EXHIBIT 1
5,520,000 Shares
(subject to increase up to 6,348,000 shares
in the event of an increase in the pro forma market
value of the Company's Common Stock)
FloridaFirst Bancorp, Inc.
(a Florida corporation)
Common Stock
(par value $0.10 per share)
AGENCY AGREEMENT
November __, 2000
SANDLER O'NEILL & PARTNERS, L.P.
Two World Trade Center, 104th Floor
New York, New York 10048
Ladies and Gentlemen:
FloridaFirst Bancorp, Inc., a Florida corporation (the "Company"),
FloridaFirst Bancorp, MHC, a federal mutual holding company (the "MHC"),
FloridaFirst Bancorp, a federally chartered stock corporation (the "Mid-Tier
HC"), and FloridaFirst Bank, a federally chartered stock savings bank (the
"Bank"), hereby confirm their agreement with Sandler O'Neill & Partners, L.P.
("Sandler O'Neill" or the "Agent") with respect to the offer and sale by the
Company of 3,147,952 shares (subject to increase up to 3,620,179 shares in the
event of an increase in the pro forma market value of the Company's common
stock) of the Company's common stock, par value $0.10 per share (the "Common
Stock"). The shares of Common Stock to be sold by the Company in the Offerings
(as defined below) are hereinafter called the "Securities."
The Securities are being offered for sale in accordance with the Plan
of Conversion and Reorganization (the "Plan") adopted by the Boards of Directors
of the MHC, the Mid-Tier HC and the Bank pursuant to which the Bank intends to
convert from the mutual to stock holding company form of organization and issue
all of its stock to the Company pursuant to the following steps: (i) the Bank's
establishment of the Company as a Florida-chartered corporation; (ii) the
conversion of the MHC to an interim federal stock savings bank ("Interim No.
1"); (iii) the conversion of the MHC's subsidiary stock holding company,
Mid-Tier HC, to an interim federal stock savings bank ("Interim No. 2") and its
simultaneous merger into the Bank; (iv) the merger of Interim No. 1 (formerly
the MHC) into the Bank, whereupon the outstanding common stock of the Mid-Tier
HC held by the MHC will be canceled; (v) the establishment by the Company of a
third interim federal
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stock savings bank ("Interim No. 3"); (vi) the merger of Interim No. 3 with and
into the Bank, with the Bank as the surviving entity; and (vii) the sale and
exchange of Common Stock pursuant to the Plan and Office of Thrift Supervision
("OTS") regulations. As a result of the merger of Interim No. 3 with and into
the Bank, the Bank will become a wholly owned subsidiary of the Company. The
outstanding shares of common stock of the Mid-Tier HC held by persons other than
the MHC will be converted into Common Stock pursuant to an exchange ratio as
defined in the Plan, which will result in the holders of such shares receiving
and owning in the aggregate approximately the same percentage of the Common
Stock to be outstanding upon the completion of the conversion as the percentage
of Mid-Tier HC common stock owned by them in the aggregate immediately prior to
consummation of the conversion.
Pursuant to the Plan, the Company will offer to certain depositors and
borrowers of the Bank and to the Bank's tax qualified employee benefit plans,
including the Bank's employee stock ownership plan (the "ESOP") (collectively,
the "Employee Plans") rights to subscribe for the Securities in a subscription
offering (the "Subscription Offering"). To the extent Securities are not
subscribed for in the Subscription Offering, such Securities may be offered to
certain members of the general public in a community offering (the "Community
Offering"), with preference given first to persons who are Mid-Tier HC
stockholders and second to natural persons residing in Polk and Manatee
Counties, Florida. The Community Offering, which together with the Subscription
Offering, as each may be extended or reopened from time to time, are herein
referred to as the "Subscription and Community Offering," may be commenced
concurrently with, during or after, the Subscription Offering. It is currently
anticipated by the Bank and the Company that any Securities not subscribed for
in the Subscription and Community Offering will be offered, subject to Section 2
hereof, in a syndicated community offering (the "Syndicated Community
Offering"). The Subscription and Community Offering and the Syndicated Community
Offering are hereinafter referred to collectively as the "Offerings." The
conversion and reorganization of the Bank from mutual to stock holding company
form, the formation of the Company, Interim No. 1, Interim No. 2, Interim No. 3
and the related mergers, the exchange of Mid-Tier HC's public stockholders'
shares for shares of Common Stock (the "Exchange Shares"), the acquisition of
the capital stock of the Bank by the Company and the Offerings are hereinafter
referred to collectively as the "Conversion." It is acknowledged that the number
of Securities to be sold in the Conversion may be increased or decreased as
described in the Prospectus (as hereinafter defined). If the number of
Securities is increased or decreased in accordance with the Plan, the term
"Securities" shall mean such greater or lesser number, where applicable.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (No. 333-45150), including a
related prospectus, for the registration of the Securities under the Securities
Act of 1933, as amended (the "Securities Act"), has filed such amendments
thereto, if any, and such amended prospectuses as may have been required to the
date hereof by the Commission in order to declare such registration statement
effective, and will file such additional amendments thereto and such amended
prospectuses and prospectus supplements as may hereafter be required. Such
registration statement (as amended to date, if applicable, and as from time to
time amended or supplemented hereafter) and the prospectuses constituting a part
thereof (including in each case all documents incorporated or deemed to be
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incorporated by reference therein and the information, if any, deemed to be a
part thereof pursuant to the rules and regulations of the Commission under the
Securities Act, as from time to time amended or supplemented pursuant to the
Securities Act or otherwise (the "Securities Act Regulations")), are hereinafter
referred to as the "Registration Statement" and the "Prospectus," respectively,
except that if any revised prospectus shall be used by the Company in connection
with the Subscription and Community Offering or the Syndicated Community
Offering which differs from the Prospectus on file at the Commission at the time
the Registration Statement becomes effective (whether or not such revised
prospectus is required to be filed by the Company pursuant to Rule 424(b) of the
Securities Act Regulations), the term "Prospectus" shall refer to such revised
prospectus from and after the time it is first provided to the Agent for such
use.
Concurrently with the execution of this Agreement, the Company is
delivering to the Agent copies of the Prospectus of the Company to be used in
the Subscription and Community Offering. Such prospectus contains information
with respect to the Bank, the Company, the MHC, the Mid- Tier HC and the Common
Stock.
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) The Company, the Bank, the MHC and the Mid-Tier HC jointly and
severally represent and warrant to the Agent as of the date hereof as follows:
(i) The Registration Statement has been declared effective
by the Commission, no stop order has been issued with respect thereto
and no proceedings therefor have been initiated or, to the knowledge of
the Company, the MHC, the Mid-Tier HC and the Bank, threatened by the
Commission. At the time the Registration Statement became effective and
at the Closing Time referred to in Section 2 hereof, the Registration
Statement complied and will comply in all material respects with the
requirements of the Securities Act and the Securities Act Regulations
and did not and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. The
Prospectus, at the date hereof does not and at the Closing Time
referred to in Section 2 hereof will not, include 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; provided, however, that the
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with information
with respect to the Agent furnished to the Company in writing by the
Agent expressly for use in the Registration Statement or Prospectus
(the "Agent Information," which the Company, the MHC, the Mid-Tier HC
and the Bank acknowledge appears only in the first two paragraphs of
the section "The Offering- Plan of Distribution/Marketing Arrangements"
of the Prospectus).
(ii) The Company has filed with the OTS the Company's
application for approval of its acquisition of the Bank (the "Holding
Company Application") on Form H-(e)1-S promulgated under the savings
and loan holding company provisions of the Home
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Owners' Loan Act, as amended ("HOLA") and the regulations promulgated
thereunder. The Company has received written notice from the OTS of its
approval of the acquisition of the Bank, such approval remains in full
force and effect and no order has been issued by the OTS suspending or
revoking such approval and no proceedings therefor have been initiated
or, to the knowledge of the Company or the Bank, threatened by the OTS.
At the date of such approval and at the Closing Time referred to in
Section 2, the Holding Company Application complied and will comply in
all material respects with the applicable provisions of HOLA and the
regulations promulgated thereunder.
(iii) Pursuant to the rules and regulations of the OTS (the
"OTS Regulations"), the MHC has filed with the OTS an Application for
Approval of Conversion on Form AC, and has filed such amendments
thereto and supplementary materials as may have been required to the
date hereof (such application, as amended to date, if applicable, and
as from time to time amended or supplemented hereafter, is hereinafter
referred to as the "Conversion Application"). The Offerings and the
Plan have been duly adopted by the Boards of Directors of the MHC,
Mid-Tier HC and the Bank and such adoption has not since been rescinded
or revoked. The Conversion Application, which includes applications to
form and merge Interim No. 1, Interim No. 2 and Interim No. 3, has been
approved by the OTS. The Prospectus, the proxy statement for the
solicitation of proxies from MHC members for the special meeting to
approve the Plan (the "Members' Proxy Statement") and the proxy
statement for the solicitation of proxies from Mid-Tier HC stockholders
for the special meeting to approve the Plan (the "Stockholders' Proxy
Statement") all included as part of the Conversion Application have
been approved for use by the OTS, such approval remains in full force
and effect and no order has been issued by the OTS suspending or
revoking such approval and no proceedings therefor have been initiated
or, to the knowledge of the Company, the MHC, the Mid-Tier HC or the
Bank, threatened by the OTS. At the date of such approval and at the
Closing Time referred to in Section 2, the Conversion Application
complied and will comply in all material respects with the applicable
provisions of the OTS Regulations.
(iv) At the time of their use, the Members' Proxy Statement,
the Stockholders' Proxy Statement and any other proxy solicitation
materials will comply in all material respects with the applicable
provisions of the OTS Regulations and those rules and regulations of
the Commission under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), as from time to time amended or supplemented
pursuant to the Exchange Act or otherwise (the "Exchange Act
Regulations") (the Securities Act Regulations and the Exchange Act
Regulations are collectively referred to herein as the "Commission
Regulations"), and will not contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. The Company, the MHC, the Mid-Tier HC and
the Bank will promptly file the Prospectus and any supplemental sales
literature with the Commission and the OTS. The Prospectus and all
supplemental sales literature, as of the date the Registration
Statement became effective and at the Closing Time referred to in
Section 2, complied and will comply in all material respects with the
applicable
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requirements of the OTS Regulations and the Securities Act Regulations
and, at or prior to the time of their first use, will have received all
required authorizations of the OTS and Commission for use in final
form.
(v) Neither the Commission nor the OTS has, by order or
otherwise, prevented or suspended the use of the Prospectus or any
supplemental sales literature authorized by the Company, the MHC, the
Mid-Tier HC or the Bank for use in connection with the Offerings, and
no proceedings for such purposes are pending or threatened.
(vi) At the Closing Time referred to in Section 2, the
Company, the MHC, the Mid-Tier HC and the Bank will have completed the
conditions precedent to the Conversion in accordance with the Plan, the
applicable OTS Regulations and all other applicable laws, regulations,
decisions and orders, including all material terms, conditions,
requirements and provisions precedent to the Conversion imposed upon
the Company, the MHC, the Mid-Tier HC or the Bank by the OTS, the
Federal Deposit Insurance Corporation (the "FDIC"), or any other
regulatory authority, other than those which the regulatory authority
permits to be completed after the Conversion. The Conversion, the
Offerings and other transactions contemplated hereby do not and will
not require any material consent, approval, authorization or permit or
filing with any other governmental agency or regulatory authority,
except as disclosed in the Prospectus.
(vii) FinPro, Inc. (the "Appraiser"), which prepared the
valuation of the Bank as part of the Conversion, has advised the
Company, the MHC, the Mid-Tier HC and the Bank in writing that it
satisfies all requirements for an appraiser set forth in the OTS
Regulations and any interpretations or guidelines issued by the OTS or
its staff with respect thereto.
