FIRST ALLEN PARISH BANCORP, INC.
212,500 TO 287,500 SHARES
COMMON STOCK
(PAR VALUE $.01 PER SHARE)
$10.00 PER SHARE
SALES AGENCY AGREEMENT
----------------------
Trident Securities, Inc.
4601 Six Forks Road, Suite 400
Raleigh, North Carolina 27609
Dear Sirs:
First Allen Parish Bancorp, Inc., a Delaware corporation (the "Company"),
and First Federal Savings and Loan Association of Allen Parish, a federally
chartered and insured mutual savings and loan association (the "Association"),
hereby confirm, as of August __, 1996, their respective agreements with Trident
Securities, Inc. ("Trident"), a broker-dealer registered with the Securities and
Exchange Commission ("Commission") and a member of the National Association of
Securities Dealers, Inc. ("NASD"), as follows:
1. Introductory. The Association intends to convert from a federally
chartered mutual savings and loan association to a federally chartered stock
savings and loan association as a wholly owned subsidiary of the Company
(together with the Offerings, as defined below, the issuance of shares of common
stock of the Association to the Company and the incorporation of the Company,
the "Conversion") pursuant to a plan of conversion adopted on June 3, 1996 (the
"Plan"). In accordance with the Plan, the Company is offering shares of its
common stock, par value $.01 per share (the "Shares" and the "Common Stock"),
pursuant to nontransferable subscription rights in a subscription offering (the
"Subscription Offering") to certain depositors and borrowers of the Association,
the Association's tax-qualified employee benefit plans (i.e., the Association's
Employee Stock Ownership Plan (the "ESOP")) and to employees, officers and
directors. Shares of the Common Stock not sold in the Subscription Offering may
be offered to the general public in a community offering, with preference being
given to natural persons residing in Allen Parish, Louisiana (the "Local
Community") (the "Community Offering", and together with the Subscription
Offering the "Offerings"), subject to the right of the Company and the
Association, in their absolute discretion, to reject orders in the Community
Offering in whole or in part. It is anticipated that shares of the Common Stock
not otherwise subscribed for in the Subscription and Community Offerings may be
offered at the discretion of the Company to certain members of the general
public as part of a community offering on a best efforts basis by a selling
group of selected broker-dealers to be managed by
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Trident Securities, Inc. (the "Syndicated Community Offering"). In the
Offerings, the Company is offering between 212,500 and 287,500 Shares, with the
possibility of offering up to 330,625 Shares without a resolicitation of
subscribers, as contemplated by Title 12 of the Code of Federal Regulations,
Part 563b. No Eligible Account Holder or Other Member may purchase in their
capacity as such more than 5,000 shares of Common Stock in the Subscription
Offering. No individual person or other entity, together with associates of and
persons acting in concert with such person, may purchase in the Community
Offering and the Syndicated Community Offering more than 5,000 shares of Common
Stock. No person, individually or together with associates of and persons acting
in concert with such person, may purchase more than 10,000 shares of Common
Stock in the Conversion.
The Company and the Association have been advised by Trident that it will
utilize its best efforts in assisting the Company and the Association with the
sale of the Shares in the Offerings and, if deemed necessary by the Company, in
a syndicated community offering. Prior to the execution of this Agreement, the
Company has delivered to Trident the Prospectus dated August __, 1996 (as
hereinafter defined) and all supplements thereto to be used in the Offerings.
Such Prospectus contains information with respect to the Company, the
Association and the Shares.
2. Representations and Warranties.
(a) The Company and the Association jointly and severally represent
and warrant to Trident that:
(i) The Company has filed with the Commission a registration
statement, including exhibits and an amendment or amendments thereto,
on Form SB-2 (No. 333-6803), including a Prospectus relating to the
Offerings, for the registration of the Shares under the Securities Act
of 1933, as amended (the "Act"); and such registration statement has
become effective under the Act and no stop order has been issued with
respect thereto and no proceedings therefor have been initiated or, to
the Company's best knowledge, threatened by the Commission. Except as
the context may otherwise require, such registration statement, as
amended or supplemented, on file with the Commission at the time the
registration statement became effective, including the Prospectus,
financial statements, schedules, exhibits and all other documents
filed as part thereof, as amended and supplemented, is herein called
the "Registration Statement," and the prospectus, as amended or
supplemented, on file with the Commission at the time the Registration
Statement became effective is herein called the "Prospectus," except
that if the prospectus filed by the Company with the Commission
pursuant to Rule 424(b) of the general rules and regulations of the
Commission under the Act (together with the enforceable published
policies and actions of the
First Allen Parish Bancorp, Inc.
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Page 3
Commission thereunder, the "SEC Regulations") differs from the form of
prospectus on file at the time the Registration Statement became
effective, the term "Prospectus" shall refer to the Rule 424(b)
prospectus from and after the time it is filed with or mailed for
filing to the Commission and shall include any amendments or
supplements thereto from and after their dates of effectiveness or
use, respectively. If any Shares remain unsubscribed following
completion of the Subscription Offering and the Community Offering,
the Company (i) will, if required by the SEC Regulations, promptly
file with the Commission a post-effective amendment to such
Registration Statement relating to the results of the Subscription and
the Community Offerings, 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, or mail for filing to, the Commission a prospectus or prospectus
supplement containing information relating to the results of the
Subscription and Community Offerings and pricing information pursuant
to Rule 424(c) of the Regulations, in either case in a form reasonably
acceptable to the Company and Trident.
(ii) The Association has filed an Application for Approval of
Conversion on Form AC, including exhibits (as amended or supplemented,
the "Form AC" and together with the Form H-(e)1-S referred to below,
the "Conversion Application") with the Office of Thrift Supervision
(the "Office") under the Home Owners' Loan Act, as amended (the
"HOLA") and the enforceable rules and regulations, including published
policies and actions, of the Office thereunder (the "OTS
Regulations"), which has been approved by the Office; and 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 Form AC have been approved for use
by the Office. No order has been issued by the Office preventing or
suspending the use of the Prospectus or the Proxy Statement; and no
action by or before the Office revoking such approvals is pending or,
to the Association's best knowledge, threatened. The Company has filed
with the Office the Company's application on Form H-(e)1-S promulgated
under the savings and loan holding company provisions of the HOLA and
the regulations promulgated thereunder and has received approval of
its acquisition of the Association from the Office.
(iii) At the date of the Prospectus and at all times subsequent
thereto through and including the Closing Date (i) the Registration
Statement and the Prospectus (as amended or supplemented, if amended
or supplemented) complied with the Act and the SEC Regulations, (ii)
the Registration Statement (as amended or supplemented, if amended or
supplemented) did not contain an untrue statement of a material fact
or omit
First Allen Parish Bancorp, Inc.
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Page 4
to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading, and (iii) the Prospectus (as amended
or supplemented, if amended or supplemented) did not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. Representations or warranties in this subsection shall not
apply to statements or omissions made in reliance upon and in
conformity with written information furnished to the Company or the
Association relating to Trident by or on behalf of Trident expressly
for use in the Registration Statement or Prospectus.
