FULTON BANCORP, INC.
1,105,000 to 1,495,000 Shares
Common Stock
($.01 Par Value)
$10.00 Per Share
SALES AGENCY AGREEMENT
----------------------
Trident Securities, Inc.
4601 Six Forks Road, Suite 400
Raleigh, North Carolina 27609
Dear Sirs:
Fulton Bancorp, Inc., a Delaware corporation (the "Company"), and Fulton
Savings Bank, FSB, a federally chartered and insured mutual savings bank (the
"Bank"), hereby confirm, as of ___________, 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 Bank intends to convert from a federally chartered
------------
mutual savings bank to a federally chartered stock savings bank, as a wholly
owned subsidiary of the Company (the "Conversion"), pursuant to a plan of
conversion adopted on January 9, 1996 (the "Plan"). In accordance with the
Plan, the Company is offering shares of its common stock, par value $.01 per
share (the "Shares"), pursuant to nontransferable subscription rights in a
subscription offering (the "Subscription Offering") to certain depositors and
borrowers of the Bank and to the Bank's Employee Stock Ownership Plan (the
"ESOP"). The Company may offer Shares not subscribed for in the Subscription
Offering in a direct community offering to certain members of the general public
(the "Direct Community Offering") and may offer such Shares through selected
dealers in a syndicated Community Offering (the "Syndicated Community
Offering"). In the Direct Community Offering, preference will be given to
natural persons and trusts of natural persons who are permanent residents of
Boone or Callaway Counties of Missouri. In the Subscription, Direct Community,
and Syndicated Community Offerings (the "Offerings"), the Company is offering up
to 1,495,000 Shares, as contemplated by Title 12 of the Code of Federal
Regulations, Part 563b. No person or entity, other than the ESOP, may purchase
more than 15,000 Shares, and no person or entity, together with associates of
and persons acting in concert with such person or entity, may purchase in the
aggregate more than 20,000 shares.
The Company and the Bank have been advised by Trident that Trident will use
its best efforts in assisting the Company and the Bank with the sale of the
Shares in the Offerings including, if necessary, the Syndicated Community
Offering. Prior to the execution of this
1
Agreement, the Company has delivered to Trident the prospectus dated
_______________, 1996, (as hereinafter defined) and all supplements thereto to
be used in the Offerings. Such prospectus contains information with respect to
the Company, the Bank and the Shares.
2. Representations and Warranties. The Company and the Bank, jointly and
------------------------------
severally, represent and warrant to Trident that:
(a) The Company has filed with the Commission a registration statement,
including exhibits and amendments thereto, on Form S-l (No. 333-8461), including
the prospectus, 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 (provided that for this purpose the
Company shall not regard any such proceeding as "threatened" unless the
Commission has manifested to the management of the Company or counsel a present
intention to initiate such proceeding). Except as the context may otherwise
require, such registration statement, as amended or supplemented, on file with
the Commission at the time such registration statement became effective,
including the prospectus, financial statements, schedules, exhibits and all
other documents filed as part thereof, as amended and supplemented, is
hereinafter 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 hereinafter 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 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
Offerings, the Company (i) will promptly file with the Commission a post-
effective amendment to such Registration Statement relating to the results of
the 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 Offerings and pricing information pursuant to Rule 424(c)
of the SEC Regulations, in either case in a form reasonably acceptable to the
Company and Trident.
(b) The Bank has filed an Application for Approval of Conversion on Form
AC, including exhibits (as amended or supplemented, the "Form AC" and, together
with the Form H-(e)1-S referred to below, the "Conversion Application") with the
Office of Thrift Supervision (the "Office") under the Home Owners' Loan Act, as
amended (the "HOLA") and the rules and regulations, including published policies
and actions, of the Office thereunder (the "OTS Regulations"), which have 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
2
the Office. No order has been issued by the Office preventing or suspending the
use of the Prospectus or the Proxy Statement; and no action by or before the
Office revoking such approvals is pending or, to the Bank's best knowledge,
threatened (provided that for this purpose the Bank shall not regard any action
as "threatened" unless the OTS has manifested to the management of the Bank or
to its counsel the present intention to initiate such action). The Company has
filed with the Office the Company's application on Form H(e)1-S promulgated
under the HOLA and the OTS Regulations and has received approval of its
acquisition of the Bank from the Office.
(c) 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 to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
(iii) the Prospectus (as amended or supplemented, if amended or supplemented)
did not contain any untrue statement of 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 and 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 Bank relating to Trident by or on
behalf of Trident expressly for use in the Registration Statement or Prospectus.
(d) The Company has been duly organized as a Delaware corporation, and the
Bank has been duly organized as a mutual savings bank 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 Bank is a member in good standing of the Federal
Home Loan Bank of Des Moines. The deposit accounts of the Bank are insured by
the Savings Association Insurance Fund ("SAIF") administered by the Federal
Deposit Insurance Corporation ("FDIC") up to the applicable limits. Each of the
Company and the Bank is not required to be qualified to do business as a foreign
corporation in any jurisdiction where non-qualification would have a material
adverse effect on the Company and the Bank, taken as a whole. The Bank does not
directly own equity securities of, or an equity interest in, any business
enterprise except Multi-Purpose Service Agency, Inc., its wholly owned
subsidiary (the "Subsidiary"), and as described in the Prospectus. Upon
amendment of the Bank'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 Bank will be converted
pursuant to the Plan to a federally chartered capital stock savings bank with
full power and authority to own its property and conduct its business as
described in the Prospectus, (ii) all of the authorized and outstanding capital
stock of the converted Bank will be owned of record and beneficially by the
Company, and (iii) the Company will have no direct subsidiaries other than the
converted Bank.
