EXHIBIT 1
2,351,175 Shares
(subject to increase up to 2,703,851 shares
in the event of an increase in the pro forma market
value of the Company=s Common Stock)
FloridaFirst Bancorp
(a federally chartered corporation)
Common Stock
(par value $0.10 per share)
AGENCY AGREEMENT
, 1999
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SANDLER O'NEILL & PARTNERS, L.P.
Two World Trade Center, 104th Floor
New York, New York 10048
Ladies and Gentlemen:
FloridaFirst Bancorp, MHC, a federal mutual holding company
(the "MHC"), FloridaFirst Bancorp, a federally chartered stock corporation (the
"Company"), and First Federal Florida, a federal 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
2,351,175 shares (subject to increase up to 2,703,851 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 reorganization and stock issuance (the "Plan") adopted by the Board
of Directors of the Bank pursuant to which the Bank intends to reorganize from a
federally chartered mutual savings bank to a federally chartered stock savings
bank and issue all of its stock to the Company, and the Company will become a
majority-owned subsidiary of the MHC. Pursuant to the Plan, the Company is
offering to certain depositors and other members of the Bank and to the Bank's
tax qualified employee benefit plans, including the Employee Stock Ownership
Plan (the "ESOP") (collectively, the "Employee Plans") rights to subscribe for
the Securities in a subscription offering
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(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, with preference given first to certain natural persons
residing in Polk or Manatee County, Florida and second to certain natural
persons residing in Florida, in a direct community offering (the "Community
Offering" and together with the Subscription Offering, as each may be extended
or reopened from time to time, the "Subscription and Community Offering") to be
commenced concurrently with 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 3
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," and the
reorganization of the Bank from mutual to stock form, the acquisition of the
capital stock of the Bank by the Company and the Offerings are hereinafter
referred to collectively as the "Reorganization." It is acknowledged that the
number of Securities to be sold in the Reorganization 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. In the
event that a holding company form of organization is not utilized, all pertinent
terms of this Agreement will apply to the reorganization of the Bank from the
mutual to stock form of organization and the sale of the Bank's common stock.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-1 (No.
333-____), 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 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 and the Common Stock.
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SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) The Company, the Bank and the MHC 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 Bank and the MHC, 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 MHC, the Company and the Bank
acknowledge appears only in the first two paragraphs of the section
"The Reorganization- Plan of Distribution/Marketing Arrangements" of
the Prospectus).
(ii) The Company and the MHC have filed with the
Department of the Treasury, Office of Thrift Supervision (the "OTS")
the Company's and the MHC=s application for approval of its acquisition
of the Bank (the "Holding Company Application") on Form H-(e)1
promulgated under the savings and loan holding company provisions of
the Home Owners' Loan Act, as amended ("HOLA") and the regulations
promulgated thereunder. The Company and the MHC have 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 MHC, 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 AOTS Regulations"), the Bank has filed with the OTS a Notice of
Mutual Holding Reorganization on Form MHC-1 (the "Form MHC-1") and an
Application for Approval of Minority Stock Issuance by a Savings
Association Subsidiary of a Mutual Holding Company on Form MHC-2 (the
"Form MHC-2"), and has filed such amendments thereto and supplementary
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materials as may have been required to the date hereof (such
applications, as amended to date, if applicable, and as from time to
time amended or supplemented hereafter, are hereinafter referred to as
the "MHC Application" and, together with the Holding Company
Application, the "Reorganization Application"). The Offerings and the
Plan have been duly adopted by the Board of Directors of the Bank and
such adoption has not since been rescinded or revoked. The Form MHC-2
has been approved by the OTS and, prior to the Closing Date (as defined
in Section 2 hereof), the Conversion Application will have been
approved. The Prospectus and the proxy statement for the solicitation
of proxies from members for the special meeting to approve the Plan
(the "Proxy Statement") included as part of the MHC 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 Bank or the MHC, threatened by
the OTS. At the date of such approval and at the Closing Time referred
to in Section 2, the Reorganization 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 Proxy Statement and
any other proxy solicitation materials will comply in all material
respects with the applicable provisions of the OTS Regulations and will
not contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
The Company and the Bank will promptly file the Prospectus and any
supplemental sales literature with the 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 requirements of the OTS Regulations and,
at or prior to the time of their first use, will have received all
required authorizations of the OTS 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 Bank or
the MHC for use in connection with the Offerings.