(iv) The Company has been duly incorporated as a Delaware
corporation and the Association has been duly organized as a mutual
savings and loan assocication under the laws of the United States, and
each of them is validly existing and in good standing under the laws
of the jurisdiction of its organization with full power and authority
to own its property and conduct its business as described in the
Registration Statement and Prospectus; the Association is a member in
good standing of the Federal Home Loan Bank of Cincinnati; and the
deposit accounts of the Association are insured by the Savings
Association Insurance Fund ("SAIF") administered by the Federal
Deposit Insurance Corporation ("FDIC") up to the applicable legal
limits. The Company is qualified to do business as a foreign
corporation in the state of Louisiana. Except as noted above, neither
the Company nor the Association is required to be qualified to do
business as a foreign corporation in any jurisdiction where non-
qualification would have a material adverse effect on the Company and
the Association, taken as a whole. The Association does not own equity
securities of or an equity interest in any business enterprise other
than the Company. Upon amendment of the Association's charter and
bylaws as provided in the rules and regulations of the Office and
completion of the sale by the Company of the Shares as contemplated by
the Prospectus, (i) the Association will be converted pursuant to the
Plan to a federally chartered capital stock savings and loan
association with full power and authority to own its property and
conduct its business as described in the Prospectus, (ii) all of the
authorized and outstanding capital stock of the Association will be
owned of record and beneficially by the Company, and (iii) the Company
will have no direct subsidiaries other than the Association.
(v) The Association has good, marketable and insurable title to
all assets material to its business and to those assets described in
the Prospectus as owned by it, free and clear of all material liens,
charges, encumbrances or restrictions, except for liens for taxes not
yet due, except as described in the
First Allen Parish Bancorp, Inc.
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Prospectus and except as could not in the aggregate have a material
adverse effect upon the operations or financial condition of the
Association; and all of the leases and subleases material to the
operations or financial condition of the Association, under which it
holds properties, including those described in the Prospectus, are in
full force and effect as described therein.
(vi) The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly
and validly authorized by all necessary actions on the part of each of
the Company and the Association, and this Agreement is a valid and
binding obligation with valid execution and delivery by each of the
Company and the Association, enforceable in accordance with its terms
(except as the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, reorganization or similar laws relating to or
affecting the enforcement of creditors' rights generally or the rights
of creditors of savings and loan holding companies the accounts of
whose subsidiaries are insured by the FDIC or by general equity
principles, regardless of whether such enforceability is considered in
a proceeding in equity or at law, and except to the extent that the
provisions of Sections 8 and 9 hereof may be unenforceable as against
public policy or pursuant to Section 23A of the Federal Reserve Act,
12 U.S.C. Section 371c ("Section 23A")).
(vii) There is no litigation or governmental proceeding pending
or, to the best knowledge of the Company or the Association,
threatened against or involving the Company, the Association or any of
their respective assets which individually or in the aggregate would
reasonably be expected to have a material adverse effect on the
condition (financial or otherwise), results of operations and
business, including the assets and properties, of the Company and the
Association, taken as a whole.
(viii) The Company and the Association have received the opinion
of Luse Lehman Gorman Pomerenk & Schick, P.C. to the effect that the
Conversion will constitute a tax-free reorganization under the
Internal Revenue Code of 1986, as amended, and the opinion of Darnall,
Sikes, Kolder, Frederick & Rainey to the effect that the Conversion
will not be a taxable transaction for the Association or the Company
under the income tax laws of Louisiana, and the facts relied upon in
such opinions are accurate and complete.
(ix) Each of the Company and the Association has all such
corporate power, authority, authorizations, approvals and orders as
may be required to enter into this Agreement and to carry out the
provisions and conditions hereof, subject to the limitations set forth
herein and subject to the
First Allen Parish Bancorp, Inc.
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satisfaction of certain conditions imposed by the Office in connection
with its approvals of the Form AC and the Application H-(e)1-S, and
except as may be required under the securities, or "blue sky," laws of
various jurisdictions, and in the case of the Company, as of the
Closing Date, will, to the actual knowledge of the Association, have
such approvals and orders to issue and sell the Shares to be sold by
the Company as provided herein, and in the case of the Association, as
of the Closing Date, will, to the knowledge of the Company, have such
approvals and orders to issue and sell the Shares of its Common Stock
to be sold to the Company as provided in the Plan, subject to the
issuance of an amended charter in the form required for federally
chartered stock savings and loan associations (the "Stock Charter"),
the form of which Stock Charter has been approved by the Office.
(x) Neither the Company, the Association nor the Subsidiary is
in violation of any rule or regulation of the Office or the FDIC that
could reasonably be expected to result in any enforcement action
against the Company, the Association or their officers or directors
that could reasonably be expected to have a material adverse effect on
the condition (financial or otherwise), operations, businesses, assets
or properties of the Company and the Association, taken as a whole.
(xi) The financial statements and any related notes or schedules
which are included in the Registration Statement and the Prospectus
fairly present the financial condition, income, retained earnings and
cash flows of the Association at the respective dates thereof and for
the respective periods covered thereby and comply as to form with the
applicable accounting requirements of the SEC Regulations and the
applicable accounting regulations of the Office. Such financial
statements have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods
involved, except as set forth therein, and such financial statements
are consistent with financial statements and other reports filed by
the Association with supervisory and regulatory authorities except as
such generally accepted accounting principles may otherwise require.
The tables in the Prospectus accurately present the information
purported to be shown thereby at the respective dates thereof and for
the respective periods therein.
(xii) There has been no material change in the condition
(financial or otherwise), results of operations or business, including
assets and properties, of the Company and the Association, taken as a
whole, since the latest date as of which such condition is set forth
in the Prospectus, except as set forth therein; and the
capitalization, assets, properties and business of each of the Company
and the Association conform in all material respects to the
descriptions thereof contained in the Prospectus. Neither the Company
nor
First Allen Parish Bancorp, Inc.
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the Association has any material liabilities of any kind, contingent
or otherwise, except as set forth in the Prospectus.
(xiii) There has been no breach or default (or the occurrence of
any event which, with notice or lapse of time or both, would
constitute a default) under, or creation or imposition of any lien,
charge or other encumbrance upon any of the properties or assets of
the Company or the Association pursuant to any of the terms,
provisions or conditions of, any agreement, contract, indenture, bond,
debenture, note, instrument or obligation to which the Company or the
Association is a party or by which any of them or any of their
respective assets or properties may be bound or is subject, or
violation of any governmental license or permit or any enforceable
published law, administrative regulation or order or court order,
writ, injunction or decree, which breach, default, encumbrance or
violation would have a material adverse effect on the condition
(financial or otherwise), operations, business, assets or properties
of the Company and the Association taken as a whole; all agreements
which are material to the condition (financial or otherwise), results
of operations or business of the Company and the Association taken as
a whole are in full force and effect, and no party to any such
agreement has instituted or, to the best knowledge of the Company and
the Association, threatened any action or proceeding wherein the
Company or the Association would be alleged to be in default
thereunder.
(xiv) Neither the Company nor the Association is in violation of
its respective certificate of incorporation, charter or bylaws. The
execution and delivery hereof and the consummation of the transactions
contemplated hereby by the Company and the Association do not conflict
with or result in a breach of the charter or bylaws of the Company or
the Association (in either mutual or stock form) or constitute a
material breach of or default (or an event which, with notice or lapse
of time or both, would constitute a default) under, give rise to any
right of termination, cancellation or acceleration contained in, or
result in the creation or imposition of any lien, charge or other
encumbrance upon any of the properties or assets of the Company or the
Association pursuant to any of the terms, provisions or conditions of,
any material agreement, contract, indenture, bond, debenture, note,
instrument or obligation to which the Company or the Association is a
party or violate any governmental license or permit or any enforceable
published law, administrative regulation or order or court order,
writ, injunction or decree (subject to the satisfaction of certain
conditions imposed by the Office in connection with its approval of
the Conversion Application), which breach, default, encumbrance or
violation would have a material adverse effect on the condition
(financial or otherwise), operations or business of the Company and
the Association taken as a whole.
First Allen Parish Bancorp, Inc.