3
(e) Each of the Company, the Bank and the Subsidiary 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 Prospectus and except as could not in the
aggregate have a material adverse effect upon the operations or financial
condition of the Company, the Bank and the Subsidiary, taken as a whole; and all
of the leases and subleases material to the operations or financial condition of
each of the Company, the Bank and the Subsidiary, under which it holds
properties, including those described in the Prospectus, are in full force and
effect as described therein.
(f) 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 Bank, and this
Agreement has been validly executed and delivered and is a valid and binding
obligation of each of the Company and the Bank, enforceable in accordance with
its terms (except as the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, reorganization or similar laws relating to or affecting
the enforcement of creditors' rights generally or the rights of creditors of
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 Section 23A of the Federal Reserve Act ("Section
23A")).
(g) Other than as disclosed in the Prospectus, there is no litigation or
governmental proceeding pending or, to the best knowledge of the Company or the
Bank, threatened against or involving the Company, the Bank, the Subsidiary, or
any of their respective assets, which individually or in the aggregate would
reasonably be expected to have a material adverse effect on the financial
condition, results of operations and business of the Company and the Bank, taken
as a whole.
(h) The Company and the Bank have received the opinion of Breyer & Aguggia,
Washington, D.C., with respect to federal tax consequences of the Conversion,
and the opinion of Moore, Horton & Carlson, P.C., Mexico, Missouri, with respect
to Missouri tax consequences of the Conversion, to the effect, respectively,
that the Conversion will constitute a tax-free reorganization under the Internal
Revenue Code of 1986, as amended, and will not be a taxable transaction for the
Bank or the Company under the laws of Missouri, and the facts relied upon in
such opinions are accurate and complete.
(i) Each of the Company and the Bank has all such corporate power,
authority, authorizations, approvals and orders as may be required to enter into
this Agreement and to carry out the provisions and conditions hereof, subject to
the satisfaction of certain conditions required by the Office in connection with
its approvals of the Form AC and the Application H-(e)1-S, and, in the case of
the Company, except as may be required under the securities, or "blue sky," laws
of various jurisdictions. The Company, as of the Closing Date, will have the
power, authority, authorizations, approvals and orders to issue and sell the
Shares to be sold by the Company as
4
provided herein, and, the Bank, as of the Closing Date, will have such approvals
and orders to issue and sell the shares of its Common Stock to be sold to the
Company as provided in the Plan, subject to the issuance of the amended charter
in the form required for federally chartered stock savings banks (the "Stock
Charter"), the form of which Stock Charter has been approved by the Office.
(j) Neither the Company, the Bank 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 Bank, the
Subsidiary or their officers or directors that might have a material adverse
effect on the financial condition, operations or businesses of the Company, the
Bank and the Subsidiary, taken as a whole.
(k) The consolidated financial statements and any related notes or
schedules which are included in the Registration Statement and the Prospectus
fairly present the consolidated financial condition, income, retained earnings
and cash flows of the Bank 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 Bank with supervisory and regulatory authorities except as such generally
accepted accounting principles may otherwise require. The tables in the
Prospectus accurately present the information purported to be shown thereby at
the respective dates thereof and for the respective periods therein.
(l) There has been no material change in the financial condition, results
of operations or business of the Company, the Bank and the Subsidiary, 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, the Bank and the Subsidiary
conform to the descriptions thereof contained in the Prospectus. None of the
Company, the Bank or the Subsidiary have any material liabilities of any kind,
contingent or otherwise, except as set forth in the Prospectus.
(m) No default exists, and no event has occurred which, with notice or
lapse of time or both, would constitute a default on the part of the Company,
the Bank or the Subsidiary in the due performance and observance of any
obligation to be performed by it, any agreement or any term, covenant or
condition of any agreement, including any bond, debenture note or any other
evidence of indebtedness which is material to the financial condition, results
of operations or business of the Company, the Bank or the Subsidiary, taken as a
whole; said agreements are in full force and effect, and no other party to any
such agreement which is material to the Company, the Bank and the Subsidiary,
taken as a whole, has instituted or, to the best knowledge of the Company or the
Bank, threatened any action or proceeding wherein the Company or the Bank or the
Subsidiary have been, or would be alleged to be, in default thereunder.
5
(n) Neither the Company, the Bank nor the Subsidiary is in violation of its
respective certificate or articles of incorporation, charter or bylaws. The
execution and delivery hereof, the fulfillment of the terms set forth herein and
the consummation of the actions contemplated hereby shall not (i) violate or
conflict with the respective certificate of incorporation, charter or bylaws of
the Company, the Bank or the Subsidiary or (ii) in any material respect 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 material default) under,
any material agreement, indenture or other instrument to which any of the
Company, the Bank or the Subsidiary is a party, or under any governmental
license or permit or any enforceable published law, administrative regulation or
authorization, approval, order, court decree, injunction or order, subject to
the satisfaction of certain conditions imposed by the Office in connection with
its approval of the Form AC and the Application H-(e)1-S, which violation,
conflict, breach or default would have a material adverse effect on the
financial condition, operations or business of the Company, the Bank and the
Subsidiary, taken as a whole.
(o) Subsequent to the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise may be
indicated or contemplated therein, neither the Company, the Bank nor the
Subsidiary 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 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, the
Bank and the Subsidiary, taken as a whole.
(p) Upon consummation of the Conversion, the authorized, issued and
outstanding equity capital of the Company shall be within the range set forth in
the Prospectus under the caption "Capitalization," and no capital stock of the
Company shall be outstanding immediately prior to the Closing Date; the issuance
and the sale of the Shares have been duly authorized by all necessary 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 good title to the Shares will be
transferred by the Company upon issuance thereof against payment therefor, 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 Delaware laws and OTS
Regulations. The issuance and sale of the capital stock of the Bank to the
Company has been duly authorized by all necessary action of the Bank 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 Proxy
Statement.