(vi) At the Closing Time referred to in Section 2, the
Company, the Bank and the MHC will have completed the conditions
precedent to the Reorganization 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 Reorganization imposed
upon the MHC, the Company 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 Reorganization.
(vii) Feldman Financial Advisors, Inc. (the "Appraiser"),
which prepared the valuation of the Bank as part of the Reorganization,
has advised the Company and the
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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) The accountants who certified the consolidated
financial statements and supporting schedules of the Bank included in
the Registration Statement have advised the Company, the Bank and the
MHC 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 Bank and the MHC, independent certified
public accountants as required by the Securities Act and the Securities
Act Regulations and OTS Regulations.
(ix) The Bank does not have any subsidiaries.
(x) The financial statements and the related notes
thereto included in the Registration Statement and the Prospectus
present fairly the financial position of the Bank and at the dates
indicated and the results of operations, equity capital 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,
said financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis;
and the supporting schedules and tables included in the Registration
Statement present fairly the information required to be stated therein.
(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 Bank and its subsidiaries 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 Prospectus, there have been no transactions entered
into by the Company, the Bank or the MHC, other than those in the
ordinary course of business, which are material with respect to the
Company, the Bank and the MHC, 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 United States 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 Company 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 on the financial condition, results of
operations or business affairs of the Company, the Bank or the MHC,
considered as one enterprise.
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(xiii) Upon consummation of the Reorganization, 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 Reorganization,
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 non-assessable; the terms and provisions of
the Common Stock and the capital stock of the Company conform to all
statements relating thereto contained in the Prospectus; the
certificates representing the shares of Common Stock conform to the
requirements of applicable law and regulations; and the issuance of the
Securities is not subject to preemptive or other similar rights.
(xiv) The Bank, as of the date hereof, is a federally
chartered savings bank in mutual form and upon consummation of the
Reorganization will be a federally chartered savings bank in stock
form, in both instances with full corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Prospectus; the Company, the Bank and its subsidiaries
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
Reorganization 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 Bank and the MHC
considered as one enterprise; all such licenses, permits and other
governmental authorizations are in full force and effect and the
Company, the Bank and the MHC are in all material respects in
compliance therewith; neither the Company, the Bank nor the MHC 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 Bank and the MHC, considered as one
enterprise; and the Bank is in good standing under the laws of the
United States and is qualified as a foreign corporation in any
jurisdiction in which the failure to so qualify would have a material
adverse effect on the financial condition, results of operations or
business affairs of the Company, the Bank and the MHC considered as one
enterprise.
(xv) The deposit accounts of the Bank are insured by the
FDIC up to the applicable limits and upon consummation of the
Reorganization, 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 Aqualified thrift lender" within the meaning of 12 U.S.C.
Section 1467a(m).
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(xvi) Upon consummation of the Reorganization, the
authorized capital stock of the Company will be 8,000,000 shares of
common stock, par value $0.10 per share (the "Company Common Stock")
and 2,000,000 shares of preferred stock, no par value per share (the
"Company Preferred Stock"), and the issued and outstanding capital
stock of the Company will be ______ shares of Company Common Stock and
no shares of the Company Preferred Stock, and no shares of Company
Common Stock or Company Preferred Stock have been or will be issued
prior to the Closing time referred to in Section 2; and as of Closing
Time referred to in Section 2, all of the issued and outstanding
capital stock of the Company 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 Company
Common Stock to be issued to the MHC 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 as described in the Prospectus, will be duly and validly
issued and fully paid and nonassessable, and all such Company Common
Stock will be owned beneficially and of record by the MHC free and
clear of any security interest, mortgage, pledge, lien, encumbrance or
legal or equitable claim; the terms and provisions of the Company
Common Stock and the Company Preferred Stock conform to all statements
relating thereto contained in the Prospectus, and the certificates
representing the shares of the Company Common Stock will conform with
the requirements of applicable laws and regulations; and the issuance
of the Company Common Stock is not subject to preemptive or similar
rights.
