospectus as filed with
the OTS, has been approved by the OTS. The OTS has issued its order of approval
under the savings and loan holding company provisions of the HOLA, and the
purchase by the Holding Company of all of the issued and outstanding capital
stock of the Association has been authorized by the OTS and no action has been
taken or is pending, or to such counsel's knowledge is threatened, to revoke any
such authorization or approval.
(ix) The Registration Statement has become effective under the
1933 Act, and to the best of such counsel's knowledge, no stop order suspending
the effectiveness of the Registration Statement has been issued, and no
proceedings for that purpose have been instituted or to the best of such
counsel's knowledge threatened.
(x) The material tax consequences of the Conversion are set
forth in the Prospectus under the caption "The Conversion-Income Tax
Consequences". The information in the Prospectus under the caption "The
Conversion-Income Tax Consequences" has been reviewed by such counsel and fairly
describes such opinions rendered by Muldoon, Murphy & Faucette and Crowe, Chizek
and Company to the Holding Company and the Association with respect to such
matters.
(xi) The terms and provisions of the shares of Common Stock
conform to the description thereof contained in the Registration Statement and
the Prospectus and such description describes in all material respects the
rights of the holders thereof; the information in the Prospectus under the
captions "Restrictions on Acquisition of the Company and the Association",
"Description of Capital Stock of the Company," and "Description of Capital Stock
17
of the Association" to the extent that they constitute matters of law or legal
conclusions has been prepared by such counsel and is accurate in all material
respects; and the forms of certificates proposed to be used to evidence the
shares of Common Stock are in due and proper form.
(xii) At the time the Application, including the Prospectus
contained therein, was approved, the Application (as amended or supplemented)
complied as to form in all material respects with the requirements of the
Conversion Regulations and all applicable laws, rules and regulations and
decisions and orders of the OTS, except as modified or waived in writing by the
OTS, (other than the financial statements, notes to financial statements,
financial tables and other financial and statistical data included therein and
the appraisal valuation as to which counsel need express no opinion). To such
counsel's knowledge, no person has sought to obtain regulatory or judicial
review of the final action of the OTS approving the Application or in approving
the Holding Company Application.
(xiii) At the time that the Registration Statement became
effective (i) the Registration Statement (as amended or supplemented) (other
than the financial statements, notes to financial statements, financial tables
or other financial and statistical data included therein and the appraisal
valuation as to which counsel need express no opinion), complied as to form in
all material respects with the requirements of the 1933 Act and the rules and
regulations promulgated thereunder; and (ii) the Prospectus (other than the
financial statements, notes to financial statements, financial tables and other
financial and statistical data included therein and the appraisal valuation, as
to which counsel need express no opinion) complied as to form in all material
respects with the requirements of the 1933 Act and the rules and regulations
promulgated thereunder.
(xiv) There are no legal or governmental proceedings pending,
or to the best of such counsel's knowledge, threatened (i) asserting the
invalidity of this Agreement or, (ii) seeking to prevent the Conversion or the
offer, sale or issuance of the Shares
(xv) The information in the Prospectus under the captions
"Regulation," "The Conversion," "Legal and Tax Opinions" and "Additional
Information" to the extent that it constitutes matters of law, summaries of
legal matters, documents or proceedings, or legal conclusions, has been prepared
by such counsel and is accurate in all material respects (except as to the
financial statements and other financial data included therein as to which such
counsel need express no opinion).
(xvi) To the best of counsel's knowledge, the Holding Company
and the Association have obtained all material licenses, permits and other
governmental authorizations required for the conduct of their respective
businesses as described in the Registration Statement and the Prospectus, except
where the failure to obtain such licenses, permits and other governmental
authorizations would not have a material adverse effect on the financial
condition of the Holding Company or the Association considered as one
enterprise, or on the earnings, capital, properties or business affairs of the
Holding Company or the Association considered as one enterprise, and all such
licenses, permits and other governmental authorizations are in full force and
effect and the Holding Company and the Association are in all material respects
complying therewith.