(q) 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
6
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.
(r) All contracts and other documents required to be filed as exhibits to
the Registration Statement or the Conversion Application have been so filed with
the Commission and/or the Office, as the case may be.
(s) Moore, Horton & Carlson, P.C., which has audited the consolidated
statement of condition of the Bank at April 30, 1996 and 1995 and the
consolidated statements of income, equity, and cash flows for each of the three
years in the period ended April 30, 1996, all of which are included in the
Prospectus, are independent public accountants 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).
(t) For the past five years, the Company and the Bank 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 Bank 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, the Bank and the Subsidiary,
taken as a whole.
(u) To the knowledge of the Company and the Bank, all of the loans
represented as assets of the Bank on the most recent financial statements 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 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, the Bank and the Subsidiary, taken as a
whole.
(v) The records of account holders, depositors, borrowers and other members
of the Bank delivered to Trident by the Bank or its agent for use during the
Conversion have been prepared or reviewed by, or for, the Bank and, to the best
knowledge of the Company and the Bank, are reliable and accurate.
(w) None of the Company, the Bank, the Subsidiary, or, to the best
knowledge of the Company and the Bank, the employees of the Company, the Bank or
the Subsidiary has made any payment of funds of the Company, the Bank or the
Subsidiary prohibited by law, and no funds of the Company, the Bank or the
Subsidiary have been set aside to be used for any payment prohibited by law.
7
(x) To the best knowledge of the Company or the Bank, the Company, the Bank
and the Subsidiary are in compliance with all laws, rules and regulations
relating to the discharge, storage, handling or disposal of hazardous or toxic
substances, pollutants or contaminants, and neither the Company, the Bank nor
the Subsidiary believes that the Company, the Bank or the Subsidiary is subject
to liability under the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, or any similar law, except for violations
which, if asserted, would not have a material adverse effect on the Company and
the Bank, taken as a whole. There are no actions, suits, regulatory
investigations or other proceedings pending or, to the best knowledge of the
Company or the Bank, threatened against the Company, the Bank or the Subsidiary
relating to the discharge, storage, handling or disposal of hazardous or toxic
substances, pollutants or contaminants. To the best knowledge of the Company or
the Bank, no disposal, release or discharge of hazardous or toxic substances,
pollutants or contaminants; including petroleum and gas products, as any of such
terms may be defined under federal, state or local law, has been caused by the
Company, the Bank or the Subsidiary or has occurred on, in, at or about any of
the facilities or properties of the Company, the Bank or the Subsidiary, except
which disposal, release or discharge, if discovered, would not have a material
adverse effect on the Company, the Bank and the Subsidiary, taken as a whole.
(y) At the Closing Date, the Company and the Bank will have completed the
conditions precedent to, and shall have conducted the Conversion in all material
respects in accordance with, the Plan, the OTS Regulations and all other
applicable laws, regulations, decisions and orders; and, all terms, conditions,
requirements and provisions relating to the Conversion imposed by the Office
have been or, with respect to any future Office conditions, will be complied
with by the Company and the Bank or appropriate waivers have been or will be
obtained.
Trident represents and warrants to the Company and the Bank that:
(i) Trident is registered as a broker-dealer with the Commission and a
member of the NASD, and is in good standing with the Commission and
the NASD.
(ii) Trident is validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation, with full corporate
power and authority to provide the services to be furnished to the
Company and the Bank hereunder.
(iii) The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly and validly
authorized by all necessary action on the part of Trident, and this
Agreement is a legal, valid and binding obligation of Trident,
enforceable in accordance with its terms (except as the
enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, reorganization or similar laws relating to or affecting
the enforcement of creditors' rights generally or the rights of
creditors of registered broker-dealers accounts whose rights 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
8
provisions of Sections 8 and 9 hereof may be unenforceable as against
public policy or pursuant to Section 23A).
(iv) Each of Trident and its employees, and to Trident's knowledge, its
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 where Common Stock will be sold
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 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 the Shares 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 (provided that
for this purpose, Trident shall not regard any such action as
"threatened" unless such Commission, NASD, state securities
commission or such court has manifested to the management of
Trident or to its counsel the present intention to initiate such
action or proceeding).
3. Employment of Trident: Sale and Delivery of the Shares. On the basis
-------------------------------------------------------
of the representations and warranties herein contained, but subject to the terms
and conditions herein set forth, the Company and the Bank hereby employ Trident
as their agent to utilize its best efforts in assisting the Company with the
Company's sale of the Shares in the Offerings. The employment of Trident
hereunder shall terminate (a) forty-five (45) days after the Offerings close,
unless the Company and the Bank, with the approval of the Office, are permitted
to extend such period of time, or (b) upon consummation of the Conversion,
whichever date shall first occur.
In the event the Company is unable to sell a minimum of 1,105,000 Shares
(or such lesser amount as the Office may permit) within the period herein
provided, this Agreement shall terminate, and the Company and the Bank shall
refund promptly to any persons who have
9
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 Bank until all Shares are sold and paid for have been
made by the Company and the Bank prior to the commencement of the Subscription
Offering, with provision for prompt refund to the purchasers as set forth above,
or for delivery to the Company if 1,495,000 or more 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 410 Market Street, Fulton, Missouri
65251, or at such other place as shall be agreed upon between the parties
hereto. The date upon which the Company shall release for delivery all of the
Shares sold and upon which Trident is paid the compensation due hereunder is
herein called the "Closing Date."