(xvii) Upon consummation of the Reorganization, the
authorized capital stock of the Bank will be ________ shares of common
stock, par value $___ per share (the "Bank Common Stock") and ________
shares of preferred stock, par value $____ 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 shares of the
Bank Preferred Stock, and no shares of Bank Common Stock or Bank
Preferred Stock have been or will be issued prior to the Closing time
referred to in Section 2; and as of Closing Time referred to in Section
2, all of the issued and outstanding capital stock of the Bank will be
duly authorized, validly issued and fully paid and nonassessable and
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
calculated as set forth in the Plan and as described 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.
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(xviii) The MHC, the Company and the Bank have taken all
corporate action necessary for them to execute, deliver and perform
this Agreement, and this Agreement has been duly executed and delivered
by, and is the valid and binding agreement of, the MHC, the Company and
the Bank, enforceable in accordance with its terms, except as may be
limited by bankruptcy, insolvency or other laws affecting the
enforceability of the rights of creditors generally and judicial
limitations on the right of specific performance and except as the
enforceability of indemnification and contribution provisions may be
limited by applicable securities laws.
(xix) 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 Bank or the MHC 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 Bank and the MHC, taken as a whole,
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.
(xx) 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.
(xxi) None of the Company, the Bank nor the MHC is in
violation of its certificate of incorporation, organization
certificate, articles of incorporation or charter, as the case may be,
or bylaws (and the Bank will not be in violation of its charter or
bylaws in stock form upon consummation of the Reorganization); and none
of the Company, the Bank nor the MHC 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 Bank or the MHC 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 Bank or the MHC 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 Bank and the MHC considered as one enterprise; and there
are no contracts or documents of the Company, the Bank or the MHC which
are required to be filed as exhibits to the Registration Statement or
the Reorganization Application which have not been so filed.
(xxii) The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated herein
do not and will not conflict with or
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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 Bank or the MHC pursuant to, any contract,
indenture, mortgage, loan agreement, note, lease or other instrument
to which the Company, the Bank or the MHC 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 Bank or the MHC 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 Bank and
the MHC considered as one enterprise; nor will such action result in
any violation of the provisions of the certificate of incorporation,
organization certificate, articles of incorporation or charter or
by-laws of the Company, the Bank or the MHC, or any applicable law,
administrative regulation or administrative or court decree.
(xxiii) No labor dispute with the employees of the Company,
the Bank or the MHC exists or, to the knowledge of the Company, the
Bank or the MHC, is imminent or threatened; and the Company, the Bank
and the MHC 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 Bank and its subsidiaries considered as one
enterprise.
(xxiv) Each of the Company, the Bank and the MHC has good
and marketable title to all properties and assets for which ownership
is material to the business of the Company, the Bank or the MHC and to
those properties and assets described in the Prospectus as owned by
them, free and clear of all liens, charges, encumbrances or
restrictions, except such as are described in the Prospectus or are not
material in relation to the business of the Company, the Bank or the
MHC considered as one enterprise; and all of the leases and subleases
material to the business of the Company, the Bank or the MHC under
which the Company, the Bank or the MHC hold properties, including those
described in the Prospectus, are valid and binding agreements of the
Company, the Bank or the MHC, enforceable in accordance with their
terms.
(xxv) None of the Company, the Bank nor the MHC is in
violation of any directive from the OTS or the FDIC to make any
material change in the method of conducting its respective businesses;
the Bank has conducted and is conducting its 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 or the FDIC).
(xxvi) 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 Bank or the MHC,
threatened, against or affecting the Company, the Bank or the MHC 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 Bank and
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the MHC considered as one enterprise, or which might materially and
adversely affect the properties or assets thereof, the performance of
this Agreement or which might materially and adversely affect the
consummation of the Reorganization; all pending legal or governmental
proceedings to which the Company, the Bank or the MHC 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.
(xxvii) The Bank has obtained (i) an opinion of its counsel,
Malizia, Spidi, Sloane & Fisch, P.C., with respect to the legality of
the Securities to be issued and the federal income tax consequences of
the Reorganization and (ii) the opinion of McClurg, Watson, Griffith &
Bush, P.A. with respect to the state and local tax consequences of the
Reorganization (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 representations upon which such opinions are based are
truthful, accurate and complete in all material respects; and neither
the Bank nor the Company has taken or will take any action inconsistent
therewith.