(xvii) To the best of such counsel's knowledge, neither the
Holding Company nor the Association is in violation of its certificate of
incorporation or its charter, respectively, or its bylaws (and the Bank will not
be in violation of its charter or bylaws in stock
18
form upon consummation of the Conversion) or to the best of such counsel's
knowledge, in violation of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which it is a party or by which it or its property may be
bound, which violation would have a material adverse effect on the financial
condition of the Holding Company or the Association considered as one
enterprise, or on the earnings, capital, properties or business affairs of the
Holding Company and the Association considered as one enterprise; the execution
and delivery of this Agreement by the Holding Company and the Association, the
incurrence of the obligations herein set forth and the consummation of the
transactions contemplated herein, to the best of such counsel's knowledge, will
not materially conflict with, constitute a material 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 Holding Company or the Association which are
material to their business considered as one enterprise, pursuant to any
contract, indenture, mortgage, loan agreement, note, lease or other instrument
to which the Holding Company or the Association is a party or by which any of
them may be bound, or to which any of the property or assets of the Holding
Company or the Association is subject. In addition, such action will not result
in any material violation of the provisions of the certificate of incorporation
or bylaws of the Holding Company or the Association or any material violation of
any applicable law, act, regulation or to such counsel's knowledge, order or
court order, writ, injunction or decree.
(xviii) To the best of counsel's knowledge, the Holding Company
and the Association are not in violation in any material respect of any
directive from the OTS or the FDIC to make any material change in the method of
conducting their business.
The opinion shall be limited to matters governed by the laws of the United
States or the State of Delaware. In rendering such opinion, such counsel may
rely (A) as to matters involving the application of laws of any jurisdiction
other than the United States or Delaware, to the extent such counsel deems
proper and specified in such opinion, upon the opinion of other counsel of good
standing, as long as such other opinion indicates that the Agent may rely on the
opinion, and (B) as to matters of fact, to the extent such counsel deems proper,
on certificates of responsible officers of the Company and the Association and
public officials; provided copies of any such opinion(s) or certificates of
public officials are delivered to you together with the opinion to be rendered
hereunder by special counsel to the Company and the Association. The opinion of
such counsel for the Company shall state that it has no reason to believe that
you are not justified in relying thereon.
(2) The letter of Muldoon, Murphy & Faucette, special counsel for the
Holding Company and the Association, in form and substance to the effect that:
In addition, during the preparation of the Registration Statement and the
Prospectus, Muldoon, Murphy & Faucette participated in conferences with certain
officers of and other representatives of the Association and the Holding
Company, representatives of the independent public accountants for the
Association and the Holding Company and representatives of the Agent at which
the contents of the Registration Statement and the Prospectus and related
matters were discussed and, although Muldoon, Murphy & Faucette is not passing
upon and does not assume the accuracy of the statements contained in the
Registration Statement and Prospectus, on the basis of the foregoing without
independent verification (relying as to materiality as to factual matters on
certificates of officers and other factual representations by the Association
and the Holding Company), nothing has come to Muldoon, Murphy & Faucette's
attention that caused
19
Muldoon, Murphy & Faucette to believe that the Registration Statement at the
time it was declared effective by the SEC or the Prospectus as of its date,
contained or contains any untrue statement of a material fact or omitted 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 (it being understood that counsel need express no comment or
opinion with respect to the financial statements, schedules and other financial
and statistical data included, or statistical or appraisal methodology employed,
in the Registration Statement or Prospectus).