Trident agrees either (a) upon receipt of an executed order form of a
subscriber, to forward the offering price of the Shares ordered, on or before
twelve noon on the next business day following receipt or execution of an order
form by Trident, to the Bank for deposit in a segregated account or (b) to
solicit indications of interest, in which event (i) Trident will subsequently
contact any potential subscriber indicating interest to confirm the interest and
give instructions to execute and return an order form or to receive
authorization to execute the order form on the subscriber's behalf, (ii) Trident
will mail acknowledgements of receipt of orders to each subscriber that confirms
interest, on the business day following such confirmation, (iii) Trident will
debit accounts of such subscribers on the third business day ("debit date")
following receipt of the confirmation referred to in (i), and (iv) Trident will
forward completed order forms, together with such funds, to the Bank, on or
before twelve noon on the next business day following the debit date, for
deposit in a segregated account, Trident acknowledges that if the procedure in
(b) is adopted, subscribers' funds are not required to be in their accounts
until the debit date.
In addition to the expenses specified in Section 6 hereof, Trident shall
receive the following compensation for its services hereunder:
(a) (i) a management fee of one hundred and fifty-seven thousand five
hundred dollars ($157,500) and (ii) for stock sold by other NASD member firms
under selected dealer's agreements, a commission to be agreed upon by Trident
and the Company to reflect market requirements at the time of the stock
allocation in a Syndicated Community Offering. All such fees are to be payable
via wire transfer to Trident on the Closing Date.
(b) Trident shall be reimbursed for allocable expenses, incurred by
it, including legal fees, whether or not the Offerings are successfully
completed; provided, that out-of-pocket expenses will not exceed $10,000 and
legal fees shall not exceed $28,500, and provided further
10
that neither the Company nor the Bank shall pay or reimburse Trident for any of
the foregoing expenses accrued after Trident shall have notified the Company or
the Bank of its election to terminate this Agreement pursuant to Section 11
hereof or after such time as the Company or the Bank shall have given notice in
accordance with Section 12 hereof that Trident is in breach of this Agreement.
Full payment to defray Trident's reimbursable expenses shall be made via wire
transfer 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 hereby the receipt of a $10,000 advance payment of
reimbursable expenses from the Bank which shall be credited against the total
reimbursement due Trident hereunder.
The Company shall pay any stock issue and transfer taxes which may be
payable with respect to the sale of the Shares. The Company and the Bank shall
also pay all other expenses of the Conversion incurred by them or on their prior
approval, including but not limited to Trident's attorneys' fees, NASD filing
fees, filing and registration fees, fees of the Company's and Bank's attorneys,
fees relating to any required State securities laws research and filings,
telephone charges, air freight, rental equipment, supplies, transfer agent
charges, fees relating to auditing and accounting and costs of printing all
documents necessary in connection with the Conversion.
4. Offering. Subject to the provisions of Section 7 hereof, Trident is
--------
assisting the Company on a best efforts basis in offering a minimum of 1,105,000
shares and a maximum of up to 1,495,000 Shares (except as the Office may permit
to be decreased or increased) in the Subscription Offering and, if necessary,
the Community and Syndicated Community Offerings. The Shares are to be offered
to the public at the price set forth on the cover page of the Prospectus and the
first page of this Agreement.
5. Further Agreements. The Company and the Bank, jointly and severally,
------------------
covenant and agree that:
(a) The Company shall deliver to Trident, from time to time, such
number of copies of the Prospectus as Trident reasonably may request. The
Company authorizes Trident to use the Prospectus in any lawful manner in
connection with the offer and sale of the Shares.
(b) The Company will notify Trident or its counsel immediately upon
discovery (i) when any post-effective amendment to the Registration Statement
becomes effective or any supplement to the Prospectus has been filed, (ii) of
the issuance by the Commission of any stop order relating to the Registration
Statement or of the initiation or the threat of any proceedings for that
purpose, (iii) of the receipt of any notice with respect to the suspension of
the qualification of the Shares for offering or sale in any jurisdiction, and
(iv) of the receipt of any comments from the staff of the Commission relating to
the Registration Statement. If the Commission enters a stop order relating to
the Registration Statement at any time, the Company will make every reasonable
effort to obtain the lifting of such order at the earliest possible moment.
11
(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 Bank,
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, 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 Trident) which shall amend or supplement the Prospectus, so that, as amended
or supplemented, the Prospectus shall not contain an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances existing at the time the
Prospectus is delivered to a purchaser of the Shares, not misleading. The
Company will not file or use any amendment or supplement to the Registration
Statement or the Prospectus of which Trident has not first been furnished a copy
or to which Trident shall reasonably object after having been furnished such
copy. For the purposes of this subsection, the Company and the Bank shall
furnish such information with respect to themselves as Trident from time to time
may reasonably request.
(d) The Company and the Bank have taken, or will take, all reasonably
necessary action and furnish, to whomever Trident may reasonably direct, such
information as may be required to qualify or register the Shares for offer and
sale by the Company under the securities or blue sky laws of such jurisdictions
as Trident and either the Company or its counsel may agree upon; provided,
however, that the Company shall not be obligated to qualify as a foreign
corporation to do business under the laws of any such jurisdiction or to
register its directors or officers as brokers, dealers, salesmen or agents in
any jurisdiction. In each jurisdiction where such qualification or registration
shall be effected, the Company, unless Trident agrees that such action is not
necessary or advisable in connection with the distribution of the Shares, shall
file and make such statements or reports as are, or reasonably may be, required
by the laws of such jurisdiction .
(e) Appropriate entries will be made in the financial records of the
Bank sufficient to establish a liquidation account for the benefit of eligible
account holders as of December 31, 1994 and supplemental eligible account
holders as of June 30, 1996, in accordance with the requirements of the Office.
(f) The Company will file a registration statement for the Shares
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.