(xxviii) The Company is not required to be registered under
the Investment Company Act of 1940, as amended.
(xxix) All of the loans represented as assets on the most
recent financial statements or selected financial information of the
Bank included in the Prospectus meet or are exempt from all
requirements of federal, state or local law pertaining to lending,
including without limitation truth in lending (including the
requirements of 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 and the Bank considered as one
enterprise.
(xxx) To the knowledge of the Company and the Bank, with
the exception of the intended loan to the Bank=s ESOP by the Company to
enable the ESOP to purchase shares of Common Stock in an amount of up
to 8.0% of the Securities issued in the Reorganization, none of the
Company, the Bank or employees of the Bank has made any payment of
funds of the Company or the Bank as a loan for the purchase of the
Common Stock or made any other payment of funds prohibited by law, and
no funds have been set aside to be used for any payment prohibited by
law.
(xxxi) The MHC, the Company and the Bank are in compliance
in all material respects with the applicable financial recordkeeping
and reporting requirements of the Currency and Foreign Transaction
Reporting Act of 1970, as amended, and the rules and regulations
thereunder and the lending practices of the Bank are and have been in
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conformity with the Real Estate Settlement Procedures Act, as amended,
and the rules and regulations thereunder.
(xxxii) None of the Company, the Bank nor the MHC nor any
properties owned or operated by the Company, the Bank or the MHC is in
violation of or liable under any Environmental Law (as defined below),
except for such violations or liabilities that, individually or in the
aggregate, would not have a material adverse effect on the financial
condition, results of operations or business affairs of the Company,
the Bank and the MHC considered as one enterprise. There are no
actions, suits or proceedings, or demands, claims, notices or
investigations (including, without limitation, notices, demand letters
or requests for information from any environmental agency) instituted
or pending, or to the knowledge of the Company, the Bank or the MHC
threatened, relating to the liability of any property owned or operated
by the Company, the Bank or the MHC, under any Environmental Law. For
purposes of this subsection, the term "Environmental Law" means any
federal, state, local or foreign law, statute, ordinance, rule,
regulation, code, license, permit, authorization, approval, consent,
order, judgment, decree, injunction or agreement with any regulatory
authority relating to (i) the protection, preservation or restoration
of the environment (including, without limitation, air, water, vapor,
surface water, groundwater, drinking water supply, surface soil,
subsurface soil, plant and animal life or any other natural resource),
and/or (ii) the use, storage, recycling, treatment, generation,
transportation, processing, handling, labeling, production, release or
disposal of any substance presently listed, defined, designated or
classified as hazardous, toxic, radioactive or dangerous, or otherwise
regulated, whether by type or by quantity, including any material
containing any such substance as a component.
(xxxiii) The Company, the Bank and the MHC have filed all
federal income and state and local franchise tax returns required to be
filed and have made timely payments of all taxes shown as due and
payable in respect of such returns, and no deficiency has been asserted
with respect thereto by any taxing authority.
(xxxiv) The Company has received approval to have the
Securities quoted on the Nasdaq Stock Market effective as of the
Closing Time referred to in Section 2 hereof.
(xxxv) The Company has filed a registration statement for
the Common Stock under Section 12(g) of the Securities Exchange Act of
1934, as amended (the "Exchange Act") and such registration statement
was declared effective concurrent with the filing of such registration
statement.
(b) Any certificate signed by any officer of the
Company, the Bank or the MHC and delivered to either
of the Agent to counsel for the Agent shall be deemed a representation and
warranty by the Company, the Bank or the MHC to the Agent as to the matters
covered thereby.
-12-
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 Bank and the MHC 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 Offerings.
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 Shares 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 Bank and the MHC 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 5% of the
aggregate 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
-13-
Company and the requirements of the Plan, which may result in limiting the
allocation of stock to certain 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 and the Bank as set forth in Sections 4, 6(a) 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, 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 Housley Kantarian & Bronstein, P.C., 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
-14-
(b) with respect to any Securities sold by an 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 three-quarters percent (0.75%). 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 three-quarters percent (0.75%) of
the Actual Purchase Price of such Securities.