(d)(1) Concurrently with the execution of this Agreement, the Agent
shall receive a letter from Crowe, Chizek and Company, dated the date hereof and
addressed to the Agent, (i) such letter confirming that Crowe, Chizek and
Company is a firm of independent public accountants within the meaning of the
Code of Professional Ethics of the American Institute of Certified Public
Accountants, the 1933 Act and the regulations promulgated thereunder and 12
C.F.R. Sections 571.2(c)(3), and no information concerning its relationship with
or interests in the Holding Company or the Association is required by the
Application or Item 10 of the Registration Statement, and stating in effect that
in Crowe, Chizek and Company's opinion the financial statements of the
Association included in the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act, the 1934
act and the related published rules and regulations of the Commission thereunder
and the Conversion Regulations and generally accepted accounting principles;
(ii) stating in effect that, on the basis of certain agreed upon procedures (but
not an audit examination in accordance with generally accepted auditing
standards) consisting of a reading of the latest available unaudited interim
financial statements of the Association prepared by the Association, a reading
of the minutes of the meetings of the Board of Directors and members of the
Association, a review of interim financial information in accordance with
Statement on Auditing Standards No. 71, and consultations with officers of the
Association responsible for financial and accounting matters, nothing came to
their attention which caused them to believe that: (A) such unaudited financial
statements, including Recent Developments, if any, are not in conformity with
generally accepted accounting principles applied on a basis substantially
consistent with that of the audited financial statements included in the
Prospectus; or (B) during the period from the date of the latest unaudited
consolidated financial statements included in the Prospectus to a specified date
not more than five business days prior to the date hereof, there was any
material increase in borrowings (defined as advances from the Federal Home Loan
Bank of Cincinnati, securities sold under agreements to repurchase and any other
form of debt other than deposits) of the Holding Company or the Association
(other than as disclosed in the Prospectus or in the ordinary course of
business); or (C) there was any decrease in retained earnings of the Association
at the date of such letter as compared with amounts shown in the latest
unaudited statement of condition included in the Prospectus or there was any
decrease in net income or net interest income of the Association for the number
of full months commencing immediately after the period covered by the latest
unaudited income statement included in the Prospectus and ended on the latest
month end prior to the date of the Prospectus or in such letter as compared to
the corresponding period in the preceding year; and (iii) stating that, in
addition to the performance of the procedures referred to in clause (ii) of this
subsection (d)(1), they have compared with the general accounting records of the
Holding Company and/or the Association, as applicable, which are subject to the
internal controls of the Holding Company and/or the Association, as applicable,
accounting system and other data prepared by the Holding Company and/or the
Association, as applicable, directly from such accounting records, to the extent
specified in such letter, such amounts and/or percentages set forth in the
Prospectus as the Agent may reasonably request, and they have found such amounts
and percentages to be in agreement therewith (subject to rounding).
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(2) Concurrently with the execution of this Agreement, the Agent shall
receive a letter from Lentol, Violet, Kienitz & Company dated the date hereof
and addressed to the Agent, confirming that Lentol, Violet, Kienitz & Company is
a firm of independent public accountants within the meaning of the Code of
Professional Ethics of the American Institute of Certified Public Accountants,
the 1933 Act and the regulations promulgated thereunder and 12 C.F.R. Sections
571.2(c)(3), and no information concerning its relationship with or interests in
the Holding Company or the Association is required by the Application or Item 10
of the Registration Statement, and stating in effect that in Lentol, Violet,
Kienitz & Company's opinion the financial statements of the Association included
in the Prospectus comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act, the 1934 Act and the related published
rules and regulations of the Commission thereunder and the Conversion
Regulations and generally accepted accounting principles.
(e) At the Closing Date, the Agent shall receive letters from Crowe,
Chizek and Company and Lentol, Violet, Kienitz & Company dated the Closing Date,
addressed to the Agent, confirming the statements made by their letters
delivered by them pursuant to subsection (d) of this Section 9A, the "specified
date" referred to in clause (ii)(B) thereof to be a date specified in such
letter, which shall not be more than five business days prior to the Closing
Date.
(f) At the Closing Date the Agent shall have been furnished with such
documents and opinions as may be required by the Agent with respect to the
issuance and sale of the Common Stock as herein contemplated and related
proceedings, or in order to evidence the accuracy of any of the representations
and warranties, or the fulfillment of any of the conditions herein contained.