(viii) KPMG LLP, the accountants who certified the
consolidated financial statements and supporting schedules of the
Mid-Tier HC included in the Registration Statement have advised the
Company, the MHC, the Mid-Tier HC and the Bank in writing that they are
independent public accountants within the meaning of the Code of Ethics
of the American Institute of Certified Public Accountants (the
"AICPA"), and such accountants are, with respect to the Company, the
MHC, the Mid-Tier HC and the Bank, independent certified public
accountants as required by the Securities Act, the Securities Act
Regulations and OTS Regulations.
(ix) The only direct subsidiary of the MHC is the Mid-Tier HC.
The only direct subsidiary of the Mid-Tier HC is the Bank. The Bank
does not have any active subsidiaries.
(x) The consolidated financial statements and the related
notes thereto included in the Registration Statement and the Prospectus
present fairly the financial position of the MHC, the Mid-Tier HC and
the Bank at the dates indicated and the results of operations, equity
and cash flows for the periods specified, and comply as to form with
the applicable accounting requirements of the Securities Act
Regulations and the OTS Regulations; except as otherwise stated in the
Registration Statement and Prospectus, said financial statements
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have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis; and the supporting schedules
and tables included in the Registration Statement and Prospectus
present fairly the information required to be stated therein.
(xi) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein (A) there has been no material adverse change
in the financial condition, results of operations or business affairs
of the Company, the MHC, the Mid-Tier HC and the Bank considered as one
enterprise, whether or not arising in the ordinary course of business,
and (B) except for transactions specifically referred to or
contemplated in the Registration Statement and Prospectus, there have
been no transactions entered into by the Company, the MHC, the Mid-Tier
HC or the Bank, other than those in the ordinary course of business,
which are material with respect to the Company, the MHC, the Mid-Tier
HC and the Bank, considered as one enterprise.
(xii) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Florida with full corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under this
Agreement and the transactions contemplated hereby; and the Company is
duly qualified to transact business and is in good standing in the
State of Florida and in each other jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure to so qualify would not have a material adverse effect on the
financial condition, results of operations or business affairs of the
Company, the MHC, the Mid-Tier HC or the Bank, considered as one
enterprise.
(xiii) Upon consummation of the Conversion, the authorized,
issued and outstanding capital stock of the Company will be as set
forth in the Prospectus under "Capitalization" (except for subsequent
issuances, if any, pursuant to reservations, agreements or employee
benefit plans referred to in the Prospectus); no shares of Common Stock
have been or will be issued and outstanding prior to the Closing Time
referred to in Section 2; at the time of Conversion, the Securities
will have been duly authorized for issuance and, when issued and
delivered by the Company pursuant to the Plan against payment of the
consideration calculated as set forth in the Plan and stated on the
cover page of the Prospectus, will be duly and validly issued and fully
paid and nonassessable; the Exchange Shares have been duly authorized
for issuance and, when issued, will be duly and validly issued and
fully paid and nonassessable; the terms and provisions of the Common
Stock conform to all statements relating thereto contained in the
Prospectus; the certificates representing the shares of Common Stock
will conform to the requirements of applicable law and regulations; and
the issuance of the Securities and the Exchange Shares is not subject
to preemptive or other similar rights.
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(xiv) The MHC has been duly chartered and is validly existing
as a mutual holding company under the laws of the United States of
America with corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under this
Agreement; the MHC is duly qualified to transact business and in good
standing under the laws of the State of Florida and is qualified to do
business in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure to so qualify would
have a material adverse effect on the financial condition, results of
operations or business of the Company, the MHC, the Mid- Tier HC and
the Bank, considered as one enterprise; upon consummation of the
Conversion, the MHC will convert into Interim No. 1, which will merge
with and into the Bank, with the Bank being the surviving institution.
(xv) The Mid-Tier HC has been duly chartered and is validly
existing as a stock holding company under the laws of the United States
of America with corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under this
Agreement; the Mid- Tier HC is duly qualified to transact business and
is in good standing under the laws of the State of Florida and is
qualified to do business in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure to so qualify would have a material adverse effect on the
financial condition, results of operations or business of the Company,
the MHC, the Mid-Tier HC and the Bank, considered as one enterprise;
upon consummation of the Conversion, the Mid-Tier HC will convert into
Interim No. 2, which will merge with and into the Bank, with the Bank
being the surviving institution.
(xvi) The authorized capital stock of the Mid-Tier HC consists
of 18,000,000 shares of common stock, par value $0.10 per share (the
"Mid-Tier HC Common Stock") and 2,000,000 shares of preferred stock, no
par value (the "Mid-Tier Preferred Stock"), of which 5,347,297 shares
of Mid-Tier HC Common Stock and no shares of Mid-Tier HC Preferred
Stock are issued and outstanding as of the date hereof; no additional
shares of Mid-Tier HC Common Stock and no shares of Mid-Tier HC
Preferred Stock will be issued prior to the Closing Time referred to in
Section 2; the issued and outstanding shares of Mid-Tier HC Common
Stock have been duly authorized and validly issued and are fully paid
and nonassessable and have been issued in compliance with all federal
and state securities laws; the MHC owns 3,049,024 shares of Mid-Tier HC
Common Stock beneficially and of record free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity; the
terms and provisions of the Mid-Tier HC Common Stock conform to all
statements relating thereto contained in the Prospectus; at the time of
the consummation of the Conversion, immediately following the mergers
of Interim No. 1 and Interim No. 2 with and into the Bank, the Bank
shall merge with Interim No. 3, with the Bank being the surviving
institution, and the shares of common stock of Interim No. 3 held by
the Company shall be converted into shares of Bank Common Stock ("Bank
Common Stock") on a one-for-one basis, and all such Bank Common Stock
will be owned beneficially and of record by the
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Company free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity.
(xvii) The Bank has been duly organized and is validly
existing as a federally chartered savings bank in stock form and upon
consummation of the Conversion will continue to be a federally
chartered savings bank in stock form, in both instances with full
corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Prospectus and to enter
into and perform its obligations under this Agreement and the
transactions contemplated thereby; the Company, the MHC, the Mid- Tier
HC and the Bank have obtained all licenses, permits and other
governmental authorizations currently required for the conduct of their
respective businesses or required for the conduct of their respective
businesses as contemplated by the Holding Company Application and the
Conversion Application, except where the failure to obtain such
licenses, permits or other governmental authorizations would not have a
material adverse effect on the financial condition, results of
operations or business affairs of the Company, the MHC, the Mid-Tier HC
and the Bank, considered as one enterprise; all such licenses, permits
and other governmental authorizations are in full force and effect and
the Company, the MHC, the Mid-Tier HC and the Bank are in all material
respects in compliance therewith; neither the Company, the MHC, the
Mid-Tier HC nor the Bank has received notice of any proceeding or
action relating to the revocation or modification of any such license,
permit or other governmental authorization which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, might have a material adverse effect on the financial
condition, results of operations or business affairs of the Company,
the MHC, the Mid-Tier HC and the Bank, considered as one enterprise;
and the Bank is duly qualified to transact business and is in good
standing under the laws of the United States and in each jurisdiction
in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure to so qualify would have a material adverse effect on
the financial condition, results of operations or business affairs of
the Company, the MHC, the Mid-Tier HC and the Bank, considered as one
enterprise.
(xviii) The Bank is a member in good standing of the Federal
Home Loan Bank of Atlanta; the deposit accounts of the Bank are insured
by the FDIC up to the applicable limits and upon consummation of 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 requirements of the OTS Regulations.
The Bank is a "qualified thrift lender" within the meaning of 12 U.S.C.
Section 1467a(m).
(xix) The authorized capital stock of the Bank on the date
hereof is _____ shares of common stock, [par value $.10 per share], and
_______ shares of preferred stock [par value $.10 per share], and the
issued and outstanding capital stock of the Bank is ______ shares, all
of which are owned beneficially and of record by the Mid-Tier HC free
and clear of any security interest, mortgage, pledge, lien, encumbrance
or legal or equitable claim. Upon consummation of the Conversion, the
authorized capital stock of the Bank will be ______ shares of common
stock, [par value $.10 per share], and _______ shares of
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preferred stock, [par value $.10 per share] (the "Bank Preferred
Stock"), and the issued and outstanding capital stock of the Bank will
be ________ shares of Bank Common Stock; and no additional shares of
Bank Common Stock or any shares of Bank Preferred Stock will be issued
on or after the date hereof and prior to the Closing Time referred to
in Section 2 hereof. As of the Closing Time referred to Section 2
hereof, all of the issued and outstanding capital stock of the Bank
will be duly authorized, validly issued and fully paid and
nonassessable and have been issued in compliance with all federal and
state securities laws. The shares of Bank Common Stock to be issued to
the Company will have been duly authorized for issuance and, when
issued and delivered by the Bank pursuant to the Plan against payment
of the consideration described in the Plan and in the Prospectus, will
be duly and validly issued and fully paid and nonassessable, and all
such Bank Common Stock will be owned beneficially and of record by the
Company, free and clear of any security interest, mortgage, pledge,
lien, encumbrance or legal or equitable claim; the terms and provisions
of the Bank Common Stock and the Bank Preferred Stock conform to all
statements relating thereto contained in the Prospectus, and the
certificates representing the shares of the Bank Common Stock will
conform with the requirements of applicable laws and regulations; and
the issuance of the Bank Common Stock is not subject to preemptive or
similar rights.
(xx) From the date of their formation until the Closing
Time, neither Interim No. 1, Interim No. 2 nor Interim No. 3 will be in
violation of their respective charter or bylaws, nor will either
Interim No. 1, Interim No. 2 nor Interim No. 3 engage in any business
other than in connection with organizational matters and actions taken
in connection with the consummation of the Conversion.
(xxi) The Company, the MHC, the Mid-Tier HC and the Bank have
taken all corporate action necessary for them to execute, deliver and
perform this Agreement and the transactions contemplated hereby, and
this Agreement has been duly executed and delivered by, and is the
valid and binding agreement of, the Company, the MHC, the Mid-Tier HC
and the Bank, enforceable against each of them in accordance with its
terms, except as may be limited by bankruptcy, insolvency or other laws
affecting the enforceability of the rights of creditors generally and
judicial limitations on the right of specific performance and except as
the enforceability of indemnification and contribution provisions may
be limited by applicable securities laws.
(xxii) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus
and prior to the Closing Time, except as otherwise may be indicated or
contemplated therein, none of the Company, the MHC, the Mid-Tier HC or
the Bank will have (A) issued any securities or incurred any liability
or obligation, direct or contingent, or borrowed money, except
borrowings in the ordinary course of business from the same or similar
sources and in similar amounts as indicated in the Prospectus, or (B)
entered into any transaction or series of transactions which is
material in light of the business of the Company, the MHC, the Mid-Tier
HC and the Bank, considered as one enterprise, excluding the
origination, purchase and sale of loans or the purchase or sale of
investment securities or mortgaged-backed securities in the ordinary
course of business.
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(xxiii) No approval of any regulatory or supervisory or other
public authority is required in connection with the execution and
delivery of this Agreement or the issuance of the Securities that has
not been obtained and a copy of which has been delivered to the Agent,
except as may be required under the securities laws of various
jurisdictions.
(xxiv) None of the Company, the MHC, the Mid-Tier HC or the
Bank is in violation of their respective charters or bylaws; and none
of the Company, the MHC, the Mid-Tier HC or the Bank is in default (nor
has any event occurred which, with notice or lapse of time or both,
would constitute a default) in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to
which the Company, the MHC, the Mid- Tier HC or the Bank is a party or
by which it or any of them may be bound, or to which any of the
property or assets of the Company, the MHC, the Mid-Tier HC or the Bank
is subject, except for such defaults that would not, individually or in
the aggregate, have a material adverse effect on the financial
condition, results of operations or business of the Company, the MHC,
the Mid-Tier HC and the Bank considered as one enterprise; and there
are no contracts or documents of the Company, the MHC, the Mid-Tier HC
or the Bank which are required to be filed as exhibits to the
Registration Statement or the Conversion Application which have not
been so filed.