(c) with respect to the performance of proxy
solicitation services, conversion agent services and record management
services for the Bank in the Reorganization, Sandler O=Neill shall
receive a fee of $42,750.
If this Agreement is terminated by the Agent in
accordance with the provisions of Section 9(a) hereof or the Reorganization 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
execution hereof, which shall be credited against any fees or reimbursement of
expenses payable hereunder.
SECTION 3. COVENANTS OF THE COMPANY, THE BANK AND
THE MHC. The Company, the Bank and the MHC covenant with the Agent as follows:
(a) The Company, the Bank and the MHC will prepare
and file such amendments or supplements to the Registration Statement,
the Prospectus, the Reorganization Application and the Proxy Statement
as may hereafter be required by the Securities Act 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 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 Bank and the MHC 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
-15-
any amendment to the Reorganization 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 any amendment to the
Registration Statement or the Reorganization 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 Bank and the MHC 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 Bank and the MHC will give the
Agent notice of its intention to file or prepare any amendment to the
Reorganization Application or Registration Statement (including any
post-effective 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 Bank and the MHC will deliver to
the Agent as many signed copies and as many conformed copies of the
Reorganization 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 Bank and the MHC 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 Prospectus
-16-
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 Bank and the MHC will forthwith amend or supplement the
Prospectus (in form and substance satisfactory to counsel for the
Agent) so that, as so amended or supplemented, the 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 Bank and the MHC
will furnish to the Agent a reasonable number of copies of such
amendment or supplement. For the purpose of this subsection, the
Company, the Bank and the MHC will each furnish such information with
respect to itself as the Agent may from time to time reasonably
request.
(f) The Company, the Bank and the MHC 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 Bank nor the MHC 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 Bank and the MHC 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
-17-
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 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 Bank and the MHC will conduct
the Reorganization in all material respects in accordance with the
Plan, the OTS Regulations and all other applicable regulations,
decisions and orders, including all applicable terms, requirements and
conditions precedent to the Reorganization imposed upon the Company,
the Bank or the MHC by the OTS.
(l) The Company, the Bank and the MHC 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."
(m) 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.
(n) The Company will maintain the effectiveness of
the Exchange Act Registration Statement for not less than three years.
The Company will use its best efforts to effect the listing of the
Common Stock on the Nasdaq Stock Market. The Company will file with the
Nasdaq Stock Market all documents and notices required by the Nasdaq
Stock Market of companies that have issued securities that are traded
in the over-the-counter market and quotations for which are reported by
the Nasdaq Stock Market.
(o) 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."
(p) 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
-18-
Common Stock other than the Securities for a period of 180 days
following the Closing Time.
(q) 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 Bank nor the MHC shall, without the 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.
(r) The Company, the Bank and the MHC will comply
with the conditions imposed by or agreed to with the OTS in connection
with its approval of the Holding Company Application and the
Reorganization Application.
(s) 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).
(t) The Company shall not deliver the Securities
until the Company and the Bank have satisfied each condition set forth
in Section 5 hereof, unless such condition is waived by the Agent.
(u) The 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 financial statements of the Bank which have
been read by KPMG Peat Marwick 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 Bank
and the MHC 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 printing and filing of the Registration Statement and the Reorganization
Application as originally filed and of each amendment thereto, (iii) the
preparation, issuance and delivery of the certificates for the Securities to the
purchasers in the Offerings, (iv) the fees and disbursements of the Company's,
the Bank's and the MHC=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
-19-
on the Nasdaq Stock Market. In the event the Agent incurs any such fees and
expenses on behalf of the Company, the Bank or the MHC, the Bank will reimburse
the Agent for such fees and expenses whether or not the Reorganization is
consummated; provided, however, that the Agent shall not incur any substantial
expenses on behalf of the Bank or the Company pursuant to this Section without
the prior approval of the Bank.