12
(g) The Company will make generally available to its security holders
as soon as practicable, but not later than 90 days after the close of the period
covered thereby, an earnings statement (in form complying with the provisions of
Rule 158 of the SEC Regulations) covering a twelve-month period beginning not
later than the first day of the Company's fiscal quarter next following the
effective date (as defined in said Rule 158) of the Registration Statement.
(h) For a period of three (3) years from the date of this Agreement
(unless the Shares 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
consistent with the manner set forth in the Prospectus.
(j) The Company shall not deliver the Shares until each and every
condition set forth in Section 7 hereof has been satisfied, unless such
condition is waived in writing by Trident.
(k) The Company shall advise Trident, if necessary, as to the
allocation of deposits, in the case of eligible account holders, and 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.
(l) The Company and the Bank will take such actions and furnish such
information as are reasonably requested by Trident in order for Trident to
ensure compliance with the NASD's "Interpretation Relating to Free-Riding and
Withholding."
6. Payment of Expenses. Whether or not the Conversion is consummated,
--------------------
the Company and the Bank shall pay or reimburse Trident for (a) all filing fees
paid or incurred by Trident in connection with all filings with the NASD with
respect to the Offerings and, (b) in addition, if the Company is unable to sell
a minimum of 1,105,000 Shares, or such lesser amount as the Office may permit,
or the Conversion is otherwise terminated, the Company and the Bank shall
reimburse Trident for allocable expenses incurred by Trident relating to the
offering of the Shares as provided in Section 3 hereof; provided, however, that
neither the Company nor the Bank shall pay or reimburse Trident for any of the
foregoing expenses accrued after Trident shall have notified the Company or the
Bank of its election to terminate this Agreement pursuant to Section 11 hereof
or after such time as the Company or the Bank shall have given notice in
accordance with Section 12 hereof that Trident is in breach of this Agreement.
13
7. Conditions of Trident's Obligations. Except as may be waived by
------------------------------------
Trident, the obligations of Trident as provided herein shall be subject to the
accuracy of the representations and warranties contained in Section 2 hereof as
of the date hereof and as of the Closing Date, to the performance by the Company
and the Bank of their obligations hereunder and to the following conditions:
(a) At the Closing Date, Trident shall receive the favorable opinions
of Breyer & Aguggia, Washington, D.C., special counsel for the Company and the
Bank, 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 the State of Delaware and is qualified to do business
as a foreign corporation and is in good standing in the
State of Missouri, which to the knowledge of such counsel
is the only state in which the conduct of its business
requires such qualification; the Bank is validly existing
as a mutual savings bank under the laws of the United
States; each of the Company and the Bank has full power
and authority to own its properties and conduct its
business as described in the Prospectus;
(ii) the Bank is a member of the Federal Home Loan Bank of Des
Moines, and the deposit accounts of the Bank are insured
by the SAIF, up to the applicable limits;
(iii) to the best knowledge of such counsel, the Bank does not
have any direct subsidiaries other than the Subsidiary.
(iv) to the best knowledge of such counsel, 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;
(v) the Plan complies with, and, to the knowledge of such
counsel, the Conversion of the Bank from a federally
chartered mutual savings bank to a federally chartered
stock savings bank and the creation of the Company as a
holding company for the Bank have been effected in all
material respects in accordance with, the HOLA and the
OTS Regulations or appropriate waivers have been
obtained; 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,
14
except with respect to satisfaction of the post-
Conversion conditions imposed by the Office in its
approvals of the Conversion and the Application H-(e)l-S
and other post conversion requirements have been complied
with by the Company and the Bank and, to the knowledge of
such counsel, no person has sought to obtain regulatory
or judicial review of the final actions of the Office in
approving the Plan;
(vi) The description of the Shares in the Registration
Statement and Prospectus is accurate in all material
respects;
(vii) the issuance and sale of the Shares as set forth in the
Registration Statement and Prospectus 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, except as disclosed in the
Prospectus, free of statutory preemptive rights, and good
title thereto shall be transferred by the Company free
and clear of all claims, encumbrances, security interests
and liens whatsoever created or suffered to be created by
the Company;
(viii) the certificates for the Shares are in proper form and
comply in all material respects with applicable Delaware
corporate law;
(ix) the issuance and sale of the capital stock of the
converted Bank to the Company have been duly authorized
by all necessary corporate action of the Bank 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;
(x) 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, the
issuance of the Shares and the consummation of the
Conversion, except with respect to the issuance to the
Bank of the Stock Charter by the Office and as may be
required under the securities, or blue sky, laws of
various jurisdictions;
15
(xi) 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 Bank; and this
Agreement is a legal, valid and binding obligation of
each of the Company and the Bank, enforceable in
accordance with its terms (except as the enforceability
thereof may be limited by bankruptcy, insolvency,
moratorium, reorganization, 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 of the Federal
Reserve Act, 12 U.S.C. Section 371c ("Section 23A"), as
to which no opinion need be rendered);
(xii) except as disclosed in the Prospectus, there are no
material legal or governmental proceedings pending or, to
the knowledge of such counsel, threatened against or
involving the assets of the Company or the Bank (provided
that for this purpose such counsel need not regard any
litigation or governmental procedure to be "threatened"
unless the potential litigant or government authority has
manifested to the management of the Company or the Bank,
or to such counsel a present intention to initiate such
litigation or proceeding);
(xiii) the statements in the Prospectus under the captions
"Regulation," "Taxation," "Dividends," "Certain
Restrictions on Acquisition of the Holding Company" and
"Description of Capital Stock of the Holding Company,"
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;
(xiv) the Form AC has been approved by the Office, and the
Prospectus has been authorized for use by the Office; the
Registration Statement and any post-effective amendment
thereto has been declared effective by the Commission;
except as to any necessary qualifications or registration
under the
16
securities laws of the jurisdictions in which the Shares
were offered, no further approval of any governmental
authority is required for the issuance and sale of the
Shares (subject to the satisfaction of various conditions
subsequent imposed by the Office in connection with its
approval of the Conversion Application), 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 are contemplated or threatened (provided
that for this purpose such counsel need not regard any
litigation or governmental procedure to be "threatened"
unless the potential litigant or government authority has
manifested to the management of the Company or the Bank,
or to such counsel, a present intention to initiate such
litigation or proceeding);
(xv) the execution and delivery of this Agreement and the
consummation of the Conversion by the Company and the
Bank do not (i) conflict with or violate the certificate
of incorporation or charter or bylaws of the Company or
the Bank (in either mutual or stock form), or, (ii) to
the knowledge of such counsel, constitute a breach of or
default (or an event which, with notice or lapse of time
or both, would constitute a default) under, give rise to
any right of termination, cancellation or acceleration
contained in, or result in the creation or imposition of
any lien, charge or other encumbrance upon any of the
properties or assets of the Company or the Bank pursuant
to any of the terms, provisions or conditions of, any
agreement, contract, indenture, bond, debenture, note,
instrument or obligation filed as an exhibit to the
Registration Statement, or (iii) violate the HOLA or the
OTS Regulations or any court order, writ, injunction or
decree specifically naming the Company or the Bank
(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 financial condition, operations or business
of the Company, the Bank and the Subsidiary, taken as a
whole;
(xvi) to the knowledge of such counsel, neither the Company nor
the Bank is in material violation of its certificate or
articles of incorporation, charter or bylaws.