(xxv) The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated herein
do not and will not conflict with or constitute a breach of, or default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company, the MHC, the
Mid-Tier HC or the Bank pursuant to, any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which the Company,
the MHC, the Mid-Tier HC or the Bank is a party or by which it or any
of them may be bound, or to which any of the property or assets of the
Company, the MHC, the Mid-Tier HC or the Bank is subject, except for
such conflicts, breaches or defaults that would not, individually or in
the aggregate, have a material adverse effect on the financial
condition, results of operations or business affairs of the Company,
the MHC, the Mid-Tier HC and the Bank, considered as one enterprise;
nor will such action result in any violation of the provisions of the
respective charters or bylaws of the Company, the MHC, the Mid-Tier HC
or the Bank, or any applicable law, administrative regulation or
administrative or court decree.
(xxvi) No labor dispute with the employees of the Company, the
MHC, the Mid- Tier HC or the Bank exists or, to the knowledge of the
Company, the MHC, the Mid-Tier HC or the Bank, is imminent or
threatened; and the Company, the MHC, the Mid-Tier HC and the Bank are
not aware of any existing or threatened labor disturbance by the
employees of any of its principal suppliers or contractors which might
be expected to result in any material adverse change in the financial
condition, results of operations or business affairs of the Company,
the MHC, the Mid-Tier HC and the Bank considered as one enterprise.
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(xxvii) Each of the Company, the MHC, the Mid-Tier HC and the
Bank has good and marketable title to all properties and assets for
which ownership is material to the business of the Company, the MHC,
the Mid-Tier HC or the Bank and to those properties and assets
described in the Prospectus as owned by them, free and clear of all
liens, charges, encumbrances or restrictions, except such as are
described in the Prospectus or are not material in relation to the
business of the Company, the MHC, the Mid-Tier HC or the Bank,
considered as one enterprise; and all of the leases and subleases
material to the business of the Company, the MHC, the Mid-Tier HC or
the Bank under which the Company, the MHC, the Mid-Tier HC or the Bank
hold properties, including those described in the Prospectus, are valid
and binding agreements of the Company, the MHC, the Mid-Tier HC or the
Bank, enforceable in accordance with their terms.
(xxviii) None of the Company, the MHC, the Mid-Tier HC or the
Bank is in violation of any order or directive from the OTS, the
Commission or any regulatory authority to make any material change in
the method of conducting its respective businesses; the MHC and its
subsidiaries have conducted and are conducting their business so as to
comply in all material respects with all applicable statutes,
regulations and administrative and court decrees (including, without
limitation, all regulations, decisions, directives and orders of the
OTS and the Commission).
(xxix) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now pending,
or, to the knowledge of the Company, the MHC, the Mid-Tier HC or the
Bank, threatened, against or affecting the Company, the MHC, the
Mid-Tier HC or the Bank which is required to be disclosed in the
Registration Statement (other than as disclosed therein), or which
might result in any material adverse change in the financial condition,
results of operations or business affairs of the Company, the MHC, the
Mid-Tier HC and the Bank, considered as one enterprise, or which might
materially and adversely affect the properties or assets thereof, the
performance of this Agreement or the consummation of the Conversion;
all pending legal or governmental proceedings to which the Company, the
MHC, the Mid-Tier HC or the Bank is a party or of which any of their
respective property or assets is the subject which are not described in
the Registration Statement, including ordinary routine litigation
incidental to the business, are considered in the aggregate not
material; and there are no contracts or documents of the Company, MHC,
Mid-Tier HC or Bank which are required to be filed as exhibits to the
Registration Statement or Conversion Application which have not been so
filed.
(xxx) The Company, MHC, Mid-Tier HC and Bank have obtained (i)
an opinion of its counsel, Malizia Spidi & Fisch, PC, with respect to
the legality of the Securities and the Exchange Shares to be issued and
the federal income tax consequences of the Conversion and (ii) the
opinion of McClurg, Watson, Griffith & Bush, P.A. with respect to the
state and local tax consequences of the Conversion (including franchise
tax, sales or use tax, license fee on foreign corporations, stock
transfer tax, real property transfer gain tax and real estate transfer
tax), copies of which are filed as exhibits to the Registration
Statement; all material aspects of the aforesaid opinions are
accurately summarized in the Prospectus; the facts and
11
representations upon which such opinions are based are truthful,
accurate and complete in all material respects; and neither the
Company, the MHC, the Mid-Tier HC nor the Bank has taken or will take
any action inconsistent therewith.
(xxxi) The Company is not required to be registered under the
Investment Company Act of 1940, as amended.
(xxxii) All of the loans represented as assets on the most
recent consolidated financial statements or consolidated selected
financial information of the Mid-Tier HC included in the Prospectus
meet or are exempt from all requirements of federal, state or local law
pertaining to lending, including without limitation truth in lending
(including the requirements of Regulations Z and 12 C.F.R. Part 226 and
Section 563.99), real estate settlement procedures, consumer credit
protection, equal credit opportunity and all disclosure laws applicable
to such loans, except for violations which, if asserted, would not
result in a material adverse effect on the financial condition, results
of operations or business of the Company, the MHC, the Mid-Tier HC and
the Bank, considered as one enterprise.
(xxxiii) To the knowledge of the Company, the MHC, the
Mid-Tier HC and the Bank, with the exception of the intended loan to
the Bank's ESOP by the Company to enable the ESOP to purchase
securities in an amount up to 8.0% of the Securities sold in the
Conversion, none of the Company, the MHC, the Mid-Tier HC, the Bank or
their employees has made any payment of funds of the Company, the MHC,
the Mid-Tier HC or the Bank as a loan for the purchase of the Common
Stock or made any other payment of funds prohibited by law, and no
funds have been set aside to be used for any payment prohibited by law.
(xxxiv) The Company, the MHC, the Mid-Tier HC and the Bank are
in compliance in all material respects with the applicable financial
recordkeeping and reporting requirements of the Currency and Foreign
Transaction Reporting Act of 1970, as amended, and the rules and
regulations thereunder.
(xxxv) None of the Company, the MHC, the Mid-Tier HC or the
Bank nor any properties owned or operated by the Company, the MHC, the
Mid-Tier HC or the Bank is in violation of or liable under any
Environmental Law (as defined below), except for such violations or
liabilities that, individually or in the aggregate, would not have a
material adverse effect on the financial condition, results of
operations or business affairs of the Company, the MHC, the Mid-Tier HC
and the Bank, considered as one enterprise. There are no actions, suits
or proceedings, or demands, claims, notices or investigations
(including, without limitation, notices, demand letters or requests for
information from any environmental agency) instituted or pending, or to
the knowledge of the Company, the MHC, the Mid-Tier HC or the Bank
threatened, relating to the liability of any property owned or operated
by the Company, the MHC, the Mid-Tier HC or the Bank, under any
Environmental Law, except for such actions, suits or proceedings, or
demands, claims, notices or investigations that, individually or in the
aggregate, would not have a material adverse effect
12
on the financial condition, results of operations or business affairs
of the Company, MHC, Mid-Tier HC and the Bank, considered as one
enterprise. For purposes of this subsection, the term "Environmental
Law" means any federal, state, local or foreign law, statute,
ordinance, rule, regulation, code, license, permit, authorization,
approval, consent, order, judgment, decree, injunction or agreement
with any regulatory authority relating to (i) the protection,
preservation or restoration of the environment (including, without
limitation, air, water, vapor, surface water, groundwater, drinking
water supply, surface soil, subsurface soil, plant and animal life or
any other natural resource), and/or (ii) the use, storage, recycling,
treatment, generation, transportation, processing, handling, labeling,
production, release or disposal of any substance presently listed,
defined, designated or classified as hazardous, toxic, radioactive or
dangerous, or otherwise regulated, whether by type or by quantity,
including any material containing any such substance as a component.
Such laws include, without limitation, the Resource Conservation and
Recovery Act, 42 U.S.C.ss.ss.6901, et seq.; the Emergency Planning and
Community Right to Know Act, 42 U.S.C.ss.ss.11001, et seq.; the
Occupational Safety and Health Act, 29 U.S.C.ss.ss.651, et seq., the
Comprehensive Environmental Responsibility, Compensation and Liability
Act, 42 U.S.C.ss.ss.9601, et seq. including the Asset Conservation
Lender Liability, and Deposit Insurance Protection Act of 1996,ss.42
U.S.C.ss.9607(n); the Clean Air Act, 42 U.S.C.ss.ss.7401, et seq.; the
Hazardous Materials Transportation Act, 49 U.S.C.ss.ss.1801, et seq.;
the Toxic Substance Control Act, 15 U.S.C.ss.ss.2601, et seq.; the
Federal Insecticide Fungicide and Rodenticide Act, 7 U.S.C. ss.ss.136,
et seq.; the Clean Water Act, 33 U.S.C.ss.ss.1251, et seq.; and the
Safe Drinking Water Act, 42 U.S.C.ss.ss.300f, et seq.; all as amended
and effective on the date hereof or the Closing Time, as the case may
be.
(xxxvi) The Company, the MHC, the Mid-Tier HC and the Bank
have filed all federal, state and local income and franchise tax
returns required to be filed and have made timely payments of all taxes
shown as due and payable in respect of such returns, and no deficiency
has been asserted with respect thereto by any taxing authority.
(xxxvii) The Company has received all approvals required to
consummate the Conversion, and to have the Securities and Exchange
Shares quoted on the Nasdaq National Market effective as of the Closing
Time referred to in Section 2 hereof.
(xxxviii) The Company has filed a registration statement for
the Securities and Exchange Shares under Section 12(g) of the Exchange
Act and such registration statement was declared effective concurrent
with the effectiveness of the Registration Statement.
(b) Any certificate signed by any officer of the Company, the MHC, the
Mid-Tier HC or the Bank and delivered to either of the Agent or counsel for the
Agent shall be deemed a representation and warranty by the Company, the MHC, the
Mid-Tier HC or the Bank to the Agent as to the matters covered thereby.
13
SECTION 2. APPOINTMENT OF SANDLER O'NEILL; SALE AND DELIVERY OF THE
SECURITIES; CLOSING. On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company
hereby appoints Sandler O'Neill as its Agent to consult with and advise the
Company, and to assist the Company with the solicitation of subscriptions and
purchase orders for Securities, in connection with the Company's sale of Common
Stock in the Offerings. On the basis of the representations and warranties
herein contained, and subject to the terms and conditions herein set forth,
Sandler O'Neill accepts such appointment and agrees to use its best efforts to
assist the Company with the solicitation of subscriptions and purchase orders
for Securities in accordance with this Agreement; provided, however, that the
Agent shall not be obligated to take any action which is inconsistent with any
applicable laws, regulations, decisions or orders. The services to be rendered
by Sandler O'Neill pursuant to this appointment include the following: (i)
consulting as to the securities marketing implications of any aspect of the Plan
or related corporate documents; (ii) reviewing with the Board of Directors the
Appraiser's appraisal of the Common Stock, particularly with regard to aspects
of the appraisal involving the methodology employed; (iii) reviewing all
offering documents, including the Prospectus, stock order form and related
offering materials (it being understood that preparation and filing of such
documents is the sole responsibility of the Company and the Bank and their
counsel); (iv) assisting in the design and implementation of a marketing
strategy for the Offerings; (v) assisting the Company, the MHC, the Mid-Tier HC
and the Bank in obtaining all requisite regulatory approvals; (vi) assisting
Bank management in scheduling and preparing for meetings with potential
investors and broker-dealers; and (vii) providing such other general advice and
assistance as may be requested to promote the successful completion of the
Conversion.