The Company, the Bank and the MHC jointly and severally agree to pay
certain expenses incident to the performance of the Agent's obligations under
this Agreement, regardless of whether the Reorganization is consummated,
including (i) the filing fees paid or incurred by the Agent in connection with
all filings with the National Association of Securities Dealers, Inc., and (ii)
all reasonable out of pocket expenses incurred by the Agent relating to the
Offerings, including, without limitation, advertising, promotional, syndication
and travel expenses and fees and expenses of the Agent's counsel. 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 Bank or
the MHC 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 Bank, the MHC and the Agent agree that the issuance and the sale of
Securities and all obligations of the Agent hereunder are subject to the
accuracy of the representations and warranties of the Company, the Bank and the
MHC 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 Bank and the MHC
made pursuant to the provisions hereof, to the performance by the Company, the
Bank and the MHC 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, Sloane & Fisch,
P.C., counsel for the MHC, the Company 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 federal stock corporation in
good standing under the laws of the United States;
the MHC has been duly incorporated and is validly
existing as a federal mutual holding company under
the laws of the United States.
-20-
(ii) Each of the Company and the MHC 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 MHC and the Company 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 Bank and the
MHC, considered as one enterprise.
(iv) Upon consummation of the Reorganization,
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 and, when issued and
delivered by the Company pursuant to the Plan against
payment of the consideration calculated as set forth
in the Plan, will be duly and validly issued and
fully paid and non-assessable.
(vi) The issuance of the Securities is not
subject to preemptive or other similar rights arising
by operation of law or, to the best of such counsel=s
knowledge, otherwise.
(vii) The Bank has been at all times since 1934
and prior to the Closing Time duly organized, and is
validly existing and in good standing under the laws
of the United States of America as a federally
chartered savings bank of mutual form, and, at
Closing Time, has become duly organized, validly
existing and in good standing under the laws of the
United States of America as a federally chartered
savings bank of 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 Registration Statement and the
Prospectus; 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 Bank.
(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.
-21-
(ix) Upon consummation of the Reorganization,
all of the issued and outstanding capital stock of
the Bank when issued and delivered pursuant to the
Plan against payment of consideration calculated as
set forth in the Plan and set forth in the
Prospectus, 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.
(x) The OTS has duly approved the Holding
Company Application and the MHC Application and no
action is pending, or to the best of such counsel's
knowledge, threatened respecting the Holding Company
Application or the MHC Application or the acquisition
by the Company of all of the Bank's issued and
outstanding capital stock; the Holding Company
Application and the MHC 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
association 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; the
MHC is duly authorized to be a federal mutual holding
company, and the MHC is duly authorized to own a
majority of the issued and outstanding capital stock
of the company.
(xi) 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 Bank and the MHC, and this
Agreement constitutes the legal, valid and binding
agreement of each of the Company, the Bank and the
MHC, 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 by-laws
of the Company, the Bank or the MHC; 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 Bank and the MHC considered as one
enterprise, upon any property or assets of the
Company, the Bank or the MHC pursuant to any
contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which the Company, the
Bank or the MHC is a party or by which any of them
may
-22-
be bound, or to which any of the property or assets
of the Company, the Bank or the MHC is subject.
(xii) The Prospectus has been duly authorized by
the OTS for final use pursuant to the OTS Regulations
and no action is pending, or to the best of such
counsel's knowledge, is threatened, by the OTS to
revoke such authorization.
(xiii) 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, to the best
of such counsel's knowledge, proceedings therefor
initiated or threatened by the Commission.
(xiv) 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 consummation of the
Reorganization, except as may be required under the
securities or Blue Sky laws of various jurisdictions
as to which no opinion need be rendered.
(xv) 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.
(xvi) 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.
(xvii) There are no legal or governmental
proceedings pending or threatened against or
affecting the Company, the Bank or the MHC 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 Bank or the MHC 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.
(xviii) The information in the Prospectus under
"Risk Factors - Takeover Restrictions," "Dividend
Policy," "Business of the Bank - Legal Proceedings,"
"Taxation," "Regulation," "The Reorganization Effects
of
-23-
the Reorganization," and " - Federal and State Tax
Consequences of the Reorganization," "Restrictions
on Acquisition of the Company" and "Description of
Capital Stock," 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.
(xix) 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 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.