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(xv) Subsequent to the respective dates as of which information
is given in the Registration Statement and Prospectus and prior to the
Closing Date (as hereinafter defined), except as otherwise may be
indicated or contemplated therein, neither the Company nor the
Association has issued any securities which will remain issued at the
Closing Date or incurred any liability or obligation, direct or
contingent, or borrowed money, except liabilities, obligations or
borrowings in the ordinary course of business, or entered into any
other transaction not in the ordinary course of business and
consistent with prior practices, which is material in light of the
business of the Company and the Association, taken as a whole.
(xvi) Upon consummation of the Conversion, the authorized,
issued and outstanding equity capital of the Company shall be within
the range as set forth in the Prospectus under the caption
"Capitalization," and no Common Stock of the Company shall be
outstanding immediately prior to the Closing Date; the issuance and
the sale of the Shares of the Company have been duly authorized by all
necessary action of the Company and approved by the Office and, when
issued in accordance with the terms of the Plan and paid for, shall be
validly issued, fully paid and nonassessable and shall conform to the
description thereof contained in the Prospectus; the issuance of the
Shares is not subject to preemptive rights, except as set forth in the
Prospectus; and purchasers of the Shares from the Company, upon
issuance thereof against payment therefor, will acquire such Shares
free and clear of all claims, encumbrances, security interests and
liens against the Company whatsoever. The certificates representing
the Shares will conform in all material respects with the requirements
of applicable laws and regulations. The issuance and sale of the
capital stock of the Association to the Company has been duly
authorized by all necessary action of the Association and the Company
and appropriate regulatory authorities (subject to the satisfaction of
various conditions imposed by the Office in connection with its
approval of the Conversion Application), and such capital stock, when
issued in accordance with the terms of the Plan, will be fully paid
and nonassessable and will conform in all material respects to the
description thereof contained in the Prospectus.
(xvii) No approval of any regulatory or supervisory or other
public authority is required in connection with the execution and
delivery of this Agreement or the issuance of the Shares, except for
the declaration of effectiveness of any required post-effective
amendment by the Commission and approval thereof by the Office and
approval of the Company's application on Form H-(e)1-S by the Office,
the issuance of the Stock Charter by the Office and as may be required
under the securities laws of various jurisdictions.
First Allen Parish Bancorp, Inc.
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(xviii) All contracts and other documents required to be filed as
exhibits to the Registration Statement or the Conversion Application
have been filed with the Commission and/or the Office, as the case may
be.
(xix) Darnall, Sikes, Kolder, Frederick & Rainey, which has
audited the financial statements of the Association at December 31,
1995 and 1994 and for the years ended December 31, 1995, 1994 and 1993
included in the Prospectus, is an independent public accountant within
the meaning of the Code of Professional Ethics of the American
Institute of Certified Public Accountants and Title 12 of the Code of
Federal Regulations, Section 571.2(c)(3).
(xx) The Company and the Association have timely filed all
required federal, state and local franchise tax returns, and no
deficiency has been asserted with respect to such returns by any
taxing authorities, and the Company and the Association have paid all
taxes that have become due and, to the best of their knowledge, have
made adequate reserves for similar future tax liabilities, except
where any failure to make such filings, payments and reserves, or the
assertion of such a deficiency, would not have a material adverse
effect on the condition of the Company and the Association, taken as a
whole.
(xxi) All of the loans represented as assets of the Association
on the most recent financial statements of the Association 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 Regulation 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 have a material adverse effect on the
Company and the Association, taken as a whole.
(xxii) The records of account holders, depositors, borrowers and
other members of the Association delivered to Trident by the
Association or its agent for use during the Conversion have been
prepared or reviewed by the Association and, to the best knowledge of
the Company and the Association, are reliable and accurate.
(xxiii) None of the Company, the Association or the employees of
the Company or the Association, has made any payment of funds to the
Company or the Association prohibited by law, and no funds of the
Company or the Association have been set aside to be used for any
payment prohibited by law.
First Allen Parish Bancorp, Inc.
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(xxiv) To the best knowledge of the Company and the Association,
the Company and the Association are in compliance with all laws, rules
and regulations relating to environmental protection and neither the
Company nor the Association believes that the Company or the
Association is subject to liability under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended, or any similar law, except for violations which, if asserted,
would not have a material adverse effect on the Company and the
Association, taken as a whole. There are no actions, suits, regulatory
investigations or other proceedings pending or, to the best knowledge
of the Company or the Association, threatened against the Company or
the Association relating to environmental protection. To the best
knowledge of the Company and the Association, no disposal, release or
discharge of hazardous or toxic substances, pollutants or
contaminants, including petroleum and gas products, as any of such
terms may be defined under federal, state or local law, has been
caused by the Company or the Association or, to the best knowledge of
the Company or the Association, has occurred on, in or at any of the
facilities or properties of the Company or the Association, except
such disposal, release or discharge which would not have a material
adverse effect on the Company or the Association, taken as a whole.
(xxv) At the Closing Date, the Company and the Association will
have completed the conditions precedent to, and shall have conducted
the Conversion in all material respects in accordance with, the Plan,
the OTS Regulations and all other applicable laws, regulations,
published decisions and orders, including all terms, conditions,
requirements and provisions precedent to the Conversion imposed by the
Office.
(b) Trident represents and warrants to the Company and the
Association that:
(i) Trident is registered as a broker-dealer with the
Commission, and is in good standing with the Commission and the NASD.
(ii) Trident is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation, with
full corporate power and authority to provide the services to be
furnished to the Company and the Association hereunder.
(iii) The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly
and validly authorized by all necessary action on the part of Trident,
and this Agreement is a legal, valid and binding obligation of
Trident, enforceable in
First Allen Parish Bancorp, Inc.
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accordance with its terms (except as the enforceability thereof may be
limited by bankruptcy, insolvency, moratorium, reorganization or
similar laws relating to or affecting the enforcement of creditors'
rights generally or the rights of creditors of registered broker-
dealers accounts of whose may be protected by the Securities Investor
Protection Corporation or by general equity principles, regardless of
whether such enforceability is considered in a proceeding in equity or
at law, and except to the extent that the provisions of Sections 8 and
9 hereof may be unenforceable as against public policy or pursuant to
Section 23A).
(iv) Each of Trident and, to Trident's knowledge, its employees,
agents and representatives who shall perform any of the services
required hereunder to be performed by Trident shall be duly authorized
and shall have all licenses, approvals and permits necessary to
perform such services, and Trident is a registered selling agent in
the jurisdictions listed in Exhibit A hereto and will remain
registered in such jurisdictions in which the Company is relying on
such registration for the sale of the Shares, until the Conversion is
consummated or terminated.
(v) The execution and delivery of this Agreement by Trident, the
fulfillment of the terms set forth herein and the consummation of the
transactions contemplated hereby shall not violate or conflict with
the corporate charter or bylaws of Trident or violate, conflict with
or constitute a breach of, or default (or an event which, with notice
or lapse of time, or both, would constitute a default) under, any
material agreement, indenture or other instrument by which Trident is
bound or under any governmental license or permit or any law,
administrative regulation, authorization, approval or order or court
decree, injunction or order.
(vi) Any funds received by Trident to purchase Common Stock will
be handled in accordance with Rule 15c2-4 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
(vii) There is not now pending or, to Trident's knowledge,
threatened against Trident any action or proceeding before the
Commission, the NASD, any state securities commission or any state or
federal court concerning Trident's activities as a broker-dealer.
3. Employment of Trident; Sale and Delivery of the Shares. On the basis
of the representations and warranties herein contained, but subject to the terms
and conditions herein set forth, the Company and the Association hereby employ
Trident as their agent to utilize its best efforts in assisting the Company with
the Company's sale of the Shares in the Subscription Offering and Community
Offering. The employment of Trident hereunder
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shall terminate (a) forty-five (45) days after the Subscription and Community
Offering closes, unless the Company and the Association, with the approval of
the Office, are permitted to extend such period of time, or (b) upon
consummation of the Conversion, whichever date shall first occur.