The appointment of the Agent hereunder shall terminate upon the earlier
to occur of (a) forty-five (45) days after the last day of the Subscription and
Community Offering, unless the Company and the Agent agree in writing to extend
such period and the OTS agrees to extend the period of time in which the
Securities may be sold, or (b) the receipt and acceptance of subscriptions and
purchase orders for all of the Securities, or (c) the completion of the
Syndicated Community Offering.
If any of the Securities remain available after the expiration of the
Subscription and Community Offering, at the request of the Company and the Bank,
Sandler O'Neill will seek to form a syndicate of registered brokers or dealers
("Selected Dealers") to assist in the solicitation of purchase orders of such
Securities on a best efforts basis, subject to the terms and conditions set
forth in a selected dealers' agreement (the "Selected Dealers' Agreement"),
substantially in the form set forth in Exhibit A to this Agreement. Sandler
O'Neill will endeavor to limit the aggregate fees to be paid by the Company, the
MHC, the Mid-Tier HC and the Bank under any such Selected Dealers' Agreement to
an amount competitive with gross underwriting discounts charged at such time for
underwritings of comparable amounts of stock sold at a comparable price per
share in a similar market environment; provided, however, that the aggregate
fees payable to Sandler O'Neill and Selected Dealers shall not exceed 6.5% of
the aggregate Actual Purchase Price of the Securities sold by such Selected
Dealers. Sandler O'Neill will endeavor to distribute the Securities among the
Selected Dealers in a fashion which best meets the distribution objective of the
Company and the Bank and the requirements of the Plan, which may result in
limiting the allocation of stock to certain
14
Selected Dealers. It is understood that in no event shall Sandler O'Neill be
obligated to act as a Selected Dealer or to take or purchase any Securities.
In the event the Company is unable to sell at least the total minimum
of the Securities, as set forth on the cover page of the Prospectus, within the
period herein provided, this Agreement shall terminate and the Company shall
refund to any persons who have subscribed for any of the Securities the full
amount which it may have received from them, together with interest as provided
in the Prospectus, and no party to this Agreement shall have any obligation to
the others hereunder, except for the obligations of the Company, the MHC, the
Mid-Tier HC and the Bank as set forth in Sections 4, 6(a), 6(c), 6(d), 6(e) and
7 hereof and the obligations of the Agent as provided in Sections 6(b) and 7
hereof. Appropriate arrangements for placing the funds received from
subscriptions for Securities or other offers to purchase Securities in special
interest-bearing accounts with the Bank until all Securities are sold and paid
for were made prior to the commencement of the Subscription Offering, with
provision for refund to the purchasers as set forth above, or for delivery to
the Company if all Securities are sold.
If at least the total minimum of Securities, as set forth on the cover
page of the Prospectus, are sold and provided OTS approves such amount, the
Company agrees to issue or have issued the Securities sold and to release for
delivery certificates for such Securities at the Closing Time against payment
therefor by release of funds from the special interest-bearing accounts referred
to above. The closing shall be held at the offices of Malizia Spidi & Fisch, PC,
at 10:00 a.m., local time, or at such other place and time as shall be agreed
upon by the parties hereto, on a business day to be agreed upon by the parties
hereto. The Company shall notify the Agent by telephone, confirmed in writing,
when funds shall have been received for all the Securities. Certificates for
Securities shall be delivered directly to the purchasers thereof in accordance
with their directions. Notwithstanding the foregoing, certificates for
Securities purchased through Selected Dealers shall be made available to the
Agent for inspection at least 48 hours prior to the Closing Time at such office
as the Agent shall designate. The hour and date upon which the Company shall
release for delivery all of the Securities, in accordance with the terms hereof,
is herein called the "Closing Time."
The Company will pay any stock issue and transfer taxes which may be
payable with respect to the sale of the Securities.
In addition to the reimbursement of the expenses specified in Section 4
hereof, the Agent will receive the following compensation for its services
hereunder:
(a) three-quarters percent (0.75%) of the aggregate Actual Purchase
Price (as defined in the Prospectus) of the Securities sold in the Subscription
and Community Offering, excluding in each case shares purchased by (i) any
employee benefit plan of the Company or the Bank established for the benefit of
their respective directors, officers and employees, and (ii) any director,
officer or employee of the Company or the Bank or members of their immediate
families (which term shall mean parents, grandparents, spouse, siblings,
children and grandchildren); and
15
(b) with respect to any Securities sold by a National Association of
Securities Dealers, Inc. ("NASD") member firm (other than Sandler O'Neill) under
the Selected Dealers' Agreement in the Syndicated Community Offering, (i) the
compensation payable to Selected Dealers under any Selected Dealers' Agreement,
(ii) any sponsoring dealer's fees; and (iii) a management fee to Sandler O'Neill
of one and one-quarter percent (1.25%) of the Aggregate Purchase Price. Any fees
payable to Sandler O'Neill for Securities sold by Sandler O'Neill under any such
agreement shall be limited to an aggregate of one and one-quarter percent
(1.25%) of the Actual Purchase Price of such Securities.
If this Agreement is terminated by the Agent in accordance with the
provisions of Section 9(a) hereof or the Conversion is terminated by the
Company, no fee shall be payable by the Company to Sandler O'Neill; however, the
Company shall reimburse the Agent for all of its reasonable out-of-pocket
expenses incurred prior to termination, including the reasonable fees and
disbursements of counsel for the Agent in accordance with the provisions of
Section 4 hereof.
All fees payable to the Agent hereunder shall be payable in immediately
available funds at Closing Time, or upon the termination of this Agreement, as
the case may be. In recognition of the long lead times involved in the
conversion process, the Bank agrees to make advance payments to the Agent in the
aggregate amount of $50,000, $25,000 of which has been previously paid and the
remaining $25,000 of which shall be payable upon commencement of the
Subscription Offering, which shall be credited against any fees or reimbursement
of expenses payable hereunder.
SECTION 3. COVENANTS OF THE COMPANY, THE MHC, THE MID-TIER HC AND THE
BANK. The Company, the MHC, the Mid-Tier HC and the Bank covenant with the Agent
as follows:
(a) The Company, the MHC, the Mid-Tier HC and the Bank will prepare and
file such amendments or supplements to the Registration Statement, the
Prospectus, the Conversion Application, the Members' Proxy Statement and the
Stockholders' Proxy Statement as may hereafter be required by the Commission
Regulations or the OTS Regulations or as may hereafter be requested by the
Agent. Following completion of the Subscription and Community Offering, in the
event of a Syndicated Community Offering, the Company, the MHC, the Mid-Tier HC
and the Bank will (i) promptly prepare and file with the Commission a
post-effective amendment to the Registration Statement relating to the results
of the Subscription and Community Offering, any additional information with
respect to the proposed plan of distribution and any revised pricing information
or (ii) if no such post-effective amendment is required, will file with the
Commission a prospectus or prospectus supplement containing information relating
to the results of the Subscription and Community Offering and pricing
information pursuant to Rule 424 of the Securities Act Regulations, in either
case in a form acceptable to the Agent. The Company, the MHC, the Mid-Tier HC
and the Bank will notify the Agent immediately, and confirm the notice in
writing, (i) of the effectiveness of any post-effective amendment of the
Registration Statement, the filing of any supplement to the Prospectus and the
filing of any amendment to the Conversion Application, (ii) of the receipt of
any comments from the OTS or the Commission with respect to the transactions
contemplated by this Agreement or the Plan, (iii) of any request by the
Commission or the OTS for
16
any amendment to the Registration Statement or the Conversion Application or any
amendment or supplement to the Prospectus or for additional information, (iv) of
the issuance by the OTS of any order suspending the Offerings or the use of the
Prospectus or the initiation of any proceedings for that purpose, (v) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that purpose,
and (vi) of the receipt of any notice with respect to the suspension of any
qualification of the Securities for offering or sale in any jurisdiction. The
Company, the MHC, the Mid-Tier HC and the Bank will make every reasonable effort
to prevent the issuance of any stop order and, if any stop order is issued, to
obtain the lifting thereof at the earliest possible moment.
(b) The Company, the MHC, the Mid-Tier HC and the Bank will give the
Agent notice of its intention to file or prepare any amendment to the Conversion
Application or Registration Statement (including any posteffective amendment) or
any amendment or supplement to the Prospectus (including any revised prospectus
which the Company proposes for use in connection with the Syndicated Community
Offering of the Securities which differs from the prospectus on file at the
Commission at the time the Registration Statement becomes effective, whether or
not such revised prospectus is required to be filed pursuant to Rule 424(b) of
the Securities Act Regulations), will furnish the Agent with copies of any such
amendment or supplement a reasonable amount of time prior to such proposed
filing or use, as the case may be, and will not file any such amendment or
supplement or use any such prospectus to which the Agent or counsel for the
Agent may object.
(c) The Company, the MHC, the Mid-Tier HC and the Bank will deliver to
the Agent as many signed copies and as many conformed copies of the Conversion
Application and the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein) as the Agent may reasonably request, and from time to time
such number of copies of the Prospectus as the Agent may reasonably request.
(d) During the period when the Prospectus is required to be delivered,
the Company, the MHC, the Mid-Tier HC and the Bank will comply, at their own
expense, with all requirements imposed upon them by the OTS, by the applicable
OTS Regulations, as from time to time in force, and by the Securities Act, the
Securities Act Regulations, the Exchange Act, and the rules and regulations of
the Commission promulgated thereunder, including, without limitation, Regulation
M under the Exchange Act, 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.
(e) If any event or circumstance shall occur as a result of which it is
necessary, in the opinion of counsel for the Agent, to amend or supplement the
Registration Statement or Prospectus in order to make the Prospectus not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, the Company, the MHC, the Mid-Tier HC and the Bank
will forthwith amend or supplement the Registration Statement or Prospectus (in
form and substance satisfactory to counsel for the Agent) so that, as so amended
or supplemented, the Registration Statement or Prospectus will not include 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
existing at the time it is delivered to a purchaser, not misleading, and the
Company, the MHC, the Mid-Tier HC
17
and the Bank will furnish to the Agent a reasonable number of copies of such
amendment or supplement. For the purpose of this subsection, the Company, the
MHC, the Mid-Tier HC and the Bank will each furnish such information with
respect to itself as the Agent may from time to time reasonably request.
(f) The Company, the MHC, the Mid-Tier HC and the Bank will take all
necessary action, in cooperation with the Agent, to qualify the Securities for
offering and sale under the applicable securities laws of such states of the
United States and other jurisdictions as the OTS Regulations may require and as
the Agent and the Company have agreed; provided, however, that neither the
Company, the MHC, the Mid-Tier HC nor the Bank shall be obligated to file any
general consent to service of process or to qualify as a foreign corporation in
any jurisdiction in which it is not so qualified. In each jurisdiction in which
the Securities have been so qualified, the Company, the MHC, the Mid-Tier HC and
the Bank will file such statements and reports as may be required by the laws of
such jurisdiction to continue such qualification in effect for a period of not
less than one year from the effective date of the Registration Statement.
(g) The Company authorizes Sandler O'Neill and any Selected Dealers to
act as agent of the Company in distributing the Prospectus to persons entitled
to receive subscription rights and other persons to be offered Securities having
record addresses in the states or jurisdictions set forth in a survey of the
securities or "blue sky" laws of the various jurisdictions in which the
Offerings will be made (the "Blue Sky Survey").
(h) The Company will make generally available to its security holders
as soon as practicable, but not later than 60 days after the close of the period
covered thereby, an earnings statement (in form complying with the provisions of
Rule 158 of the Securities Act Regulations) covering a twelve month period
beginning not later than the first day of the Company's fiscal quarter next
following the "effective date" (as defined in said Rule 158) of the Registration
Statement.