(xvii) the Conversion Application, the Registration Statement
and the Prospectus, in each case as amended, comply as to
form in all
17
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 as to financial statements,
notes to financial statements, financial tables and other
financial and statistical data, including the appraisal
included therein, as to which an 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; 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 and the Bank 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 Bank. Such opinions 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,
references in such opinions to such counsel's "knowledge" may be limited to
"actual knowledge" as defined in the Accord (or knowledge based on
certificates). Such opinions may be limited to present statutes, regulations
and judicial interpretations and to facts as they presently exist; in rendering
such opinions, such counsel need assume no obligation to revise or supplement
them should the present laws be changed by legislative or regulatory action,
judicial decision or otherwise; and such 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 Bank of
this Agreement or the issuance of the Shares.
(b) At the Closing Date, Trident shall receive the favorable opinions
of _______________________________ ,_________ Missouri, local counsel for the
Bank, dated the Closing Date, in form and substance reasonably satisfactory to
counsel for Trident and to the effect that:
(i) to such counsel's knowledge, the Bank is not required to
be qualified as a foreign corporation in any jurisdiction
in which failure to so qualify would have a material
adverse effect upon the financial condition or results of
operations or business of the Bank;
(ii) to the knowledge of such counsel, the Subsidiary is not
in material breach of its charter or bylaws.
18
(iii) the Subsidiary has been duly incorporated and is validly
existing as a corporation in good standing under the laws
of the State of Missouri and has full power and authority
to own its properties and conduct its business as
described in the Prospectus and, to the knowledge of such
counsel, the Subsidiary is not required to be qualified
as a foreign corporation in any jurisdiction in which
failure to so qualify would have a material adverse
effect upon the financial condition or results of
operations of the Subsidiary.
(c) At the Closing Date, Trident shall receive the letter of Breyer &
Aguggia, Washington, D.C., special counsel for the Company and the Bank, dated
the Closing Date, addressed to Trident, in form and substance reasonably
satisfactory to counsel for Trident and to the effect that in connection with
the preparation of the Registration Statement and Prospectus, such counsel
participated in conferences with directors, officers, employees and other
representatives of the Company and the Bank and representatives of the
independent public accountants for the Company and the Bank as well as reviewed
various documents and other information deemed relevant and, based on such
conferences and review, nothing has come to such counsel's attention that lead
such counsel to believe that the Registration Statement (except as to
information in respect of Trident contained therein and except as to the
appraisal financial statements, notes to financial statements, financial tables
and other financial and statistical data contained therein or omitted therefrom
with respect to which such counsel need not comment), at the time it became
effective and at the time any post-effective amendment thereto became effective,
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements made
therein, in light of the circumstances under which they were made, not
misleading, or that the Prospectus (except as to information in respect of
Trident contained therein and except as to the appraisal financial statements,
notes to financial statements, financial tables and other financial and
statistical data contained therein or omitted therefrom with respect to which
such counsel need not comment), at the time the Prospectus was filed with the
Commission under Rule 424(b) or at the time any amendment or supplement to the
Prospectus was filed with the Commission or transmitted to the Commission for
filing or on 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
rendering this letter, counsel may state that they have not undertaken to verify
independently the information in the Registration Statement or Prospectus and
therefore do not assume any responsibility for the accuracy or completeness
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 Bank regarding the authorization of
this Agreement and the transactions contemplated hereby.
19
(e) Prior to and at the Closing Date, in the reasonable opinion of
Trident, (i) there shall have been no material change in the financial
condition, business or results of operations of the Company and the Bank, taken
as a whole, since the latest date as of which such condition is set forth in the
Prospectus, except as referred to therein; (ii) there shall have been no
transaction entered into by the Company or the Bank after the latest date as of
which the financial condition of the Company or the Bank is set forth in the
Prospectus other than transactions referred to or contemplated therein,
transactions in the ordinary course of business, and transactions which are not
material to the Company and the Bank, taken as a whole; (iii) neither the
Company nor the Bank shall have received from the Office or Commission any
direction (oral or written) to make any change in the method of conducting their
respective businesses which is material to the business of the Company and the
Bank, taken as a whole, with which they have not complied; (iv) no action, suit
or proceeding, at law or in equity or before or by any federal or state
commission, board or other administrative agency, shall be pending or threatened
against the Company or the Bank or affecting any of their respective assets,
wherein an unfavorable decision, ruling or finding would have a material adverse
effect on the business, operations, financial condition or income of the Company
and the Bank, taken as a whole; and (v) the Shares shall have been qualified or
registered for offering and sale by the Company under the securities or blue sky
laws of such jurisdictions as Trident and the Company shall have agreed upon.