In the event the Company is unable to sell a minimum of 212,500 Shares (or
such lesser amount as the Office may permit) within the period herein provided,
this Agreement shall terminate, and the Company and the Association shall refund
promptly to any persons who have subscribed for any of the Shares, the full
amount which it may have received from them, together with interest as provided
in the Prospectus, and no party to this Agreement shall have any obligation to
the other party hereunder, except as set forth in Sections 6, 8(a) and 9 hereof.
Appropriate arrangements for placing the funds received from subscriptions for
Shares in special interest-bearing accounts with the Association until all
Shares are sold and paid for were made prior to the commencement of the
Subscription and Community Offering, with provision for prompt refund to the
purchasers as set forth above, or for delivery to the Company if all Shares are
sold.
If all conditions precedent to the consummation of the Conversion are
satisfied, including the sale of all Shares required by the Plan to be sold, the
Company agrees to issue or have issued such Shares and to release for delivery
certificates to subscribers thereof for such Shares on the Closing Date against
payment to the Company by any means authorized pursuant to the Prospectus, at
the principal office of the Company at 222 South 10th Street, P.O. Box 706,
Oakdale, Louisiana 71463 or at such other place as shall be agreed upon between
the parties hereto. The date upon which Trident is paid the compensation due
hereunder is herein called the "Closing Date."
Trident agrees either (a) upon receipt of executed order forms of
subscribers to forward, for deposit in a segregated account, the offering price
of the Common Stock ordered on or before twelve noon on the next business day
following receipt or execution of an order form by Trident to the Association or
(b) to solicit indications of interest in which event (i) Trident will
subsequently contact any potential subscriber indicating interest to confirm the
interest and give instructions to execute and return an order form or to receive
authorization to execute the order form on the subscriber's behalf, (ii) Trident
will mail acknowledgements of receipt of orders to each subscriber confirming
interest on the business day following such confirmation, (iii) Trident will
debit accounts of such subscribers on the fifth business day ("debit date")
following receipt of the confirmation referred to in (i), and (iv) Trident will
forward completed order forms together with such funds to the Association on or
before twelve noon on the next business day following the debit date for deposit
in a segregated account. Trident acknowledges that if the procedure in (b) is
adopted, subscribers' funds are not required to be in their accounts until the
debit date.
In addition to the expenses specified in Section 6 hereof, Trident shall
receive the following compensation for its services hereunder:
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(a) (i) a management fee of $75,000 and (ii) a commission, not to
exceed 5.5%, to be agreed upon by Trident and the Company for Shares sold
by other member firms of the NASD through a selected dealers arrangement
(the "Selected Dealer Offering"). All such fees are to be payable in next-
day funds to Trident on the Closing Date.
(b) Trident shall be reimbursed for allocable expenses, including but
not limited to travel, communications, legal fees and postage, incurred by
it whether or not the Offerings are successfully completed; provided,
however, that reimbursable legal fees will not exceed $25,000 (excluding
reasonable out of pocket expenses), that other reimbursable expenses will
not exceed $10,000 and that neither the Company nor the Association shall
pay or reimburse Trident for any of the foregoing expenses accrued after
Trident shall have notified the Company or the Association of its election
to terminate this Agreement pursuant to Section 11 hereof or after such
time as the Company or the Association shall have given notice in
accordance with Section 12 hereof that Trident is in breach of this
Agreement. Full payment to defray Trident's reimbursable expenses shall be
made in next-day funds on the Closing Date or, if the Conversion is not
completed and is terminated for any reason, within ten (10) business days
of receipt by the Company of a written request from Trident for
reimbursement of its expenses. Trident acknowledges receipt of $10,000
advance payment from the Association which shall be credited against the
total reimbursement due Trident hereunder.
(c) Notwithstanding the limitations on reimbursement of Trident for
allocable expenses provided in the immediately preceding paragraph (b), in
the event that a resolicitation or other event causes the Offerings to be
extended beyond their original expiration date, Trident shall be reimbursed
for its allocable expenses incurred during such extended period, provided
that the allowance for allocable expenses provided for in the immediately
preceding paragraph (b) above have been exhausted and subject to the
following. Such reimbursement shall not exceed an amount equal to the
product obtained by dividing $10,000 (original out-of-pocket expenses) by
the total number of days of the unextended Subscription Offering
(calculated from the date of the Prospectus to the intended close of the
Subscription Offering as stated in the Prospectus) and multiplying such
product by the number of days of the extension (that number of days from
the date of the supplemental prospectus used in the extended Subscription
Offering to the closing of the extension of the Subscription Offering
described in such supplemental prospectus).
The Company shall pay any stock issue and transfer taxes which may be
payable with respect to the sale of the Shares. The Company and the Association
shall also pay all expenses of the Conversion incurred by them or on their prior
approval including but not limited to their attorneys' fees, NASD filing fees,
and attorneys' fees relating to any required state securities laws research and
filings, telephone charges, air freight, rental equipment,
First Allen Parish Bancorp, Inc.
Sales Agency Agreement
Page 14
supplies, transfer agent charges, fees relating to auditing and accounting and
costs of printing all documents necessary in connection with the Conversion.
4. Offering. Subject to the provisions of Section 7 hereof, Trident is
assisting the Company on a best efforts basis in offering a minimum of 212,500
and a maximum of 287,500 Shares, with the possibility of offering up to 330,625
Shares (except as the Office may permit to be decreased or increased) in the
Subscription and Community Offerings. The Shares are to be offered to the public
at the price set forth on the cover page of the Prospectus and the first page of
this Agreement.
5. Further Agreements. The Company and the Association jointly and
severally covenant and agree that:
(a) The Company shall deliver to Trident, from time to time, such
number of copies of the Prospectus as Trident reasonably may request. The
Company authorizes Trident to use the Prospectus in any lawful manner in
connection with the offer and sale of the Shares.
(b) The Company will notify Trident immediately upon discovery, and
confirm the notice in writing, (i) when any post-effective amendment to the
Registration Statement becomes effective or any supplement to the
Prospectus has been filed, (ii) of the issuance by the Commission of any
stop order relating to the Registration Statement or of the initiation or
the threat of any proceedings for that purpose, (iii) of the receipt of any
notice with respect to the suspension of the qualification of the Shares
for offering or sale in any jurisdiction, and (iv) of the receipt of any
comments (other than those of a non-substantive nature) from the staff of
the Commission relating to the Registration Statement. If the Commission
enters a stop order relating to the Registration Statement at any time, the
Company will make every reasonable effort to obtain the lifting of such
order at the earliest possible moment.
(c) During the time when a prospectus is required to be delivered
under the Act, the Company will comply so far as it is able with all
requirements imposed upon it by the Act, as now in effect and hereafter
amended, and by the SEC Regulations, as from time to time in force, so far
as necessary to permit the continuance of offers and sales of or dealings
in the Shares in accordance with the provisions hereof and the Prospectus.
If during the period when the Prospectus is required to be delivered in
connection with the offer and sale of the Shares any event relating to or
affecting the Company and the Association, taken as a whole, shall occur as
a result of which it is necessary, in the opinion of counsel for Trident,
with the concurrence of counsel to the Company, to amend or supplement the
Prospectus in order to make the Prospectus not false or misleading in light
of the circumstances existing at the time it is delivered to a purchaser of
the Shares, the Company
First Allen Parish Bancorp, Inc.
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Page 15
forthwith shall prepare and furnish to Trident a reasonable number of
copies of an amendment or amendments or of a supplement or supplements to
the Prospectus (in form and substance satisfactory to counsel for Trident)
which shall amend or supplement the Prospectus so that, as amended or
supplemented, the Prospectus shall not contain an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in light of the circumstances existing at the time
the Prospectus is delivered to a purchaser of the Shares, not misleading.