(i) During the period ending on the third anniversary of the expiration
of the fiscal year during which the closing of the transactions contemplated
hereby occurs, the Company will furnish to its stockholders as soon as
practicable after the end of each such fiscal year an annual report (including
consolidated statements of financial condition and consolidated statements of
income, stockholders' equity and cash flows, certified by independent public
accountants) and, as soon as practicable after the end of each of the first
three quarters of each fiscal year (beginning with the fiscal quarter ending
after the effective date of the Registration Statement), consolidated summary
financial information of the Company and the Bank for such quarter in reasonable
detail. In addition, such annual report and quarterly consolidated summary
financial information shall be made public through the issuance of appropriate
press releases at the same time or prior to the time of the furnishing thereof
to stockholders of the Company.
(j) During the period ending on the third anniversary of the expiration
of the fiscal year during which the closing of the transactions contemplated
hereby occurs, the Company will furnish to the Agent (i) as soon as publicly
available, a copy of each report or other document of the Company furnished
generally to stockholders of the Company or furnished to or filed with the
18
Commission under the Exchange Act or any national securities exchange or system
on which any class of securities of the Company is listed, and (ii) from time to
time, such other information concerning the Company as the Agent may reasonably
request.
(k) The Company, the MHC, the Mid-Tier HC and the Bank will conduct the
Conversion in all material respects in accordance with the Plan, the OTS
Regulations, the Commission Regulations and all other applicable regulations,
decisions and orders, including all applicable terms, requirements and
conditions precedent to the Conversion imposed upon the Company, the MHC, the
Mid-Tier HC or the Bank by the OTS and the Commission.
(l) The Company, the MHC, the Mid-Tier HC and the Bank will comply, at
their own expense, with all requirements imposed by the Commission and the OTS,
or pursuant to the applicable Commission Regulations and OTS Regulations, as
from time to time in force.
(m) The Company will promptly inform the Agent upon its receipt of
service with respect to any material litigation or administrative action
instituted with respect to the Conversion or the Offerings.
(n) Each of the Company and the Bank will use the net proceeds received
by it from the sale of the Securities in the manner specified in the Prospectus
under "Use of Proceeds."
(o) The Company will report the use of proceeds from the Offerings on
its first periodic report filed pursuant to Sections 13(a) and 15(d) of the
Exchange Act and on any subsequent periodic reports as may be required pursuant
to Rule 463 of the Securities Act Regulations.
(p) For a period of not less than three years following the Conversion,
the Company will not deregister the Securities. The Company will file with the
Nasdaq National Market all documents and notices required for the quotation of
the Securities and Exchange Shares on the Nasdaq National Market.
(q) The Company and the Bank 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 National Association of Securities Dealers, Inc.'s
"Interpretation Relating to Free-Riding and Withholding."
(r) Other than in connection with any employee benefit plan or
arrangement described in the Prospectus, the Company will not, without the prior
written consent of the Agent, sell or issue, contract to sell or otherwise
dispose of, any shares of Common Stock other than the Securities or Exchange
Shares for a period of 180 days following the Closing Time.
(s) During the period beginning on the date hereof and ending on the
later of the third anniversary of the Closing Time or the date on which the
Agent receives full payment in satisfaction of any claim for indemnification or
contribution to which it may be entitled pursuant to Sections 6 or 7,
respectively, neither the Company, the MHC, the Mid-Tier HC nor the Bank shall,
without the
19
prior written consent of the Agent, take or permit to be taken any action that
could result in the Bank Common Stock becoming subject to any security interest,
mortgage, pledge, lien or encumbrance.
(t) The Company, the MHC, the Mid-Tier HC and the Bank will comply with
the conditions imposed by or agreed to with the OTS in connection with its
approval of the Conversion Application.
(u) During the period ending on the first anniversary of the Closing
Time, the Bank will comply with all applicable law and regulation necessary for
the Bank to continue to be a "qualified thrift lender" within the meaning of 12
U.S.C. Section 1467a(m).
(v) The Company shall not deliver the Securities or the Exchange Shares
until the Company, the MHC, the Mid-Tier HC and the Bank have satisfied each
condition set forth in Section 5 hereof, unless such condition is waived by the
Agent.
(w) The Mid-Tier HC, Company or the Bank will furnish to Sandler
O'Neill as early as practicable prior to the Closing Date, but no later than two
(2) full business days prior thereto, a copy of the latest available unaudited
interim consolidated financial statements of the Mid-Tier HC which have been
read by KPMG LLP, as stated in their letters to be furnished pursuant to
subsections (e) and (f) of Section 5 hereof.
SECTION 4. PAYMENT OF EXPENSES. The Company, the MHC, the Mid-Tier HC
and the Bank jointly and severally agree to pay all expenses incident to the
performance of their obligations under this Agreement, including but not limited
to (i) the cost of obtaining all securities and bank regulatory approvals, (ii)
the preparation and filing of the Registration Statement and the Conversion
Application as originally filed and of each amendment thereto, (iii) the
preparation, issuance and delivery of the certificates for the Securities
purchased in the Offerings and the Exchange Shares, (iv) the fees and
disbursements of the Company's, the MHC's, the Mid-Tier HC's and the Bank's
counsel, conversion agent, accountants, appraiser and other advisors, (v) the
qualification of the Securities under securities laws in accordance with the
provisions of Section 3(f) hereof, including filing fees and the fees and
disbursements of counsel in connection therewith and in connection with the
preparation of the Blue Sky Survey, (vi) the printing and delivery to the Agent
of copies of the Registration Statement as originally filed and of each
amendment thereto and the printing and delivery of the Prospectus and any
amendments or supplements thereto to the purchasers in the Offerings and the
Agent, (vii) the printing and delivery to the Agent of copies of a Blue Sky
Survey, and (viii) the fees and expenses incurred in connection with the listing
of the Securities and the Exchange Shares on the Nasdaq National Market. In the
event the Agent incurs any such fees and expenses on behalf of the Company, the
MHC, the Mid-Tier HC or the Bank, the Bank will reimburse the Agent for such
fees and expenses whether or not the Conversion is consummated; provided,
however, that the Agent shall not incur any substantial expenses on behalf of
the Company, the MHC, the Mid-Tier HC or the Bank pursuant to this Section
without the prior approval of the Bank.
20
The Company, the MHC, the Mid-Tier HC and the Bank jointly and
severally agree to pay certain expenses incident to the performance of the
Agent's obligations under this Agreement, regardless of whether the Conversion
is consummated, including (i) the filing fees paid or incurred by the Agent in
connection with all filings with the NASD, and (ii) all reasonable out-of-pocket
expenses incurred by the Agent relating to the Offerings, including without
limitation, fees and expenses of the Agent's counsel (up to a maximum of
$50,000), advertising, promotional, syndication and travel expenses, up to a
maximum amount of $65,000, provided, however, that Agent shall document such
expenses to the reasonable satisfaction of the Bank. All fees and expenses to
which the Agent is entitled to reimbursement under this paragraph of this
Section 4 shall be due and payable upon receipt by the Company, the MHC, the
Mid-Tier HC or the Bank of a written accounting therefor setting forth in
reasonable detail the expenses incurred by the Agent.
SECTION 5. CONDITIONS OF AGENT'S OBLIGATIONS. The Company, the MHC, the
Mid- Tier HC, the Bank and the Agent agree that the issuance and the sale of
Securities and the issuance of the Exchange Shares and all obligations of the
Agent hereunder are subject to the accuracy of the representations and
warranties of the Company, the MHC, the Mid-Tier HC and the Bank herein
contained as of the date hereof and the Closing Time, to the accuracy of the
statements of officers and directors of the Company, the MHC, the Mid-Tier HC
and the Bank made pursuant to the provisions hereof, to the performance by the
Company, the MHC, the Mid-Tier HC and the Bank of their obligations hereunder,
and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued under the Securities Act or proceedings
therefor initiated or threatened by the Commission, no order suspending the
Offerings or authorization for final use of the Prospectus shall have been
issued or proceedings therefor initiated or threatened by the Commission or the
OTS and no order suspending the sale of the Securities in any jurisdiction shall
have been issued.
(b) At Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of Closing Time,
of Malizia Spidi & Fisch, PC, counsel for the Company, the
MHC, the Mid-Tier HC and the Bank, in form and substance
satisfactory to counsel for the Agent, to the effect that:
(i) The Company has been duly incorporated
and is validly existing as a corporation in good
standing under the laws of the State of Florida; the
MHC has been duly incorporated and is validly
existing as a federal mutual holding company in good
standing under the laws of the United States; the
Mid-Tier HC has been duly incorporated and is validly
existing as a federally-chartered holding company in
good standing under the laws of the United States.
21
(ii) Each of the Company, the MHC and the
Mid-Tier HC has full corporate power and authority to
own, lease and operate its properties and to conduct
its business as described in the Registration
Statement and Prospectus and to enter into and
perform its obligations under this Agreement.
(iii) Each of the Company, the MHC and the
Mid-Tier HC is duly qualified as a foreign
corporation to transact business and is in good
standing in the State of Florida and in each other
jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of
property or the conduct of business, except where the
failure to so qualify would not have a material
adverse effect upon the financial condition, results
of operations or business affairs of the Company, the
MHC, the Mid-Tier HC and the Bank, considered as one
enterprise.
(iv) Upon consummation of the Conversion,
the authorized, issued and outstanding capital stock
of the Company will be within the range set forth in
the Prospectus under "Capitalization" and, no shares
of Common Stock have been or will be issued and
outstanding prior to the Closing Time.
(v) The Securities have been duly and
validly authorized for issuance and sale; the
Exchange Shares have been duly and validly authorized
for issuance; the Securities, when issued and
delivered by the Company pursuant to the Plan against
payment of the consideration calculated as set forth
in the Plan, will be duly and validly issued and
fully paid and nonassessable; the Exchange Shares,
when issued, will be duly and validly issued and
fully paid and nonassessable.
(vi) The issuance of the Securities and the
Exchange Shares is not subject to preemptive or other
similar rights arising by operation of law or, to
such counsel's knowledge, otherwise.
(vii) The Bank has been at all times since
the date hereof and prior to the Closing Time, duly
organized and validly existing under the laws of the
United States of America as a federally chartered
savings bank in stock form, with full corporate power
and authority to own, lease and operate its
properties and to conduct its business as described
in the Registration Statement and the Prospectus and
to enter into and perform its obligations under this
Agreement; and the Bank is duly qualified as a
foreign corporation in each jurisdiction in which the
failure to so qualify would have a material adverse
effect upon the financial condition, results of
operations or business affairs of the Company, the
MHC, the Mid-Tier HC and the Bank, considered as one
enterprise.
22
(viii) The Bank is a member in good standing
of the Federal Home Loan Bank of Atlanta and the
deposit accounts of the Bank are insured by the FDIC
up to the applicable limits.
(ix) Upon consummation of the Conversion,
all of the issued and outstanding capital stock of
Interim No. 3 will have been duly authorized and
validly issued and fully paid and nonassessable, and
all such capital stock will be converted into shares
of Bank Common Stock upon the merger of Interim No. 3
with the Bank and is not subject to any security
interest, mortgage, pledge, lien, encumbrance, claim
or equity.
(x) Upon consummation of the Conversion, all
of the issued and outstanding capital stock of the
Bank, will be duly authorized and validly issued and
fully paid and nonassessable, and all such capital
stock will be owned beneficially and of record by the
Company free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity.
(xi) The OTS has duly approved the Holding
Company Application and the Conversion Application
(including the formation and merger of Interim No. 1,
Interim No. 2 and Interim No. 3); such approvals
remain in full force and effect and no action is
pending, or to the best of such counsel's knowledge,
threatened respecting the Holding Company Application
or the Conversion Application or the acquisition by
the Company of all of the Bank's issued and
outstanding capital stock; the Holding Company
Application and the Conversion Application comply
with the applicable requirements of the OTS, includes
all documents required to be filed as exhibits
thereto, and is, to the best of such counsel's
knowledge and information, truthful, accurate and
complete; and the Company is duly authorized to
become a savings and loan holding company and is duly
authorized to own all of the issued and outstanding
capital stock of the Bank to be issued pursuant to
the Plan.