(g) At the Closing Date, the Agent shall receive a certificate of the
Chief Executive Officer and Chief Financial Officer of each of the Holding
Company and the Association, dated the Closing Date, to the effect that (i) they
have carefully examined the Prospectus and at the time the Prospectus became
authorized for final 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 the light of the circumstances under which they were
made, not misleading; (ii) there has not been, since the respective dates as of
which information is given in the Prospectus, any material adverse change in the
financial condition or in the earnings, capital, properties, business prospects
or business affairs of the Holding Company or the Association, considered as one
enterprise, whether or not arising in the ordinary course of business; (iii)
the representations and warranties contained in Section 6A of this Agreement are
true and correct with the same force and effect as though made at and as of the
Closing Date; (iv) the Holding Company and the Association have complied in all
material respects with all material agreements and satisfied all conditions on
its part to be performed or satisfied at or prior to the Closing Date including
the conditions contained in this Section 9A; (v) no stop order has been issued
or, to the best of their knowledge, is threatened, by the Commission or any
other governmental body; (vi) no order suspending the Subscription and Community
Offering, the Conversion, the acquisition of all of the shares of the
Association by the Holding Company or the effectiveness of the Prospectus has
been issued and to the best of their knowledge, no proceedings for any such
purpose have been initiated or threatened by the OTS, the Commission, the FDIC,
or any other federal or state authority; (vii) to the best of their knowledge,
no person has sought to obtain regulatory or judicial review of the action of
the OTS in approving the Plan or to enjoin the Conversion.
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(h) At the Closing Date, the Agent shall receive a letter from Keller &
Company, Inc. dated as of the Closing Date, confirming its appraisal.
(i) The Holding Company or the Association shall not have sustained since
the date of the latest audited financial statements included in the Registration
Statement and Prospectus, any material loss or interference with its business
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 in the Registration Statement and the
Prospectus, and since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there shall not have been any
material change in the long-term debt of the Holding Company or the Association
other than debt incurred in relation to the purchase of Shares by the Holding
Company's or Association's tax-qualified employee plans, or any material change,
or any development involving a prospective material change in or affecting the
general affairs of, management, financial position, stockholders' equity or
results of operations of the Holding Company or the Association, otherwise than
as set forth or contemplated in the Registration Statement and the Prospectus,
the effect of which, in any such case described above, is in the Agent's
reasonable judgment sufficiently material and adverse as to make it
impracticable or inadvisable to proceed with the Subscription and Community
Offering or the delivery of the Shares on the terms and in the manner
contemplated in the Prospectus.
(j) Prior to and at the Closing Date: (i) in the reasonable opinion of the
Agent, there shall have been no material adverse change in the financial
condition or in the earnings, capital, properties or business affairs of the
Holding Company or the Association independently, or of the Holding Company and
the Association, considered as one enterprise, from that as of the latest dates
as of which such condition is set forth in the Prospectus, except as referred to
therein; (ii) there shall have been no material transaction entered into by the
Holding Company and the Association, considered as one enterprise, from the
latest date as of which the financial condition of the Holding Company or the
Association is set forth in the Prospectus other than transactions referred to
or contemplated therein; (iii) the Holding Company or the Association shall not
have received from the OTS or the FDIC any direction (oral or written) to make
any material change in the method of conducting their business with which it has
not complied in all material respects (which direction, if any, shall have been
disclosed to the Agent) and which would reasonably be expected to have a
material and adverse effect on the condition (financial or otherwise) or on the
earnings, capital, properties or business affairs of the Holding Company and the
Association considered as one enterprise; (iv) neither the Holding Company nor
the Association shall have been in default (nor shall an event have occurred
which, with notice or lapse of time or both, would constitute a default) under
any provision of any agreement or instrument relating to any material
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 Holding
Company or the Association, threatened against the Holding Company or the
Association or affecting any of their properties wherein an unfavorable
decision, ruling or finding would reasonably be expected to have a material and
adverse effect on the financial condition or on the earnings, capital,
properties or business affairs of the Holding Company and the Association,
considered as one enterprise; and (vi) the Shares have been qualified or
registered for offering and sale under the securities or blue sky laws of the
jurisdictions as to which the Holding Company and the Agent shall have agreed.
(k) At or prior to the Closing Date, the Agent shall receive (i) a copy of
the letter from the OTS authorizing the use of the Prospectus and approving the
Application, (ii) a copy of the order from the Commission declaring the
Registration Statement effective, (iii) a copy of the
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certificate of existence for the Association from the OTS, (iv) a certificate of
good standing from the State of Delaware evidencing the good standing of the
Holding Company and (v) a copy of the letter from the OTS approving the Holding
Company Application.