The Company will not file or use any amendment or supplement to the
Registration Statement or the Prospectus of which Trident has not first
been furnished a copy or to which Trident shall reasonably object after
having been furnished such copy. For the purposes of this subsection the
Company and the Association shall furnish such information with respect to
themselves as Trident from time to time may reasonably request.
(d) The Company and the Association have taken or will take all
reasonably necessary action as may be required to qualify or register the
Shares for offer and sale by the Company under the securities or blue sky
laws of such jurisdictions as Trident and the Company may agree upon;
provided, however, that the Company shall not be obligated to qualify as a
foreign corporation to do business under the laws of any such jurisdiction.
In each jurisdiction where such qualification or registration shall be
effected, the Company, unless Trident agrees that such action is not
necessary or advisable in connection with the distribution of the Shares,
shall file and make such statements or reports as are, or reasonably may
be, required by the laws of such jurisdiction.
(e) Appropriate entries will be made in the financial records of the
Association sufficient to establish a liquidation account for the benefit
of eligible account holders in accordance with the requirements of the
Office.
(f) The Company will file a registration statement for the Common
Stock under Section 12(g) of the Exchange Act, prior to completion of the
stock offering pursuant to the Plan and shall request that such
registration statement be effective upon completion of the Conversion. The
Company shall maintain the effectiveness of such registration for a minimum
period of three years or for such shorter period as may be required by
applicable law.
(g) The Company will make generally available to its
security holders as soon as practicable, but not later than 90 days after
the close of the period covered thereby, an earnings statement (in form
complying with the provisions of Rule 158 of the regulations promulgated
under the Act) 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.
First Allen Parish Bancorp, Inc.
Sales Agency Agreement
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(h) For a period of three (3) years from the date of this Agreement
(unless the Common Stock shall have been deregistered under the Exchange
Act), the Company will furnish to Trident, as soon as publicly available
after the end of each fiscal year, a copy of its annual report to
shareholders for such year; and the Company will furnish to Trident (i) as
soon as publicly available, a copy of each report or definitive proxy
statement of the Company filed with the Commission under the Exchange Act
or mailed to shareholders, and (ii) from time to time, such other public
information concerning the Company as Trident may reasonably request.
(i) The Company shall use the net proceeds from the sale of the Shares
consistently with the manner set forth in the Prospectus.
(j) The Company shall not deliver the Shares until each and every
condition set forth in Section 7 hereof has been satisfied, unless such
condition is waived by Trident.
(k) The Company shall advise Trident, if necessary, as to the
allocation of deposits, in the case of eligible account holders and votes,
in the case of other members, and of the Shares in the event of an
oversubscription and shall provide Trident final instructions as to the
allocation of the Shares ("Allocation Instructions") in such event and such
information shall be accurate and reliable. Trident shall be entitled to
rely on such instructions and shall have no liability in respect of its
reliance thereon, including without limitation, no liability for or related
to any denial or grant of a subscription in whole or in part.
(l) The Company and the Association will take such actions and furnish
such information as are reasonably requested by Trident in order for
Trident to ensure compliance with the NASD's "Interpretation Relating to
Free-Riding and Withholding."
6. Payment of Expenses. Whether or not the Conversion is consummated, the
Company and the Association shall pay or reimburse Trident for (a) all filing
fees paid or incurred by Trident in connection with all filings with the NASD
with respect to the Subscription and Community Offerings and, (b) if the Company
is unable to sell a minimum of 212,500 Shares or such lesser amount as the
Office may permit or the Conversion is otherwise terminated, the Company and the
Association shall reimburse Trident for allocable expenses incurred by Trident
relating to the offering of the Shares as provided in Section 3 hereof;
provided, however, that neither the Company nor the Association shall pay or
reimburse Trident for any of the foregoing expenses accrued after Trident shall
have notified the Company or the Association of its election to terminate this
Agreement pursuant to Section 11 hereof or after such time as the Company or the
Association shall have given notice in accordance with Section 12 hereof that
Trident is in breach of this
First Allen Parish Bancorp, Inc.
Sales Agency Agreement
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Agreement.
7. Conditions of Trident's Obligations. Except as may be waived by
Trident, the obligations of Trident as provided herein shall be subject to the
accuracy of the representations and warranties contained in Section 2 hereof as
of the date hereof and as of the Closing Date, to the performance by the Company
and the Association of their obligations hereunder and to the following
conditions :
(a) At the Closing Date, Trident shall receive the favorable opinion
of Luse Lehman Gorman Pomerenk & Schick, P.C., special counsel for the
Company and the Association, dated the Closing Date, addressed to Trident,
in form and substance reasonably satisfactory to counsel for Trident and to
the effect that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, and the Association is validly existing
as a savings and loan association in mutual form in good standing
under the laws of the United States, each with full corporate power
and authority to own its properties and conduct its business as
described in the Prospectus;
(ii) the Association is a member of the Federal Home Loan Bank
of Dallas, and the deposit accounts of the Association are insured by
the SAIF up to the applicable legal limits;
(iii) to the knowledge of such counsel, the activities of the
Association as such activities are described in the prospectus are
permitted under federal and Delaware law to subsidiaries of a Delaware
business corporation and the Association does not have any
subsidiaries;
(iv) the Plan complies with, and to such counsel's knowledge,
the Conversion has been effected in all material respects in
accordance with, the HOLA and the OTS Regulations; to such counsel's
knowledge, all of the terms, conditions, requirements and provisions
with respect to the Plan and the Conversion imposed by the Office,
except with respect to the filing or submission of certain required
post-Conversion reports or other materials by the Company or the
Association, have been complied with by the Company and the
Association; and, to the knowledge of such counsel, no person has
sought to obtain regulatory or judicial review of the final action of
the Office in approving the Plan;
(v) the Company has authorized Common Stock as set forth in
the Registration Statement and the Prospectus, and the description of
such
First Allen Parish Bancorp, Inc.
Sales Agency Agreement
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Common Stock in the Registration Statement and the Prospectus is
accurate in all material respects;
(vi) the issuance and sale of the Shares have been duly and
validly authorized by all necessary corporate action on the part of
the Company; the Shares, upon receipt of payment and issuance in
accordance with the terms of the Plan and this Agreement, will be
validly issued, fully paid, nonassessable and free of preemptive
rights, and purchasers of the Shares from the Company, upon issuance
thereof against payment therefor, will acquire such Shares free and
clear of all claims, encumbrances, security interests and liens
created by the Company;
(vii) the form of certificate used to evidence the Shares is in
proper form and complies in all material respects with applicable
Delaware law;
(viii) the issuance and sale of the capital stock of the
Association to the Company have been duly authorized by all necessary
corporate action of the Association and the Company and have received
the approval of the Office, and such capital stock, upon receipt of
payment and issuance in accordance with the terms of the Plan, will be
validly issued, fully paid and nonassessable and owned of record and,
to the knowledge of such counsel, beneficially by the Company;
(ix) subject to the satisfaction of the conditions to the
Office's approval of the Conversion Application, 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 and the consummation of the Conversion, except with respect
to the issuance to the Association of the Stock Charter by the Office
and as may be required under the "blue sky" laws of various
jurisdictions and except as may be required under the rules and
regulations of the NASD;
(x) to the knowledge of such counsel, the Association has
obtained all licenses, permits and other governmental authorizations
currently required for the conduct of its business as such business is
described in the Prospectus, all such licenses, permits and other
governmental authorizations are in full force and effect and the
Association is in all material respects complying therewith, except
where the failure to hold such licenses, permits or governmental
authorizations or the failure to so comply would not have a material
adverse effect on the Company and the Association, taken as a whole;
(xi) there are no material legal or governmental proceedings
First Allen Parish Bancorp, Inc.