(xii) At the time of their use, both the
Members' Proxy Statement and the Stockholders' Proxy
Statement complied as to form in all material
respects with the requirements of the OTS Regulations
and the Exchange Act Regulations, and did not contain
an untrue statement of a material fact or omit to
state a material fact required to be stated therein
or necessary in order to make the statements therein,
in the light of the circumstances under which they
were made, not misleading.
(xiii) The execution and delivery of this
Agreement and the consummation of the transactions
contemplated hereby, (A) have been duly and validly
authorized by all necessary action on the part of
each of the Company, the MHC, the Mid-Tier HC and the
Bank, and this Agreement
23
constitutes the legal, valid and binding agreement of
each of the Company, the MHC, the Mid-Tier HC and the
Bank, enforceable in accordance with its terms,
except as rights to indemnity and contribution
hereunder may be limited under applicable law (it
being understood that such counsel may avail itself
of customary exceptions concerning the effect of
bankruptcy, insolvency or similar laws and the
availability of equitable remedies); (B) will not
result in any violation of the provisions of the
charter or bylaws of the Company, the MHC, the
Mid-Tier HC or the Bank; and, (C) will not conflict
with or constitute a breach of, or default under, and
no event has occurred which, with notice or lapse of
time or both, would constitute a default under, or
result in the creation or imposition of any lien,
charge or encumbrance, that, individually or in the
aggregate, would have a material adverse effect on
the financial condition, results of operations or
business affairs of the Company, the MHC, the
Mid-Tier HC and the Bank, considered as one
enterprise, upon any property or assets of the
Company, the MHC, the Mid-Tier HC or the Bank
pursuant to any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which
the Company, the MHC, the Mid-Tier HC or the Bank is
a party or by which any of them may be bound, or to
which any of the property or assets of the Company,
the MHC, the Mid-Tier HC or the Bank or the MHC is
subject.
(xiv) The Prospectus has been duly
authorized by the OTS for final use pursuant to the
OTS Regulations and no action has been taken or is
pending, or to the best of such counsel's knowledge,
is threatened, by the OTS to revoke such
authorization.
(xv) The Registration Statement is effective
under the Securities Act and no stop order suspending
the effectiveness of the Registration Statement has
been issued under the Securities Act or, proceedings
therefor initiated or threatened by the Commission.
(xvi) No further approval, authorization,
consent or other order of any public board or body is
required in connection with the execution and
delivery of this Agreement, the issuance of the
Securities and the Exchange Shares and the
consummation of the Conversion, except as may be
required under the securities or Blue Sky laws of
various jurisdictions as to which no opinion need be
rendered.
(xvii) At the time the Registration
Statement became effective, the Registration
Statement (other than the financial statements and
statistical data included therein, as to which no
opinion need be rendered) complied as to form in all
material respects with the requirements of the
Securities Act and the Securities Act Regulations and
the OTS Regulations.
24
(xviii) The Common Stock conforms to the
description thereof contained in the Prospectus, and
the form of certificate used to evidence the Common
Stock is in due and proper form and complies with all
applicable statutory requirements.
(xix) There are no legal or governmental
proceedings pending or, to the best of such counsel's
knowledge, threatened against or affecting the
Company, the MHC, the Mid-Tier HC or the Bank which
are required, individually or in the aggregate, to be
disclosed in the Registration Statement and
Prospectus, other than those disclosed therein, and
all pending legal or governmental proceedings to
which the Company, the MHC, the Mid-Tier HC or the
Bank is a party or to which any of their property is
subject which are not described in the Registration
Statement, including ordinary routine litigation
incidental to the business, are, considered in the
aggregate, not material.
(xx) The information in the Prospectus under
"Risk Factors -Our corporate documents and
regulations of the Office of Thrift Supervision may
make it difficult for anyone to acquire us" and
-"Banking reform legislation may increase
competition," "Dividend Policy," "Taxation,"
"Regulation," "The Conversion and Reorganization -
Effects of the Conversion and Reorganization," and "-
Federal and State Tax Consequences of the Conversion
and Reorganization," "Restrictions on Acquisition of
FloridaFirst Bancorp, Inc.," "Description of Capital
Stock," and "Legal and Tax Opinions" to the extent
that it constitutes matters of law, summaries of
legal matters, documents or proceedings, or legal
conclusions, has been reviewed by them and is
complete and accurate in all material respects.
(xxi) To the best of such counsel's
knowledge, there are no contracts, indentures,
mortgages, loan agreements, notes, leases or other
instruments required to be described or referred to
in the Registration Statement and Prospectus or to be
filed as exhibits thereto other than those described
or referred to therein or filed as exhibits thereto,
the descriptions thereof or references thereto are
correct, and no default exists, and no event has
occurred which, with notice or lapse of time or both,
would constitute a default, in the due performance or
observance of any material obligation, agreement,
covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or
other instrument so described, referred to or filed.
(xxii) The Plan has been duly authorized by
the Boards of Directors of the Company, the MHC, the
Mid-Tier HC and the Bank and, the OTS's approval of
the Plan remains in full force and effect; to the
best of such counsel's knowledge, the Company, the
MHC, the Mid-Tier HC and the
25
Bank have conducted the Conversion in all material
respects in accordance with applicable requirements
of the OTS Regulations, the Plan and all other
applicable regulations, decisions and orders
thereunder, including all material applicable terms,
conditions, requirements and conditions precedent to
the Conversion imposed upon the Company, the MHC, the
Mid-Tier HC or the Bank by the OTS and, no order has
been issued by the OTS to suspend the Conversion or
the Offerings and no action for such purpose has been
instituted or, to the best of such counsel's
knowledge, threatened by the OTS; and, to the best of
such counsel's knowledge, no person has sought to
obtain review of the final action of the OTS in
approving the Plan, the Conversion Application or the
Holding Company Application.
(xxiii) To the best of such counsel's
knowledge, the Company, the MHC, the Mid-Tier HC and
the Bank have obtained all licenses, permits and
other governmental approvals and authorizations
currently required for the conduct of their
respective businesses as described in the
Registration Statement and Prospectus, and all such
licenses, permits and other governmental
authorizations are in full force and effect, and the
Company, the MHC, the Mid-Tier HC and the Bank are in
all material respects complying therewith.
(xxiv) (A) Neither the Company, the MHC, the
Mid-Tier HC nor the Bank is in violation of their
respective charters or bylaws and (B) to the best of
such counsel's knowledge, the Company, the MHC, the
Mid-Tier HC and the Bank are not in default (nor has
any event occurred which, with notice or lapse of
time or both, would constitute a default) in the
performance or observance of any obligation,
agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which the Company, the
MHC, the Mid-Tier HC or the Bank is a party or by
which the Company, the MHC, the Mid-Tier HC or the
Bank or any of their property may be bound.
(xxv) The Company is not required to be
registered as an investment company under the
Investment Company Act of 1940.
(xxvi) The stockholders of the Mid-Tier HC
do not have dissenters' rights or any other rights to
dissent from the Conversion and receive the fair
value of their shares of Mid-Tier HC common stock
under Federal law.
(2) The favorable opinion, dated as of Closing Time,
of Muldoon, Murphy & Faucette LLP, counsel for the Agent,
with respect to the matters set forth in Section 5(b)(1)(i),
(iv), (v), (vi) (solely as to preemptive rights arising by
operation of law), (xviii) and (xix) and such other matters
as the Agent may reasonably require.
26
(3) In addition to giving their opinions required by
subsections (b)(l) and (b)(2), respectively, of this
Section, Malizia Spidi & Fisch, PC and Muldoon, Murphy &
Faucette LLP shall each additionally state that nothing has
come to their attention that would lead them to believe that
the Registration Statement (except for financial statements
and schedules and other financial, appraisal or statistical
data included therein, as to which counsel need make no
statement), at the time it became effective, contained an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading or that the
Prospectus (except for financial statements and schedules
and other financial, appraisal or statistical data included
therein, as to which counsel need make no statement), at the
time the Registration Statement became effective or at
Closing Time, included an untrue statement of a material
fact or omitted to state a material fact necessary in order
to make the statements therein, in the light of the
circumstances under which they were made, not misleading. In
giving their opinions, Malizia Spidi & Fisch, PC and
Muldoon, Murphy & Faucette LLP may rely as to matters of
fact on certificates of officers and directors of the
Company, the MHC, the Mid-Tier HC and the Bank and
certificates of public officials and, in giving their
opinions with respect to the matters set forth in paragraphs
(iii), (xiii)(C), (xxi) and (xxiv)(B), may rely as to
matters of Florida law on the opinion of Hahn, McClurg,
Watson, Griffith & Bush, P.A. which opinion shall be in form
and substance satisfactory to counsel for the Agent, and
Muldoon, Murphy & Faucette LLP may also rely on the opinion
of Malizia Spidi & Fisch, PC
(c) At Closing Time referred to in Section 2, the Company, the MHC, the
Mid-Tier HC and the Bank shall have completed in all material respects the
conditions precedent to the Conversion in accordance with the Plan, the
applicable OTS Regulations and all other applicable laws, regulations, decisions
and orders, including all terms, conditions, requirements and provisions
precedent to the Conversion imposed upon the Company, the MHC, the Mid-Tier HC
or the Bank by the OTS, or any other regulatory authority other than those which
the OTS permits to be completed after the Conversion.
(d) At Closing Time, there shall not have been, since the date hereof
or since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change in the
financial condition, results of operations or business affairs of the Company,
the MHC, the Mid-Tier HC and the Bank, considered as one enterprise, whether or
not arising in the ordinary course of business, and the Agent shall have
received a certificate of the President and Chief Executive Officer of the
Company, of the MHC, of the Mid-Tier HC and of the Bank and the chief financial
or chief accounting officer of the Company, of the MHC, of the Mid- Tier HC and
of the Bank, dated as of Closing Time, to the effect that (i) there has been no
such material adverse change, (ii) there shall have been no material transaction
entered into by the Company, the MHC, the Mid-Tier HC or the Bank from the
latest date as of which the financial condition of the Company, the MHC, the
Mid-Tier HC or the Bank, as set forth in the Registration Statement and the
Prospectus other than transactions referred to or contemplated therein and
27
transactions in the ordinary course of business, (iii) neither the Company, the
MHC, the Mid-Tier HC nor the Bank shall have received from the OTS any order or
direction (oral or written) to make any material change in the method of
conducting its business with which it has not complied (which order or
direction, if any, shall have been disclosed in writing to the Agent) or which
materially and adversely would affect the business, financial condition or
results of operations of the Company, the MHC, the Mid-Tier HC or the Bank,
considered as one enterprise, (iv) the representations and warranties in Section
1 hereof are true and correct with the same force and effect as though expressly
made at and as of the Closing Time, (v) each of the Company, the MHC, the
Mid-Tier HC and the Bank have complied with all agreements and satisfied all
conditions on their part to be performed or satisfied at or prior to Closing
Time, (vi) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
initiated or threatened by the Commission and (vii) no order suspending the
Subscription and Community Offering or Syndicated Community Offering or the
authorization for final use of the Prospectus has been issued and no proceedings
for that purpose have been initiated or threatened by the OTS and no person has
sought to obtain regulatory or judicial review of the action of the OTS in
approving the Plan in accordance with the OTS Regulations nor has any person
sought to obtain regulatory or judicial review of the action of the OTS in
approving the Conversion Application.