(xx) The Plan has been duly authorized by the
Boards of Directors of the Company, the Bank and the
MHC and, the OTS's approval of the Plan remains in
full force and effect; the Bank's charter has been
amended, effective upon consummation of the
Reorganization and the filing of such amended charter
with the OTS, to authorize the issuance of permanent
capital stock; to the best of such counsel's
knowledge, the Company, the Bank and the MHC have
conducted the Reorganization 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
Reorganization imposed upon the Company or the Bank
by the OTS and, no order has been issued by the OTS
to suspend the Reorganization or the Offerings and no
action for such purpose has been instituted or
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 MHC Application or the Holding Company
Application.
(xxi) To the best of such counsel's knowledge,
the Company, the Bank and the MHC have obtained all
licenses, permits and other governmental
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 and the Bank and the MHC are in all material
respects complying therewith.
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(xxii) Neither the Company, the Bank nor the MHC
is in violation of its certificate of incorporation,
organization certificate, articles of incorporation
or charter, as the case may be, or bylaws (and the
Bank will not be in violation of its charter in stock
form upon consummation of the Reorganization) or, to
the best of such counsel's knowledge, the Company,
the Bank and the MHC 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 Bank or the MHC
is a party or by which the Company, the Bank or the
MHC or any of their property may be bound.
(xxiii) The Company is not required to be
registered as an investment company under the
Investment Company Act of 1940.
(2) The favorable opinion, dated as of Closing Time,
of Housley Kantarian & Bronstein, P.C., 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), (xv) and (xvi) and such other matters as
the Agent may reasonably require.
(3) In giving their opinions required by subsections
(b)(l) and (b)(2), respectively, of this Section, Malizia,
Spidi, Sloane & Fisch, P.C. and Housley Kantarian and
Bronstein, P.C. 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 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 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, Sloane & Fisch, P.C.
and Housley Kantarian & Bronstein, P.C. may rely as to matters
of fact on certificates of officers and directors of the
Company and the Bank and certificates of public officials, and
Housley Kantarian & Bronstein, P.C. may also rely on the
opinion of Malizia, Spidi, Sloane & Fisch, P.C.
(c) At Closing Time referred to in Section 2, the Company, the
Bank and the MHC shall have completed in all material respects the
conditions precedent to the Reorganization in accordance with the Plan,
the applicable OTS Regulations and all other
-25-
applicable laws, regulations, decisions and orders, including all
terms, conditions, requirements and provisions precedent to the
Reorganization imposed upon the Company, the Bank or the MHC by the
OTS, or any other regulatory authority other than those which the OTS
permits to be completed after the Reorganization.
(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 Bank and the MHC considered as one
enterprise, whether or not arising in the ordinary course of business,
and the Agent shall have received a certificate of the Chief Executive
Officer of the Company, of the Bank and of the MHC, the President of
the Company, the Bank and the MHC and the chief financial or chief
accounting officer of the Company, of the Bank and of the MHC, 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 Bank or the MHC from the latest date
as of which the financial condition of the Company, the Bank, or the
MHC as set forth in the Registration Statement and the Prospectus other
than transactions referred to or contemplated therein and transactions
in the ordinary cause of business, (iii) neither the Company, the Bank
nor the MHC shall have received from the OTS any direction (oral or
written) to make any material change in the method of conducting its
business with which it has not complied (which direction, if any, shall
have been disclosed to the Agent) or which materially and adversely
would affect the business, financial condition or results of operations
of the Company, the Bank or the MHC taken as a whole, (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) the Company, the Bank and the MHC 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
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 Reorganization Application.
(e) At the time of the execution of this Agreement, the Agent
shall have received from KPMG Peat Marwick 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 Bank and its subsidiaries within the meaning of the Code
of Ethics of the American Institute of Certified Public Accountants,
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
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Regulations; (iii) based upon limited procedures as agreed upon by the
Agent and KPMG Peat Marwick LLP set forth in detail in such letter,
nothing has come to their attention which causes them to believe that
(A) the unaudited financial statements and supporting schedules of the
Bank and its subsidiaries 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 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 Information" 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
days prior to the date of this Agreement, there has been any increase
in the consolidated long term or short term debt of the Bank and its
subsidiaries or any decrease in consolidated total assets, the
allowance for loan losses, total deposits or net worth of the Bank and
its subsidiaries, in each case as compared with the amounts shown in
the September 30, 1998 balance sheet included in the Registration
Statement or, (D) during the period from September 30, 1998 to a
specified date not more than five days prior to the date of this
Agreement, there were any decreases, as compared with the
corresponding period in the preceding year, in total interest income,
net interest income, net interest income after provision for loan
losses, income before income tax expense or net income of the Bank and
its subsidiaries, 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 Bank and the MHC identified in
such letter.