Sales Agency Agreement
Page 19
pending or, to the knowledge of such counsel, threatened against or
involving the assets of the Company or the Association (provided that
for this purpose such counsel need not regard any litigation or
governmental procedure to be "threatened" unless the potential
litigant or government authority has manifested to the management of
the Company or the Association, or to such counsel, a present
intention to initiate such litigation or proceeding);
(xii) to the knowledge of such counsel, the execution and
delivery of this Agreement and the consummation of the Conversion by
the Company and the Association do not constitute a material breach of
or default (or an event which, with notice or lapse of time or both,
would constitute a default) under, give rise to any right of
termination, cancellation or acceleration contained in, or result in
the creation or imposition of any lien, charge or other encumbrance
upon any of the properties or assets of the Company or the Association
pursuant to any of the terms, provisions or conditions of, any
material agreement, contract, indenture, bond, debenture, note,
instrument or obligation to which the Company or the Association is a
party or violate any governmental license or permit or any enforceable
published law, administrative regulation or order or court order,
writ, injunction or decree (subject to the satisfaction of certain
conditions imposed by the Office in connection with its approval of
the Conversion Application), which breach, default, encumbrance or
violation would have a material adverse effect on the condition
(financial or otherwise), operations, business, assets or properties
of the Company and the Association, taken as a whole; and
(xiii) to the knowledge of such counsel, there has been no
material breach of any provision of the Company's or the Association's
certificate of incorporation, charter or bylaws or breach or default
(or the occurrence of any event which, with notice or lapse of time or
both, would constitute a default) under any agreement, contract,
indenture, bond, debenture, note, instrument or obligation to which
the Company or the Association is a party or by which any of them or
any of their respective assets or properties may be bound, or any
governmental license or permit, or a violation of any enforceable
published law, administrative regulation or order, or court order,
writ, injunction or decree which breach, default, encumbrance or
violation would have a material adverse effect on the condition
(financial or otherwise), operations, business, assets or properties
of the Company and the Association, taken as a whole;
(xiv) the execution and delivery of this Agreement and the
consummation of the Conversion have been duly and validly authorized
by all necessary corporate action on the part of each of the Company
and the Association;
First Allen Parish Bancorp, Inc.
Sales Agency Agreement
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(xv) this Agreement is a legal, valid and binding obligation
of each of the Company and the Association, enforceable in accordance
with its terms (except as the enforceability thereof may be limited by
bankruptcy, insolvency, moratorium, reorganization, receivership,
conservatorship or similar laws relating to or affecting the
enforcement of creditors' rights generally or the rights of creditors
of depository institutions whose accounts are insured by the FDIC or
savings and loan holding companies the accounts of whose subsidiaries
are insured by the FDIC or by general equity principles, regardless of
whether such enforceability is considered in a proceeding in equity or
at law, and except to the extent that the provisions of Sections 8 and
9 hereof may be unenforceable as against public policy or pursuant to
Section 23A, as to which no opinion need be rendered);
(xvi) the statements in the Prospectus and incorporated by
reference in the Proxy Statement under the captions "Regulation,"
"Dividends," "Restrictions on Acquisitions of Stock and Related
Takeover Defensive Provisions" and "Description of Capital Stock,"
insofar as they are, or refer to, statements of law or legal
conclusions (excluding financial data included therein, as to which an
opinion need not be expressed), have been prepared or reviewed by such
counsel and are correct in all material respects;
(xvii) the Form AC has been approved by the Office, and the
Prospectus and the Proxy Statement have been authorized for use by the
Office; the Registration Statement and any post-effective amendment
thereto has been declared effective by the Commission; and to the
knowledge of such counsel, no proceedings are pending by or before the
Commission or the Office seeking to revoke or rescind the orders
declaring the Registration Statement effective or approving the
Conversion Application or, to the knowledge of such counsel, are
contemplated or threatened;
(xviii) the execution and delivery of this Agreement and the
consummation of the Conversion by the Company and the Association do
not conflict with or result in a breach of the certificate of
incorporation, charter or bylaws of the Company or the Association (in
either mutual or stock form); and
(xix) the Conversion Application, the Registration Statement,
the Prospectus and the Proxy Statement, in each case as amended,
comply as to form in all material respects with the requirements of
the Act, the HOLA, the SEC Regulations and the OTS Regulations, as the
case may be (except as to information with respect to Trident included
therein and financial statements, notes to financial statements,
financial tables and other financial and statistical data, including
the appraisal, included therein, as to which an
First Allen Parish Bancorp, Inc.
Sales Agency Agreement
Page 21
opinion need not be expressed); to such counsel's knowledge, all
documents and exhibits required to be filed with the Conversion
Application and the Registration Statement have been so filed and the
descriptions in the Conversion Application and the Registration
Statement of such documents and exhibits are accurate in all material
respects.
In rendering such opinions, such counsel may rely as to matters of
fact on certificates of officers and directors of the Company, the
Association and the Subsidiary and certificates of public officials
delivered pursuant hereto. Such counsel may assume that any agreement is
the valid and binding obligation of any parties to such agreement other
than the Company and the Association. Such opinion may be governed by, and
interpreted in accordance with, the Legal Opinion Accord (the "Accord") of
the ABA Section of Business Law (1991), and, as a consequence, such opinion
is subject to the qualifications, exceptions, definitions, limitations on
coverage and other limitations, all as more particularly described in the
Accord, and it should be read in conjunction therewith. In addition, the
General Qualifications set forth in the Accord apply to the opinions set
forth in such opinion. Such opinion may be limited to present statutes,
regulations and judicial interpretations and to facts as they presently
exist; in rendering such opinion, such counsel need assume no obligation to
revise or supplement it should the present laws be changed by legislative
or regulatory action, judicial decision or otherwise; and such counsel need
express no view, opinion or belief with respect to whether any proposed or
pending legislation, if enacted, or any regulations or any policy
statements issued by any regulatory agency, whether or not promulgated
pursuant to any such legislation, would affect the validity of the
execution and delivery by the Company and the Association of this Agreement
or the issuance of the Shares.
(c) At the Closing Date, Trident shall receive the letter of Luse
Lehman Gorman Pomerenk & Schick, P.C., special counsel for the Company and
the Association, dated the Closing Date, addressed to Trident, in form and
substance reasonably satisfactory to counsel for Trident and to the effect
that: based on such counsel's participation in conferences with
representatives of the Company, the Association, its counsel, the
independent appraiser, the independent certified public accountants,
Trident and its counsel, review of documents and understanding of
applicable law (including the requirements of Form SB-2 and the character
of the Registration Statement contemplated thereby) and the experience such
counsel has gained in its practice under the Act, nothing has come to such
counsel's attention that would lead it to believe that the Registration
Statement, as amended or supplemented (except as to information in respect
of Trident contained therein and except as to the financial statements,
notes to financial statements, financial tables and other financial and
statistical data contained therein, as to which such counsel need express
no comment), at the time it became effective contained any untrue statement
of a material fact or omitted to state a material fact required to be
stated
First Allen Parish Bancorp, Inc.
Sales Agency Agreement
Page 22
therein or necessary to make the statements made therein, in light of the
circumstances under which they were made, not misleading, or that the
Prospectus, as amended or supplemented (except as to information in respect
of Trident contained therein and except as to financial statements, notes
to financial statements, financial tables and other financial and
statistical data contained therein as to which such counsel need express no
comment), as of its date and at the Closing Date, contained any untrue
statement of a material fact or omitted to state a material fact necessary
to make the statements therein, in light of the circumstances under which
they were made, not misleading (in making this statement such counsel may
state that it has not undertaken to verify independently the information in
the Registration Statement or Prospectus and, therefore, does not assume
any responsibility for the accuracy of completeness or fairness thereof).