(e) At the time of the execution of this Agreement, the Agent shall
have received from KPMG LLP a letter dated such date, in form and substance
satisfactory to the Agent, to the effect that: (i) they are independent public
accountants with respect to the Company, the MHC, the Mid- Tier HC and the Bank
within the meaning of the Code of Ethics of the AICPA, the Securities Act and
the Securities Act Regulations and the OTS Regulations; (ii) it is their opinion
that the consolidated financial statements and supporting schedules included in
the Registration Statement and covered by their opinions therein comply as to
form in all material respects with the applicable accounting requirements of the
Securities Act and the Securities Act Regulations; (iii) based upon limited
procedures as agreed upon by the Agent and KPMG LLP set forth in detail in such
letter, nothing has come to their attention which causes them to believe that
(A) the unaudited consolidated financial statements and supporting schedules of
the Mid-Tier HC included in the Registration Statement do not comply as to form
in all material respects with the applicable accounting requirements of the
Securities Act, the Securities Act Regulations and the OTS Regulations or are
not presented in conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of the audited
consolidated financial statements included in the Registration Statement and the
Prospectus, (B) the unaudited amounts of net interest income and net income set
forth under "Selected Financial Highlights" in the Registration Statement and
Prospectus do not agree with the amounts set forth in unaudited consolidated
financial statements as of and for the dates and periods presented under such
captions or such amounts were not determined on a basis substantially consistent
with that used in determining the corresponding amounts in the audited financial
statements included in the Registration Statement, (C) at a specified date not
more than five (5) days prior to the date of this Agreement, there has been any
increase in the consolidated long term or short term debt of the Mid-Tier HC or
any decrease in consolidated total assets, the allowance for loan losses, total
deposits or net worth of the Mid-Tier HC, in each case as compared with the
amounts shown in the June 30, 2000 consolidated statements of financial
conditions included in the Registration Statement or, (D) during the period from
June 30, 2000 to a specified
28
date not more than five (5) days prior to the date of this Agreement, there were
any decreases, as compared with the corresponding period in the preceding fiscal
year, in total interest income, net interest income, net interest income after
provision for loan losses, income before income tax expense or net income of the
Mid-Tier HC, except in all instances for increases or decreases which the
Registration Statement and the Prospectus disclose have occurred or may occur;
and (iv) in addition to the examination referred to in their opinions and the
limited procedures referred to in clause (iii) above, they have carried out
certain specified procedures, not constituting an audit, with respect to certain
amounts, percentages and financial information which are included in the
Registration Statement and Prospectus and which are specified by the Agent, and
have found such amounts, percentages and financial information to be in
agreement with the relevant accounting, financial and other records of the
Company, the MHC, the Mid-Tier HC and the Bank identified in such letter.
(f) At Closing Time, the Agent shall have received from KPMG LLP a
letter, dated as of Closing Time, to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (e) of this
Section, except that the specified date referred to shall be a date not more
than five (5) days prior to Closing Time.
(g) At Closing Time, the Securities and Exchange Shares shall have been
approved for quotation on the Nasdaq National Market upon notice of issuance.
(h) At Closing Time, the Agent shall have received a letter from the
Appraiser, dated as of the Closing Time, confirming its appraisal.
(i) At Closing Time, counsel for the Agent shall have been furnished
with such documents and opinions as they may require for the purpose of enabling
them to pass upon the issuance and sale of the Securities and Exchange Shares as
herein contemplated and related proceedings, or in order to evidence the
accuracy of any of the representations or warranties, or the fulfillment of any
of the conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Securities and Exchange Shares as
herein contemplated shall be satisfactory in form and substance to the Agent and
counsel for the Agent.
(j) At any time prior to Closing Time, (i) there shall not have
occurred any material adverse change in the financial markets in the United
States or elsewhere or any outbreak of hostilities or escalation thereof or
other calamity or crisis the effect of which, in the judgment of the Agent, are
so material and adverse as to make it impracticable to market the Securities or
to enforce contracts, including subscriptions or orders, for the sale of the
Securities, and (ii) trading generally on either the American Stock Exchange,
the New York Stock Exchange or the Nasdaq Stock Market shall not have been
suspended, and minimum or maximum prices for trading shall not have been fixed,
or maximum ranges for prices for securities have been required, by either of
said Exchanges or by order of the Commission or any other governmental
authority, and a banking moratorium shall not have been declared by either
Federal, Florida or New York authorities.
29
SECTION 6. INDEMNIFICATION.
(a) The Company, the MHC, the Mid-Tier HC and the Bank, jointly and
severally, agree to indemnify and hold harmless the Agent, each person, if any,
who controls the Agent, within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act, and its respective partners, directors,
officers, employees and agents as follows:
(i) from and against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, related to or arising out
of the Conversion or any action taken by the Agent where acting as
agent of the Company, the MHC, the Mid-Tier HC or the Bank or otherwise
as described in Section 2 hereof;
(ii) from and against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, based upon or arising out
of any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment thereto), or
the omission or alleged omission therefrom of a material fact required
to be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Members' Proxy Statement,
Stockholders' Proxy Statement or Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(iii) from and against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever described in
clauses (i) or (ii) above, if such settlement is effected with the
written consent of the Company, the MHC, the Mid- Tier HC or the Bank,
which consent shall not be unreasonably withheld; and
(iv) from and against any and all expense whatsoever, as
incurred (including, subject to Section 6(c) hereof, the fees and
disbursements of counsel chosen by the Agent), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation, proceeding or inquiry by any governmental agency or
body, commenced or threatened, or any claim pending or threatened
whatsoever described in clauses (i) or (ii) above, to the extent that
any such expense is not paid under clause (i), (ii) or (iii) above;
provided, however, that the indemnification provided for in this paragraph (a)
shall not apply to any loss, liability, claim, damage or expense to the extent
arising out of any untrue statement or alleged untrue statement of a material
fact contained in the Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading which was made in reliance upon and in conformity with
the Agent Information. Notwithstanding the foregoing, the indemnification
provided for in this paragraph (a) shall not apply to the Bank to
30
the extent that such indemnification by the Bank would constitute a covered
transaction under Section 23A of the Federal Reserve Act, as amended.
(b) The Agent agrees to indemnify and hold harmless the Company and the
Bank, their directors, each of their officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, of a material fact made in the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with the Agent
Information.
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have otherwise than on account of this indemnity agreement. An
indemnifying party may participate at its own expense in the defense of any such
action. In no event shall the indemnifying parties be liable for fees and
expenses of more than one counsel (in addition to no more than one local counsel
in each separate jurisdiction in which any action or proceeding is commenced)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances.
(d) The Company, the MHC, the Mid-Tier HC and the Bank also agree that
the Agent shall not have any liability (whether direct or indirect, in contract
or tort or otherwise) to the MHC, the Bank, the Mid-Tier HC and its security
holders, the Company and its security holders or the MHC's, the Bank's, the
Mid-Tier HC's or the Company's creditors relating to or arising out of the
engagement of the Agent pursuant to, or the performance by the Agent of the
services contemplated by, this Agreement, except to the extent that any loss,
claim, damage or liability is found in a final judgment by a court of competent
jurisdiction to have resulted primarily from the Agent's bad faith, willful
misconduct or gross negligence.
(e) In addition to, and without limiting, the provisions of Section
(6)(a)(iv) hereof, in the event that the Agent, any person, if any, who controls
the Agent within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act or any of its partners, directors, officers, employees or
agents is requested or required to appear as a witness or otherwise gives
testimony in any action, proceeding, investigation or inquiry brought by or on
behalf of or against the Company, the MHC, the Mid-Tier HC, the Bank, the Agent
or any of its respective affiliates or any participant in the transactions
contemplated hereby in which the Agent or such person or agent is not named as a
defendant, the Company, the MHC, the Mid-Tier HC, and the Bank jointly and
severally agree to reimburse the Agent and its partners, directors, officers,
employees or agents for all reasonable and necessary out-of-pocket expenses
incurred by them in connection with preparing or appearing as a witness or
otherwise giving testimony and to compensate the Agent and its partners,
directors, officers, employees or agents in an amount to be mutually agreed
upon.
31
SECTION 7. CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 hereof is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, the Company, the MHC,
the Mid-Tier HC, the Bank, and the Agent shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated by
said indemnity agreement incurred by the Company, the MHC, the Mid-Tier HC or
the Bank and the Agent, as incurred, in such proportions (i) that the Agent is
responsible for that portion represented by the percentage that the maximum
aggregate marketing fees appearing on the cover page of the Prospectus bears to
the maximum aggregate gross proceeds appearing thereon and the Company, the MHC,
the Mid-Tier HC and the Bank are jointly and severally responsible for the
balance or (ii) if, but only if, the allocation provided for in clause (i) is
for any reason held unenforceable, in such proportion as is appropriate to
reflect not only the relative benefits to the Company, the MHC, the Mid-Tier HC
and the Bank on the one hand and the Agent on the other, as reflected in clause
(i), but also the relative fault of the Company, the MHC, the Mid-Tier HC and
the Bank on the one hand and the Agent on the other, as well as any other
relevant equitable considerations; provided, however, that no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section, each
person, if any, who controls the Agent within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act shall have the same rights to
contribution as the Agent, and each director of the Company, the MHC, the
Mid-Tier HC and the Bank, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company, the
MHC, the Mid-Tier HC or the Bank within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act shall have the same rights to
contribution as the Company, the MHC, the Mid-Tier HC and the Bank.
Notwithstanding anything to the contrary set forth herein, to the extent
permitted by applicable law, in no event shall the Agent be required to
contribute an aggregate amount in excess of the aggregate marketing fees to
which the Agent is entitled and actually paid pursuant to this Agreement.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Company, the MHC, the
Mid-Tier HC or the Bank submitted pursuant hereto, shall remain operative and in
full force and effect, regardless of any investigation made by or on behalf of
any Agent or controlling person, or by or on behalf of the Company, and shall
survive delivery of the Securities and the Exchange Shares.
SECTION 9. TERMINATION OF AGREEMENT.
(a) The Agent may terminate this Agreement, by notice to the Company,
at any time at or prior to Closing Time (i) if there has been, since the date of
this Agreement or since the respective dates as of which information is given in
the Registration Statement, any material adverse change in the financial
condition, results of operations or business affairs of the Company, the MHC,
the Mid-Tier HC or the Bank, considered as one enterprise, whether or not
arising in the ordinary course of business, (ii) if there has occurred any
material adverse change in the financial markets in the United States or
elsewhere or any outbreak of hostilities or escalation thereof or other calamity
32
or crisis the effect of which, in the judgment of the Agent, are so material and
adverse as to make it impracticable to market the Securities or to enforce
contracts, including subscriptions or orders, for the sale of the Securities,
(iii) if trading generally on the Nasdaq National Market, the American Stock
Exchange or the New York Stock Exchange has been suspended, or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices for
securities have been required, by either of said Exchanges or by order of the
Commission or any other governmental authority, or if a banking moratorium has
been declared by either Federal, Florida or New York authorities, (iv) if any
condition specified in Section 5 shall not have been fulfilled when and as
required to be fulfilled; (v) if there shall have been such material adverse
change in the condition or prospects of the Company, the MHC, the Mid-Tier HC or
the Bank or the prospective market for the Company's Securities as in the
Agent's good faith opinion would make it inadvisable to proceed with the
offering, sale or delivery of the Securities; (vi) if, in the Agent's good faith
opinion, the price for the Securities established by the Appraiser is not
reasonable or equitable under then prevailing market conditions, or (vii) if the
Conversion is not consummated on or prior to __________, 2001.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Section 4 hereof relating to the reimbursement of expenses and
except that the provisions of Sections 6 and 7 hereof shall survive any
termination of this Agreement.
SECTION 10. 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 the Agent
shall be directed to the Agent at Two World Trade Center, 104th Floor, New York,
New York 10048, attention of Catherine A. Lawton, Principal, with a copy to Paul
M. Aguggia, Esq., Muldoon, Murphy & Faucette LLP, 5101 Wisconsin Avenue, N.W.,
Washington, D.C. 20016; notices to the Company, the MHC, the Mid-Tier HC and the
Bank shall be directed to any of them at 205 East Orange Street, Lakeland,
Florida 33801, attention of Gregory C. Wilkes, with a copy to Samuel Malizia,
Esq., Malizia Spidi & Fisch, PC, 1301 K Street, N.W., Suite 700 East,
Washington, D.C. 20005.