(f) At Closing Time, the Agent shall have received from KPMG
Peat Marwick LLP a letter, dated as of Closing Time, to the effect
that they reaffirm the statements made in the letter furnished
pursuant to subsection (d) of this Section, except that the specified
date referred to shall be a date not more than five days prior to
Closing Time.
(g) At Closing Time, the Securities shall have been approved
for listing on the Nasdaq Stock 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.
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(h) At Closing Time, counsel for the Agent shall have been
furnished with such documents and opinions as they may require for the
purpose of enabling them to pass upon the issuance and sale of the
Securities as herein contemplated and related proceedings, or in order
to evidence the accuracy of any of the representations or warranties,
or the fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Company in connection with the issuance and
sale of the Securities as herein contemplated shall be satisfactory in
form and substance to the Agent and counsel for the Agent.
(i) 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 or New York authorities.
SECTION 6. INDEMNIFICATION.
(a) The Company, the Bank and the MHC, 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 Reorganization or any action taken by the Agent where acting as
agent of the Company 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 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;
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(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 Bank or the MHC, 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 (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 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, the Bank, the MHC, their directors and trustees, 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.
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(d) The Company, the Bank and the MHC also agree that the
Agent shall not have any liability (whether direct or indirect, in contract or
tort or otherwise) to the Bank, the Company, the MHC, its security holders or
the Bank's, the Company's or the MHC=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 any 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 Bank, the MHC, 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 Bank and the MHC jointly and severally agree to reimburse the
Agent for all reasonable and necessary out-of-pocket expenses incurred by it in
connection with preparing or appearing as a witness or otherwise giving
testimony and to compensate the Agent in an amount to be mutually agreed upon.
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 Bank, the MHC 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 Bank or the MHC 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 Bank and the MHC
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 Bank and the MHC on the one hand and the Agent on the other,
as reflected in clause (i), but also the relative fault of the Company, the Bank
and the MHC 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 Bank, and the
MHC, each officer of the Company who signed the Registration Statement, and each
person, if any, who controls the Company, the Bank or the MHC 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 Bank and the MHC.
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
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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
Bank or the MHC 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.
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 Bank, or the MHC, or the Company, the Bank or the MHC considered as one
enterprise, whether or not arising in the ordinary course of business, or (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 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 Stock 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 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 Bank or the MHC 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 Reorganization is not
consummated on or prior to
, 1999.
(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 James C. Stewart, Esq., Housley Kantarian & Bronstein, P.C., 1220
-31-
19th Street, N.W., Suite 700, Washington, D.C. 20036; notices to the Company,
the Bank and the MHC shall be directed to any of them at 205 East Orange Street,
Lakeland, Florida 33801, attention of Gregory Wilkes, with a copy to Charles E.
Sloane, Esq., Malizia, Spidi, Sloane & Fisch, P.C., 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 Bank and the MHC 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 Bank and the MHC 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 Bank and the MHC 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.
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
September 16, 1998, by and between the Agent and the Company and the Bank,
relating to the Agent=s providing conversion agent services to the Company and
the Bank in connection with the Reorganization. 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.
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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, the Company, the Bank and the MHC
on the other in accordance with its terms.
Very truly yours,
FLORIDAFIRST BANCORP
By:
-----------------------------------------
Title:
FIRST FEDERAL FLORIDA
By:
-----------------------------------------
Title:
FLORIDAFIRST BANCORP, MHC
By:
-----------------------------------------
Title:
CONFIRMED AND ACCEPTED, as of the date first above written:
SANDLER O'NEILL & PARTNERS, L.P.
By: Sandler O'Neill & Partners Corp.,
the sole general partner
By:
-----------------------------------------
Catherine A. Lawton
Vice President