(d) Counsel for Trident shall have been furnished such documents as
they reasonably may require for the purpose of enabling them to review or
pass upon the matters required by Trident, and for the purpose of
evidencing the accuracy, completeness or satisfaction of any of the
representations, warranties or conditions herein contained, including but
not limited to, resolutions of the Board of Directors of the Company and
the Association regarding the authorization of this Agreement and the
transactions contemplated hereby.
(e) Prior to and at the Closing Date, in the reasonable opinion of
Trident, (i) there shall have been no material change in the condition,
financial or otherwise, business or results of operations of the Company
and the Association, taken as a whole, since the latest date as of which
such condition is set forth in the Prospectus, except as referred to
therein; (ii) there shall have been no transaction entered into by the
Company or the Association after the latest date as of which the financial
condition of the Company and the Association is set forth in the Prospectus
other than transactions referred to or contemplated therein, transactions
in the ordinary course of business, and transactions which are not
materially adverse to the Company and the Association, taken as a whole;
(iii) none of the Company or the Association shall have received from the
Office or Commission any direction (oral or written) to make any change in
the method of conducting their respective businesses which is material to
the business of the Company and the Association, taken as a whole, with
which they have not complied; (iv) no action, suit or proceeding, at law or
in equity or before or by any federal or state commission, board or other
administrative agency, shall be pending or threatened against the Company
or the Association or affecting any of their respective assets, wherein an
unfavorable decision, ruling or finding would have a material adverse
effect on the business, operations, financial condition or income of the
Company and the Association, taken as a whole; and (v) the Shares shall
have been qualified or registered for offering and sale by the Company
under the securities or blue sky laws of such jurisdictions as Trident and
First Allen Parish Bancorp, Inc.
Sales Agency Agreement
Page 23
the Company shall have agreed upon.
(f) At the Closing Date, Trident shall receive a certificate of the
principal executive officer and the principal financial officer of each of
the Company and the Association, dated the Closing Date, to the effect
that: (i) they have examined the Prospectus and, at the time the Prospectus
became authorized by the Company for use, the Prospectus did not contain an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading with respect to
the Company or the Association; (ii) since the date the Prospectus became
authorized by the Company for use, no event has occurred which should have
been set forth in an amendment or supplement to the Prospectus which has
not been so set forth, including specifically, but without limitation, any
material change in the business, condition (financial or otherwise) or
results of operations of the Company or the Association and, the conditions
set forth in clauses (ii) through (iv) inclusive of subsection (e) of this
Section 7 have been satisfied; (iii) to the best knowledge of such
officers, no order has been issued by the Commission or the Office to
suspend the Subscription Offering or the Community Offering or the
effectiveness of the Prospectus, and no action for such purposes has been
instituted or threatened by the Commission or the Office; (iv) to the best
knowledge of such officers, no person has sought to obtain review of the
final actions of the Office approving the Plan; and (v) all of the
representations and warranties contained in Section 2 of this Agreement are
true and correct, with the same force and effect as though expressly made
on the Closing Date.
(g) At the Closing Date, Trident shall receive, among other documents,
(i) copies of the letters from the Office authorizing the use of the
Prospectus and the Proxy Statement, (ii) a copy of the order of the
Commission declaring the Registration Statement effective; (iii) copies of
the letters from the Office evidencing the corporate existence of the
Association; (iv) a copy of the letter from the appropriate Delaware
authority evidencing the incorporation (and, if generally available from
such authority, good standing) of the Company; (v) a copy of the Company's
certificate of incorporation certified by the appropriate Delaware
governmental authority; and, (vi) if available, a copy of the letter from
the Office approving the Association's Stock Charter.
(h) As soon as available after the Closing Date, Trident shall receive
a certified copy of the Association's Stock Charter executed by the
appropriate federal governmental authority.
(i) Concurrently with the execution of this Agreement, Trident
acknowledges receipt of a letter from Darnall, Sikes, Kolder, Frederick &
Rainey, independent certified public accountants, addressed to Trident and
the Company, in
First Allen Parish Bancorp, Inc.
Sales Agency Agreement
Page 24
substance and form satisfactory to counsel for Trident, with respect to the
financial statements and certain financial information contained in the
Prospectus.
(j) At the Closing Date, Trident shall receive a letter in form and
substance satisfactory to counsel for Trident from Darnall, Sikes, Kolder,
Frederick & Rainey, independent certified public accountants, dated the
Closing Date and addressed to Trident and the Company, confirming the
statements made by them in the letter delivered by them pursuant to the
preceding subsection as of a specified date not more than five (5) days
prior to the Closing Date.
All such opinions, certificates, letters and documents shall be in
compliance with the provisions hereof only if they are, in the reasonable
opinion of Trident and its counsel, satisfactory to Trident and its counsel. Any
certificates signed by an officer or director of the Company or the Association
prepared for Trident's reliance and delivered to Trident or to counsel for
Trident shall be deemed a representation and warranty by the Company or the
Association to Trident as to the statements made therein. If any condition to
Trident's obligations hereunder to be fulfilled prior to or at the Closing Date
is not so fulfilled, Trident may terminate this Agreement or, if Trident so
elects, may waive any such conditions which have not been fulfilled, or may
extend the time of their fulfillment. If Trident terminates this Agreement as
aforesaid, the Company and the Association shall reimburse Trident for its
expenses as provided in Section 3(b) hereof.
8. Indemnification.
(a) The Company and the Association jointly and severally agree to
indemnify and hold harmless Trident, its officers, directors and employees
and each person, if any, who controls Trident within the meaning of Section
15 of the Act or Section 20(a) of the Exchange Act, against any and all
loss, liability, claim, damage and expense whatsoever and shall further
promptly reimburse such persons for any legal or other expenses reasonably
incurred by each or any of them in investigating, preparing to defend or
defending against any such action, proceeding or claim (whether commenced
or threatened) arising out of or based upon (A) any misrepresentation by
the Company or the Association in this Agreement or any breach of warranty
by the Company or the Association with respect to this Agreement or arising
out of or based upon any untrue or alleged untrue statement of a material
fact or the omission or alleged omission of a material fact required to be
stated or necessary to make not misleading any statements contained in (i)
the Registration Statement or the Prospectus or (ii) any application
(including the Form AC and the Form H-(e)1-S) or other document or
communication (in this Section 8 collectively called "Application")
prepared or executed by or on behalf of the Company or the Association or
based upon written information furnished by or on behalf of the Company or
the Association, whether or not filed in any jurisdiction, to effect the
Conversion or qualify the Shares under the securities laws thereof or
First Allen Parish Bancorp, Inc.
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filed with the Office or Commission, unless such statement or omission was
made in reliance upon and in conformity with written information furnished
to the Company or the Association with respect to Trident by or on behalf
of Trident expressly for use in the Prospectus or any amendment or
supplement thereof or in any Application, as the case may be.
(b) The Company shall indemnify and hold Trident harmless for any
liability whatsoever arising out of (i) the Allocation Instructions or (ii)
any records of account holders, depositors, borrowers and other members of
the Association delivered to Trident by the Association or its agents for
use during the Conversion.
(c) Trident agrees to indemnify and hold harmless the Company and the
Association, their officers, directors and employees and each person, if
any, who controls the Company and the Association within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act, to the same
extent as the foregoing indemnity from the Company and the Association to
Trident, but only with respect to (A) statements or omissions, if any, made
in the Prospectus or any amendment or supplement thereof, in any
Application or to a purchaser of the Shares in reliance upon, and in
conformity with, written information furnished to the Company or the
Association with respect to Trident by or on behalf of Trident expressly
for use in the Prospectus or in any Application; (B) any misrepresentation
or breach of warranty by Trident in Section 2(b) of this Agreement; or (C)
any liability of the Company or the Association which is found in a final
judgment by a court of competent jurisdiction (not subject to further
appeal) to have principally and directly resulted from gross negligence or
willful misconduct of Trident.