(l) As soon as available after the Closing Date, the Agent shall receive a
certified copy of the Association's stock charter.
(m) Subsequent to the date hereof, there shall not have occurred any of
the following: (i) a suspension or limitation in trading in securities generally
on the New York Stock Exchange or American Stock Exchange or in the
over-the-counter market, or quotations halted generally on the Nasdaq Stock
Market, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices for securities have been required by either of such exchanges
or the NASD or by order of the Commission or any other governmental authority;
(ii) a general moratorium on the operations of commercial banks or other
federally-insured financial institutions or general moratorium on the withdrawal
of deposits from commercial banks or other federally-insured financial
institutions declared by either federal or state authorities; (iii) the
engagement by the United States in hostilities which have resulted in the
declaration, on or after the date hereof, of a national emergency or war; or
(iv) a material decline in the price of equity or debt securities if the effect
of any of (i) through (iv) herein, in the Agent's reasonable judgment, makes it
impracticable or inadvisable to proceed with the Subscription and Community
Offering or the delivery of the Shares on the terms and in the manner
contemplated in the Registration Statement and the Prospectus.
SECTION 9B. CONDITIONS TO THE HOLDING COMPANY AND THE ASSOCIATION'S
OBLIGATIONS.
The obligations of the Holding Company and the Association hereunder are
subject to the accuracy of the representations, warranties and covenants of the
Agent, to the performance by the Agent of its obligations hereunder and to the
satisfaction of the conditions contained in Paragraph (a) of Section 9A
hereunder.
SECTION 10. INDEMNIFICATION.
(a) The Holding Company and the Association agree to indemnify and hold
harmless the Agent, its officers, directors, agents, servants and employees and
each person, if any, who controls the Agent 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
settlement expenses), joint or several, that the Agent or any of them may suffer
or to which the Agent and any such persons may become subject under all
applicable federal and state laws or otherwise, and to promptly reimburse the
Agent and any such persons upon written demand for any reasonable expenses
(including fees and disbursements of counsel) incurred by the Agent 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 Application, or any blue sky application or other instrument or
document of the Holding Company or the Association or based upon written
information supplied by the Holding Company or the Association filed in any
state or jurisdiction to register or qualify any or all of the Shares under the
securities laws thereof (collectively, the "Blue Sky Application"), or any
application or other document, advertisement, or communication ("Sales
Information") prepared, made or
23
executed by or on behalf of the Holding Company or the Association with its
consent or based upon written information furnished by or on behalf of the
Holding Company or the Association, whether or not filed in any jurisdiction in
order to qualify or register the Shares 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; (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 Application, any
Blue Sky Application or Sales Information or other documentation distributed in
connection with the Conversion or relating to or arising from the Conversion or
any action of the Agent acting as agent of the Holding Company or the
Association pursuant to this Agreement; 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 any
untrue material statements or alleged untrue material statements in, or material
omission or alleged material omission from, the Registration Statement (or any
amendment or supplement thereto) or the preliminary or final Prospectus (or any
amendment or supplement thereto) the Application, the Blue Sky Application or
Sales Information or other documentation distributed in connection with the
Conversion made in reliance upon and in conformity with written information
furnished to the Holding Company or the Association by the Agent with respect to
the Agent expressly for use in the Registration Statement (or any amendment or
supplement thereto) or Prospectus (or any amendment or supplement thereto) under
the caption "The Conversion - Marketing Arrangements" therein. Provided
further, that the Holding Company and the Association will not be responsible
for any loss, liability, claim, damage or expense to the extent they result
primarily from actions taken or omitted to be taken by the Agent in bad faith or
from the Agent's gross negligence, and the Agent agree to repay to the Holding
Company any amounts advanced by it to the Agent in connection with matters as to
which the Agent are found not to be entitled to indemnification hereunder.
Notwithstanding the foregoing, the indemnification provided for in this
paragraph (a) shall not apply to the Association to the extent that such
indemnification by the Association would constitute a covered transaction under
Section 23A of the Federal Reserve Act.