(f) At the Closing Date, Trident shall receive a certificate of the
principal executive, financial and accounting officers of each of the Company
and the Bank, dated the Closing Date, to the effect that: (i) they have examined
the Prospectus, and, at the time the Prospectus became authorized for final use,
the Prospectus did not contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading with
respect to the Company or the Bank; (ii) since the date the Prospectus became
authorized for final 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, financial condition or results of operations of the Company or the
Bank 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 Direct 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 and division approving the Plan; and (v) all of the
representations and warranties contained in Section 2 of this Agreement are true
and correct, with the same force and effect as though expressly made on the
Closing Date.
(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,
(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 Bank; (iv) a copy of the letter from the appropriate Delaware
authority evidencing the good standing of the Company; (v) a copy of the
20
Company's certificate of incorporation certified by the appropriate Delaware
governmental authority; and (vi) a copy of the letter from the Office approving
the Bank's Federal Stock Charter.
(h) As soon as available after the Closing Date, Trident shall receive
a certified copy of the Bank's Federal Stock Charter executed by the appropriate
federal governmental authority.
(i) Concurrently with the execution of this Agreement, Trident
acknowledges receipt of a letter from Moore, Horton & Carlson, P.C., independent
certified public accountants, dated the date hereof and addressed to the Company
and Trident, in 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 Moore, Horton & Carlson,
P.C., independent certified public accountants, dated the Closing Date and
addressed to the Company and Trident, 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 Bank
prepared for Trident's reliance and delivered to Trident or to counsel for
Trident at the Closing Date shall be deemed a representation and warranty by the
Company and the Bank to Trident as to the statements made therein. If any
condition to Trident's obligations hereunder to be fulfilled prior to or at the
Closing Date is not so fulfilled, Trident may terminate this Agreement or, if
Trident so elects, may waive any such conditions which have not been fulfilled,
or may extend the time of their fulfillment. If Trident terminates this
Agreement as aforesaid, the Company and the Bank shall reimburse Trident for its
expenses as provided in Section 3(b) hereof.
8. Indemnification.
---------------
(a) The Company and the Bank jointly and severally agree to indemnify
and hold harmless Trident, its officers, directors 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 Bank in this Agreement or
any breach of warranty by the Company or the Bank with respect to this Agreement
or arising out of or based upon any untrue or alleged untrue statement of a
material fact or the omission or alleged omission of a material fact required to
be stated or necessary to make not misleading any statements contained
21
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 Bank or based upon written information
furnished by or on behalf of the Company or the Bank, whether or not filed in
any jurisdiction, to effect the Conversion or qualify the Shares under the
securities laws thereof or filed with the Office or Commission, unless such
statement or omission was made in reliance upon and in conformity with written
information furnished to the Company or the Bank with respect to Trident by or
on behalf of Trident expressly for use in the Prospectus or any amendment or
supplement thereof or in any Application, as the case may be, or (B) the
participation by Trident in the Conversion, provided, however, that this
indemnification agreement will not apply to any loss, liability, claim, damage
or expense found in a final judgment by a court of competent jurisdiction to
have resulted primarily from the bad faith, willful misconduct or gross
negligence of any party who may otherwise be entitled to indemnification
pursuant to this Section 8(a). This indemnity shall be in addition to any
liability the Company and the Bank may have to Trident otherwise.
(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 Bank
delivered to Trident by the Bank or its agents for use during the Conversion,
provided, however, that this indemnification agreement will not apply to any
loss, liability, claim, damage or expense found in a final judgment by a court
of competent jurisdiction to have resulted primarily from the bad faith, willful
misconduct or gross negligence of any party who may otherwise be entitled to
indemnification pursuant to this Section 8(a).
(c) Trident agrees to indemnify and hold harmless the Company and the
Bank, their officers, directors and employees and each person, if any, who
controls the Company and the Bank within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act, to the same extent as the foregoing indemnity
from the Company and the Bank to Trident, but only with respect to (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 Bank with respect to Trident by or on behalf of Trident expressly
for use in the Prospectus or in any Application; (B) any misrepresentation by
Trident in Section 2 of this Agreement; or (C) any liability of the Company or
the Bank which is found in a final judgment by a court of competent jurisdiction
(not subject to further appeal) to have 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 to so 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
22
participate therein and, to the extent that it may wish, jointly with any 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 and except as otherwise provided herein. In
the event the indemnifying party elects to assume the defense of any such action
and retain counsel acceptable to the indemnified party, the indemnified party
may retain additional counsel, but shall bear the fees and expenses of such
counsel, unless (i) the indemnifying party shall have specifically authorized
the indemnified party to retain such counsel or (ii) the parties to such suit
include such indemnifying party and the indemnified party, and such indemnified
party shall have been advised by counsel that one or more material legal
defenses may be available to the indemnified party which may not be available to
the indemnifying party, in which case the indemnifying party shall not be
entitled to assume the defense of such suit notwithstanding the indemnifying
party's obligation to bear the fees and expenses of such counsel. An
indemnifying party against whom indemnity may be sought shall not be liable to
indemnify an indemnified party under this Section 8, if any settlement of any
such action is effected without such indemnifying party's consent. To the
extent required by law, this Section 8 is subject to and limited by the
provisions of Section 23A.