(d) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not
relieve it from any liability which it may have to any indemnified party
otherwise than under this Section 8. In case any such action is brought
against any indemnified party, and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with the
other indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party, and after notice from
the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party will not be liable to
such indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defense thereof other than the reasonable cost of investigation except as
otherwise provided herein. In the event the indemnifying party elects to
assume the defense of any such action and retain counsel acceptable to the
indemnified party, the indemnified party
First Allen Parish Bancorp, Inc.
Sales Agency Agreement
Page 26
may retain additional counsel, but shall bear the fees and expenses of such
counsel unless (i) the indemnifying party shall have specifically
authorized the indemnified party to retain such counsel or (ii) the parties
to such suit include such indemnifying party and the indemnified party, and
such indemnified party shall have been advised by counsel that one or more
material legal defenses may be available to the indemnified party which may
not be available to the indemnifying party, in which case the indemnifying
party shall not be entitled to assume the defense of such suit
notwithstanding the indemnifying party's obligation to bear the fees and
expenses of such counsel. An indemnifying party against whom indemnity may
be sought shall not be liable to indemnify an indemnified party under this
Section 8 if any settlement of any such action is effected without such
indemnifying party's consent. To the extent required by law, this Section 8
is subject to and limited by the provisions of Section 23A.
9. Contribution. In order to provide for just and equitable contribution
in circumstances in which the indemnity agreement provided for in Section 8
above is for any reason held to be unavailable to Trident, the Company and/or
the Association other than in accordance with its terms, the Company or the
Association and Trident shall contribute to the aggregate losses, liabilities,
claims, damages, and expenses of the nature contemplated by said indemnity
agreement incurred by the Company or the Association and Trident (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Association on the one hand and Trident on the other from the
offering of the Shares or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above, but also the
relative fault of the Company or the Association on the one hand and Trident on
the other hand in connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or judgments, as well as any other
relevant equitable considerations. The relative benefits received by the Company
and the Association on the one hand and Trident on the other shall be deemed to
be in the same proportions as the total net proceeds from the Conversion
received by the Company and the Association bear to the total fees received by
Trident under this Agreement. The relative fault of the Company or the
Association on the one hand and Trident on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Association or by Trident
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the Association and Trident agree that it would not be just
and equitable if contribution pursuant to this Section 9 were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities or
First Allen Parish Bancorp, Inc.
Sales Agency Agreement
Page 27
judgments referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by the indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this
Section 9, Trident shall not be required to contribute any amount in excess of
the amount by which fees owed Trident pursuant to this Agreement exceeds the
amount of any damages which Trident has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who is not
guilty of such fraudulent misrepresentation. To the extent required by law, this
Section 9 is subject to and limited by the provisions of Section 23A.
10. Survival of Agreements, Representations and Indemnities. The
respective indemnities of the Company and the Association and Trident and the
representation and warranties of the Company and the Association and of Trident
set forth in or made pursuant to this Agreement shall remain in full force and
effect, regardless of any termination or cancellation of this Agreement or any
investigation made by or on behalf of Trident or the Company or the Association
or any controlling person or indemnified party referred to in Section 8 hereof,
and shall survive any termination or consummation of this Agreement and/or the
issuance of the Shares, and any legal representative of Trident, the Company,
the Association and any such controlling persons shall be entitled to the
benefit of the respective agreements, indemnities, warranties and
representations.
11. Termination. Trident may terminate this Agreement by giving the notice
indicated below in this Section at any time after this Agreement becomes
effective as follows:
(a) If any domestic or international event or act or occurrence has
materially disrupted the United States securities markets such as to make
it, in Trident's reasonable opinion, impracticable to proceed with the
offering of the Shares; or if trading on the New York Stock Exchange shall
have suspended; or if the United States shall have become involved in a war
or major hostilities; or if a general banking moratorium has been declared
by a state or federal authority which has a material effect on the
Association or the Conversion; or if a moratorium in foreign exchange
trading by major international banks or persons has been declared; or if
there shall have been a material change in the capitalization, condition or
business of the Company, or if the Association shall have sustained a
material or substantial loss by fire, flood, accident, hurricane,
earthquake, theft, sabotage or other calamity or malicious act, whether or
not said loss shall have been insured; or if there shall have been a
material change in the condition or prospects of the Company or the
Association.
First Allen Parish Bancorp, Inc.
Sales Agency Agreement
Page 28
(b) If Trident elects to terminate this Agreement as provided in this
Section, the Company and the Association shall be notified promptly by
Trident by telephone or telegram, confirmed by letter.
(c) If this Agreement is terminated by Trident for any of the reasons
set forth in subsection (a) above, and to fulfill its obligations, if any,
pursuant to Sections 3, 6, 8(a) and 9 of this Agreement and upon demand,
the Company and the Association shall pay Trident the full amount so owing
thereunder.
(d) The Association may terminate the Conversion in accordance with
the terms of the Plan. Such termination shall be without liability to any
party, except that the Company and the Association shall be required to
fulfill their obligations pursuant to Sections 3(b), 3(c), 6, 8(a) and 9 of
this Agreement.
12. Notices. All communications hereunder, except as herein otherwise
specifically provided, shall be in writing and if sent to Trident shall be
mailed, delivered or telegraphed and confirmed to Trident Securities, Inc., 4601
Six Forks Road, Suite 400, Raleigh, North Carolina 27609, Attention: Mr. R. Lee
Burrows, Jr. (with a copy to Elias, Matz, Tiernan & Herrick L.L.P., 734 15th
Street, N.W., 12th Floor, Washington, D.C. 20005, Attention: Kevin M. Houlihan,
Esquire) and if sent to the Company or the Association, shall be mailed,
delivered or telegraphed and confirmed to First Allen Parish Bancorp, Inc., 222
South 10th Street, P.O. Box 706, Oakdale, Louisiana 71463, Attention: Mr.
Charles L. Galligan, President (with a copy to Luse Lehman Gorman Pomerenk &
Schick, Suite 400, 5335 Wisconsin Avenue, N.W., Washington, D.C., 20015,
Attention: Alan Schick, Esquire).
13. Parties. This Agreement shall inure solely to the benefit of, and
shall be binding upon, Trident, the Company, the Association and the controlling
and other persons referred to in Section 8 hereof, and their respective
successors, legal representatives and assigns, and no other person shall have or
be construed to have any legal or equitable right, remedy or claim under or in
respect of or by virtue of this Agreement or any provision herein contained.
14. Construction. Unless governed by preemptive federal law, this
Agreement shall be governed by and construed in accordance with the substantive
laws of Louisiana.
15. Counterparts. This Agreement may be executed in separate counterparts,
each of which when so executed and delivered shall be an original, but all of
which together shall constitute but one and the same instrument.
First Allen Parish Bancorp, Inc.
Sales Agency Agreement
Page 29
Please acknowledge your agreement to the foregoing by signing below and
returning to the Company one copy of this letter.
FIRST ALLEN PARISH BANCORP, INC. FIRST FEDERAL SAVINGS AND LOAN
ASSOCIATION OF ALLEN PARISH
By: _____________________________ By: _________________________
Charles L. Galligan Charles L. Galligan
President and Chief Executive President and Chief Executive
Officer Officer
Date: August __, 1996 Date: August __, 1996
Agreed to and accepted:
TRIDENT SECURITIES, INC.
By: ___________________
Date: August __, 1996