(b) The Agent agrees to indemnify and hold harmless the Holding Company,
its directors and officers, agents, servants and employees and each person, if
any, who controls the Holding Company 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 settlement
expenses), joint or several which they, 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 of supplement thereto), the Application, the Holding
Company Application or any Blue Sky Application or Sales Information or are
based upon the omission or alleged omission to state in any of the foregoing
documents a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Agent's obligations under this
Section 10(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) or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written
24
information furnished to the Holding Company by the Agent expressly for use
under the caption "The Conversion - Marketing Arrangements" therein.
(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 10 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 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 fees and expenses of more than
one separate firm of attorneys (and any special counsel that said firm may
retain) for all indemnified parties in connection with any one action,
proceeding or claim or separate but similar or related actions, proceedings or
claims in the same jurisdiction arising out of the same general allegations or
circumstances.
(d) The agreements contained in this Section 10 and in Section 11 hereof
and the representations and warranties of the Holding Company and the
Association set forth in this Agreement shall remain operative and in full force
and effect regardless of: (i) any investigation made by or on behalf of the
Agent or its officers, directors or controlling persons, agents or employees or
by or on behalf of the Holding Company or the Association or any officers,
directors or controlling persons, agents or employees of the Holding Company or
the Association or any controlling person, director or officer of the Holding
Company or the Association; (ii) delivery of and payment hereunder for the
Shares; or (iii) any termination of this Agreement.
SECTION 11. CONTRIBUTION.
(a) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in Section 10 is due in
accordance with its terms but is for any reason held by a court to be
unavailable from the Holding Company and the Association, or the Agent, as the
case may be, the Holding Company and the Association, or the Agent, as the case
may be, shall contribute to the aggregate losses, claims, damages and
liabilities (including any investigation, legal and other expenses incurred in
connection therewith and any amount paid in settlement of any action, suit or
proceeding of any claims asserted, but after deducting any contribution received
by the Holding Company and the Association or the Agent, as the case may be from
persons other than the other party thereto, who may also be liable for
contribution) in such proportion so that the Agent is responsible for that
portion represented by the percentage that the fees paid to the Agent pursuant
to Section 4 of this Agreement (not including expenses) bears to the gross
proceeds received by the Holding Company from the sale of the Shares in the
Subscription and Community Offering and the Holding Company and the Association
shall be responsible for the balance. If, however, the allocation provided
above is not permitted by applicable law or if the indemnified party failed to
give the notice required under Section 10 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
25
Holding Company and the Association on the one hand and the Agent 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
thereof), but also the relative benefits received by the Holding Company and
Association on the one hand and the Agent on the other from the offering, as
well as any other relevant equitable considerations. The relative benefits
received by the Holding Company and the Association on the one hand and the
Agent on the other shall be deemed to be in the same proportion as the total
gross proceeds from the Subscription and Community Offering (before deducting
expenses) received by the Holding Company bear to the total fees (not including
expenses) received by the Agent. 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 Holding Company and/or the Association on
the one hand or the Agent 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 Holding Company and the Agent agree that it
would not be just and equitable if contribution pursuant to this Section 11 were
determined by pro-rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to above in this
Section 11. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages or liabilities (or action, proceedings or claims in
respect thereof) referred to above in this Section 11 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 the Agent shall not be liable for any loss,
liability, claim, damage or expense or be required to contribute any amount
which in the aggregate exceeds the amount paid (excluding reimbursable expenses)
to the Agent under this Agreement. It is understood that the above-stated
limitation on the Agent's liability is essential to the Agent and that the Agent
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 1933
Act) shall be entitled to contribution from any person who was not found guilty
of such fraudulent misrepresentation. The obligations of the Holding Company,
the Association, and the Agent under this Section 11 and under Section 10 shall
be in addition to any liability which the Holding Company, the Association, and
the Agent may otherwise have. For purposes of this Section 11, each of the
Agent's, the Holding Company's and the Association's officers and directors and
each person, if any, who controls the Agent or the Holding Company and the
Association within the meaning of the 1933 Act and the 1934 Act shall have the
same rights to contribution as the Holding Company, the Association and the
Agent. 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 11, will notify such party from whom contribution may be
sought, but the omission to so notify such party shall not relive the party from
whom contribution may be sought from any other obligation it may have hereunder
or otherwise than under this Section 11.