9. Contribution. In order to provide for just and equitable contribution
------------
in circumstances in which the indemnity agreement provided for in Section 8
above is for any reason held to be unavailable to Trident, the Company and/or
the Bank other than in accordance with its terms, the Company or the Bank and
Trident shall contribute to the aggregate losses, liabilities, claims, damages,
and expenses of the nature contemplated by said indemnity agreement incurred by
the Company or the Bank and Trident (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company and the Bank on the one
hand and Trident on the other from the offering of the Shares or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above, but also the relative fault of the Company or
the Bank on the one hand and Trident on the other hand in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or judgments, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Bank on
the one hand and Trident on the other shall be deemed to be in the same
proportion as the total net proceeds from the Conversion received by the Company
and the Bank bear to the total fees received by Trident under this Agreement.
The relative fault of the Bank 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 Bank or by
Trident and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the Bank and Trident agree that it would not be just and
equitable if contribution pursuant to this Section 9 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in
23
the immediately preceding paragraph. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, liabilities or
judgments referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by the indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this
Section 9, Trident shall not be required to contribute any amount in excess of
the amount by which fees owed Trident pursuant to this Agreement exceeds the
amount of any damages which Trident has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section 11
(f) of the Act) shall be entitled to contribution from any person who is not
guilty of such fraudulent misrepresentation. To the extent required by law,
this Section 9 is subject to and limited by the provisions of Section 23A.
10. Survival of Agreements Representations and Indemnities. The
------------------------------------------------------
respective indemnities of the Company and the Bank and Trident and the
representation and warranties of the Company and the Bank and of Trident, set
forth in or made pursuant to this Agreement, shall remain in full force and
effect, regardless of any termination or cancellation of this Agreement or any
investigation made by or on behalf of Trident or the Company or the Bank or any
controlling person or indemnified party referred to in Section 8 hereof, and
shall survive any termination or consummation of this Agreement and/or the
issuance of the Shares, and any legal representative of Trident, the Company,
the Bank and any such controlling persons shall be entitled to the benefit of
the respective agreements, indemnities, warranties and representations.
11. Termination. 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 American Stock Exchange or the New York Stock
Exchange shall have been 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 material effect on the
Bank or the Conversion; or if a moratorium in foreign exchange trading by major
international banks or persons has been declared; or if there shall have been a
material change in the capitalization, financial condition or business of the
Company or the Bank, or if the Bank shall have sustained a material or
substantial loss by fire, flood, accident, hurricane, earthquake, theft,
sabotage or other calamity or malicious act, whether or not said loss shall have
been insured;
(b) If Trident elects to terminate this Agreement as provided in this
Section, the Company and the Bank 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
24
9 of this Agreement and upon demand, the Company and the Bank shall pay Trident
the full amount so owing thereunder.
(d) The Bank may terminate the Conversion in accordance with the terms
of the Plan. Such termination shall be without liability to any party, except
that the Company and the Bank shall be required to fulfill their obligations
pursuant to Sections 3(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 Malizia, Spidi, Sloane & Fisch, P.C., 1301 K
Street, N.W., Suite 700 East, Washington, D.C. 20005, Attention: Charles E.
Sloane, Esquire) and if sent to the Company or the Bank, shall be mailed,
delivered or telegraphed and confirmed to Fulton Bancorp, Inc., Fulton Savings
Bank, F.S.B., 410 Market Street, Fulton, Missouri 65251, Attention: Kermit D.
Gohring, President and Chief Executive Officer (with copies to Breyer & Aguggia,
Suite 470 East, 1300 I Street, N.W., Washington, D.C. 20005, Attention: Paul M.
Aguggia, Esquire).
13. Parties. This Agreement shall inure solely to the benefit of, and
-------
shall be binding upon, Trident, the Company, the Bank and the controlling and
other persons referred to in Section 8 hereof, and their respective successors,
legal representatives and assigns, and no other person shall have or be
construed to have any legal or equitable right, remedy or claim under or in
respect of or by virtue of this Agreement or any provision herein contained.
14. Construction. Unless governed by pre-emptive federal law, this
-------------
Agreement shall be governed by and construed in accordance with the substantive
laws of Missouri.
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.
25
Please acknowledge your agreement to the foregoing by signing below and
returning to the Company one copy of this letter.
FULTON BANCORP, INC. FULTON SAVINGS BANK, FSB
By: By:
--------------------------------- ---------------------------------
Kermit D. Gohring Kermit D. Gohring
President and Chief President and Chief Executive
Executive Officer Officer
Dated: Dated:
------------------------------ ---------------------------
AGREED TO AND ACCEPTED:
TRIDENT SECURITIES, INC.
By:
----------------------------------
Dated:
-------------------------------
26
Exhibit A
Trident Securities, Inc. is a registered selling agent in the jurisdictions
listed below:
Alabama Nebraska
Arizona Nevada
Arkansas New Hampshire
California New Jersey
Colorado New Mexico
Connecticut New York
Delaware North Carolina
District of Columbia North Dakota (Trident Securities, Inc.
Florida only, no agents)
Georgia Ohio
Idaho Oklahoma
Illinois Oregon
Indiana Pennsylvania
Iowa Rhode Island
Kansas South Carolina
Kentucky Tennessee
Louisiana Texas
Maine Vermont
Maryland Virginia
Massachusetts Washington
Michigan West Virginia
Minnesota Wisconsin
Mississippi Wyoming
Missouri
Trident Securities, Inc. is not a registered selling agent in the jurisdictions
listed below:
Alaska
Hawaii
Montana
South Dakota
Utah
0177fult\agency.agr
27