SECTION 11. PARTIES. This Agreement shall inure to the benefit of and
be binding upon the Agent, the Company, the MHC, the Mid-Tier HC and the Bank
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 Agent, the Company, the MHC, the Mid-Tier HC and the
Bank and their respective successors and the controlling persons and officers
and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein or therein contained. This
Agreement and all conditions and provisions hereof and thereof are intended to
be for the sole and exclusive benefit of the Agent, the Company, the MHC, the
Mid-Tier HC and the Bank and their respective successors, and said controlling
persons and officers and directors and their heirs and legal representatives,
and for the benefit of no other person, firm or corporation.
33
SECTION 12. ENTIRE AGREEMENT; AMENDMENT. This Agreement represents the
entire understanding of the parties hereto with reference to the transactions
contemplated hereby and supersedes any and all other oral or written agreements
heretofore made, except for the engagement letter dated July 24, 2000, by and
between the Agent and the Bank, relating to the Agent's providing conversion
agent services to the Company and the Bank in connection with the Conversion. No
waiver, amendment or other modification of this Agreement shall be effective
unless in writing and signed by the parties hereto.
SECTION 13. GOVERNING LAW AND TIME. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed in said State without regard to the
conflicts of laws provisions thereof. Unless otherwise noted, specified times of
day refer to Eastern time.
SECTION 14. SEVERABILITY. Any term or provision of this Agreement which
is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction,
be ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted
to be only so broad as is enforceable.
SECTION 15. HEADINGS. Sections headings are not to be considered part
of this Agreement, are for convenience and reference only, and are not to be
deemed to be full or accurate descriptions of the contents of any paragraph or
subparagraph.
[The next page is the signature page]
34
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Agent on the one hand, and the Company, the MHC, the Mid-Tier HC and
the Bank on the other in accordance with its terms.
Very truly yours,
FLORIDAFIRST BANCORP, INC.
By:
------------------------------------
Title:
FLORIDAFIRST BANK
By:
------------------------------------
Title:
FLORIDAFIRST BANCORP, MHC
By:
------------------------------------
Title:
CONFIRMED AND ACCEPTED, FloridaFirst Bancorp
as of the date first above written:
SANDLER O'NEILL & PARTNERS, L.P. By:
------------------------------------
Title:
By: Sandler O'Neill & Partners Corp.,
the sole general partner
By:
------------------------------------
35
FLORIDAFIRST BANCORP, INC.
5,520,000 Shares
(Maximum Offered to be Sold and Issued in Conversion, subject
to increase up to 6,348,000 shares
under certain circumstances)
Common Stock
(Par Value $0.10 Per Share)
SELECTED DEALER'S AGREEMENT
______________, 2000
Ladies and Gentlemen:
We have agreed to assist FloridaFirst Bancorp, Inc. (the "Company") in
connection with the offer for sale and issuance of shares (the "Shares") of
common stock, par value $0.10 per share, of the Company, to be issued in
connection with the conversion and reorganization of FloridaFirst Bank, a
federally-chartered stock savings bank (the "Bank"), from the mutual to stock
holding company form of organization. The Company, in connection with its plan
to effect such conversion, offered for sale up to 3,620,179 shares for
subscription by the Company's and the Bank's employee stock ownership plan and
certain of the Bank's depositors and borrowers, in a subscription offering, and
certain members of the general public in a concurrent direct community offering.
The shares which were not subscribed for pursuant to such subscription and
direct community offerings are being offered to the public in a syndicated
community offering (the "Syndicated Community Offering") in accordance with the
rules of the Office of Thrift Supervision ("OTS"). The balance of the Shares to
be issued in connection with the conversion represent the minority ownership
interest in FloridaFirst Bancorp, the Bank's parent stock holding company, which
will be exchanged for up to 2,727,281 shares of Company common stock (the
"Exchange Shares"). The Shares, the bases on which the number of Shares to be
issued may change, and certain of the terms on which they are being offered are
more fully described in the enclosed Prospectus (the "Prospectus").
We are offering to Selected Dealers (of which you are one) the opportunity to
participate in the solicitation of offers to buy the Shares in the Syndicated
Community Offering, and we will pay you a fee in the amount of _____________
percent (______%) of the dollar amount of the Shares sold on behalf of the
Company by you. The number of Shares sold by you shall be determined based on
the authorized designation of your firm on the order form or forms for such
Shares accompanying the funds transmitted for payment therefor (whether in the
form of a check payable to the Bank or a withdrawal from an existing account at
the Bank) to the special account established by the Company for the purpose of
holding such funds. It is understood, of course, that payment of your fee will
be made only out of compensation received by us for the Shares sold on behalf of
the Company by you, as evidenced in accordance with the preceding sentence. The
Bank has requested us to invite you to become a "Sponsoring Dealer," that is, a
Selected Dealer who solicits offers which result in the sale on behalf of the
Bank of at least ____ shares. You may become a Sponsoring
Dealer (subject to your fulfillment of the requirement in the preceding
sentence) by checking the box on the confirmation at the end of this letter. If
you become a Sponsoring Dealer, you shall be entitled to an additional fee in
the amount of _____ percent (_____%) of the dollar amount of the Shares sold on
behalf of the Company by you as evidenced in the manner set forth above.
Each order form for the purchase of Shares must set forth the identity, address
and tax identification number of each person ordering Shares regardless of
whether the Shares will be registered in street name or in the purchaser's name.
Such order form should clearly identify your firm.
As soon as practicable after all the Shares are sold, we will remit to you, out
of our compensation as provided above, the fees to which you are entitled
hereunder, including your Sponsoring Dealer fee.
This offer is made subject to the terms and conditions herein set forth and is
made only to Selected Dealers which are (i) members in good standing of the
National Association of Securities Dealers, Inc. ("NASD") which agree to comply
with all applicable rules of the NASD, including, without limitation, the NASD's
Interpretation with Respect to Free-Riding and Withholding and Section 24 of
Article III of the NASD's Rules of Fair Practice, or (ii) foreign dealers not
eligible for membership in the NASD which agree (A) not to sell any Shares
within the United States, its territories or possessions or to persons who are
citizens thereof or resident therein and (B) in making other sales to comply
with the above-mentioned NASD Interpretation, Sections 8, 24 and 36 of the
above-mentioned Article III as if they were NASD members and Section 25 of such
Article III as it applies to non-member brokers or dealers in a foreign country.
Orders for Shares will be strictly subject to confirmation and we, acting on
behalf of the Company, reserve the right in our absolute discretion to reject
any order in whole or in part, to accept or reject orders in the order of their
receipt or otherwise, and to allot. Neither you nor any other person is
authorized by the Company, the Bank or by us to give any information or make any
representations other than those contained in the Prospectus in connection with
the offering and sale of any of the Shares. No Selected Dealer is authorized to
act as agent for us when soliciting offers to buy the Shares from the public or
otherwise. No Selected Dealer shall engage in any stabilizing (as defined in
Regulation M promulgated under the Securities Exchange Act of 1934, as amended
(the "Exchange Act")) with respect to the Company's common stock during the
offering.
We and each Selected Dealer assisting in selling Shares pursuant hereto agree to
comply with the applicable requirements of the Exchange Act, and applicable
rules and regulations issued by the OTS. In addition, we and each Selected
Dealer confirm that the Securities and Exchange Commission (the "SEC")
interprets Rule 15c2-8 promulgated under the Exchange Act as requiring that a
prospectus be supplied to each person who is expected to receive a confirmation
of sale at least 48 hours prior to delivery of such person's order form.
2
We and each Selected Dealer further agree to the extent that our customers
desire to pay for Shares with funds held by or to be deposited with us, in
accordance with the interpretation of the SEC Rule 15c2-4 promulgated under the
Exchange Act either (a) upon receipt of an executed order form or direction to
execute an order form on behalf of a customer to forward the Syndicated
Community Offering price for the Shares ordered on or before 12:00 p.m. on the
business day following receipt or execution of an order form by us to the Bank
for deposit in a segregated account as agent or trustee for the customer or (b)
to solicit indications of interest in which event (i) we will subsequently
contact any customers indicating interest to confirm the interest and give
instructions to execute and return an order form or to receive authorization to
execute an order form on their behalf, (ii) we will mail acknowledgments or
receipt of orders to each customer confirming interest on the business day
following such confirmation, (iii) we will debit accounts of such customers on
the third business day (the "debit date") following receipt of the confirmation
referred to in (i) and (iv) we will forward completed order forms together with
such funds to the Bank on or before 12:00 p.m. on the next business day
following the debit date for deposit in a segregated account. We acknowledge
that if the procedure in (b) is adopted, our customer's funds are not required
to be in their accounts until the debit date. We and each Selected Dealer
further acknowledge that, in order to use the foregoing "sweep arrangements," we
comply with the net capital requirements for broker/dealers under Rule
15c3-1(a)(1) of the Exchange Act.
Unless earlier terminated by us, this Agreement shall terminate 45 full business
days after the date hereof, but may be extended by us for an additional period
or periods not exceeding 30 full business days in the aggregate. We may
terminate this Agreement or any provisions hereof at any time by written or
telegraphic notice to you. Of course, our obligations hereunder are subject to
the successful completion of the offering, including the sale of all of the
Shares.
You agree that at any time or times prior to the termination of this Agreement
you will, upon our request, report to us the number of Shares sold on behalf of
the Company by you under this Agreement.
We shall have full authority to take such actions as we may deem advisable in
respect to all matters pertaining to the offering. We shall be under no
liability to you except for lack of good faith and for obligations expressly
assumed by us in this Agreement.
Upon application to us, we will inform you as to the states in which we believe
the Shares have been qualified for sale under, or are exempt from the
requirements of, the respective blue sky laws of such states, but we assume no
responsibility or obligation as to your rights to sell Shares in any state.
Additional copies of the Prospectus and any supplements thereto will be supplied
in reasonable quantities upon request.
Any notice from us to you shall be deemed to have been duly given if mailed,
telephoned or telegraphed to you at the address to which this Agreement is
mailed.
3
This Agreement shall be construed in accordance with the laws of New York.
Please confirm your agreement hereto by signing and returning the confirmation
accompanying this letter at once to us at Sandler O'Neill & Partners, L.P., Two
World Trade Center, 104th Floor, New York, New York 10048. The enclosed
duplicate copy will evidence the agreement between us.
Very truly yours,
SANDLER O'NEILL & PARTNERS, L.P.
By: ____________________________________
4
Sandler O'Neill & Partners, L.P.
Two World Trade Center - 104th Floor
New York, New York 10048
Re: FloridaFirst Bancorp, Inc.
--------------------------
Ladies and Gentlemen:
We hereby confirm our agreement to all the terms and conditions stated in the
foregoing letter. We acknowledge receipt of the Prospectus relating to the
Shares and we further state that in agreeing thereto we have relied upon the
Prospectus and no other statement whatsoever, written or oral. We confirm that
we are (i) a member on good standing of the National Association of Securities
Dealers, Inc. ("NASD"), and agree to comply with all applicable rules of the
NASD, including, without limitation, the NASD's "Interpretation With Respect to
Free-Riding and Withholding" and Section 24 of Article III of the NASD's Rules
of Fair Practice, or (ii) a foreign dealer not eligible for membership in the
NASD and agree (A) not to sell any Shares of FloridaFirst Bancorp, Inc. within
the United States, its territories or possessions or to persons who are citizens
thereof or resident therein and (B) in making other sales to comply with the
above-mentioned NASD Interpretation, Section 8, 24 and 26 of the above-mentioned
Article III as if we were an NASD member and Section 25 of such Article III as
it applies to a non-member broker or dealer in a foreign country.
[__] We wish to become a "Sponsoring Dealer."
Dated: ______________________
---------------------------------------------
(Please print or type name of firm
By: ________________________________________