SECTION 12. REPRESENTATIONS, WARRANTIES AND INDEMNITIES TO SURVIVE
DELIVERY. All representations, warranties and indemnities and other statements
contained in this Agreement, or contained in certificates of officers of the
Holding Company and the Association or the Agent submitted pursuant hereto,
shall remain operative and in full force and effect, regardless of any
termination or cancellation of this Agreement or any investigation made by or on
behalf of the Agent or controlling person, or by or on behalf of the Holding
Company and the Association and shall survive the issuance of the Shares, and
any legal representative, successor or assign of the Agent, the Association and
the Holding Company, and any indemnified person shall be entitled to the benefit
of the respective agreements, indemnities, warranties and representations.
26
SECTION 13. TERMINATION. The Agent may terminate this Agreement by giving
the notice indicated below in this Section at any time after this Agreement
becomes effective as follows:
(a) In the event the Holding Company fails to sell the minimum number of
the Shares within the period specified in accordance with the provisions of the
Plan or as required by the Conversion Regulations and applicable law, this
Agreement shall terminate upon refund by the Association to each person who has
subscribed for or ordered any of the Shares the full amount which it may have
received from such person, together with interest in accordance with Section 3,
and no party to this Agreement shall have any obligation to the other hereunder,
except as set forth in Sections 3, 4, 8, 10 and 11 hereof.
(b) If any of the conditions specified in Section 9A shall not have been
fulfilled when and as required by this Agreement, or by the Closing Date, or
waived in writing by the Agent, this Agreement and all of the Agent'sobligations
hereunder may be canceled by the Agent by notifying the Association of such
cancellation in writing or by telegram 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 3, 4, 8, 10 and 11 hereof.
(c) If Webb elects to terminate this Agreement as provided in this
section, the Holding Company and the Association shall be notified by such Agent
as provided in Section 14 hereof.
SECTION 14. NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to Webb shall be
directed to Charles Webb & Company, a Division of Keefe, Bruyette & Woods, Inc.,
at 211 Bradenton Avenue, Dublin, Ohio 43017, Attention: Mr. Charles R. Webb and
notices to the Holding Company and the Association shall be directed to 114 East
3rd Street, Delphos, Ohio 45833, Attention: Joseph R. Reinemeyer, President and
Chief Executive Officer (with a copy to William E. Donnelly, Esq., Muldoon,
Murphy & Faucette, 5101 Wisconsin Ave., N.W., Washington, D.C. 20016).
SECTION 15. PARTIES. This Agreement shall inure to the benefit of and be
binding upon the Agent and the Holding Company and the Association and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the parties hereto and their respective successors and the controlling
persons and officers and directors referred to in Sections 10 and 11 and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provisions herein contained. It is
understood and agreed that this Agreement is the exclusive agreement among the
parties, supersedes any prior Agreement among the parties and may not be varied
except by a writing signed by all parties.
SECTION 16. PARTIAL INVALIDITY. In the event that any term, provision or
covenant herein or the application thereof to any circumstances 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 circumstance 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 17. CONSTRUCTION. This Agreement shall be construed in accordance
with the laws of the State of Ohio.
27
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon this instrument
along with all counterparts will become a binding agreement between you and us
in accordance with its terms.
Very truly yours,
CITIZENS FEDERAL SAVINGS AND
LOAN ASSOCIATION OF DELPHOS DELPHOS CITIZENS BANCORP, INC.
By: By:
--------------------------------- -------------------------------
Joseph R. Reinemeyer, President Joseph R. Reinemeyer, President
and Chief Executive Officer and Chief Executive Officer
The foregoing Agency Agreement is
hereby confirmed and accepted as
of the date first set and above written.
CHARLES WEBB & COMPANY
a Division of Keefe, Bruyette & Woods, Inc.
By:
-----------------------------
Its:
-----------------------------
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