Exhibit 1.2
PEOPLES BANCORP, INC.
Up to 35,707,500 Shares
COMMON STOCK
($.10 Par Value)
Subscription Price $10.00 Per Share
AGENCY AGREEMENT
February __, 1998
Friedman, Billings, Ramsey & Co., Inc.
1001 Nineteenth Street North
Arlington, Virginia 22209
Ladies and Gentlemen:
Peoples Bancorp, Inc., a Delaware corporation (the "Company"), Peoples
Bancorp, M.H.C. (the "MHC"), Peoples Bancorp, Inc., a federal corporation (the
"Mid-Tier Holding Company"), and Trenton Savings Bank, FSB, Trenton, New Jersey,
a federal stock savings bank (the "Bank"), with its deposit accounts insured by
the Savings Association Insurance Fund ("SAIF") administered by the Federal
Deposit Insurance Corporation ("FDIC"), hereby confirm their agreement with
Friedman, Billings, Ramsey & Co., Inc. (the "Agent") as follows (defined terms
used herein shall have the same definition given in the Prospectus dated
February __, 1998 unless otherwise defined herein):
Section 1. The Offering. The Bank will establish the Company as a
first-tier Delaware chartered corporation subsidiary; (ii) the Company will
charter an interim federal association ("Interim"); (iii) the MHC will merge
with and into the Mid-Tier Holding Company, shares of Mid-Tier Common Stock held
by the MHC will be canceled and certain depositors of the Bank will receive an
interest in a liquidation account of the Mid-Tier Holding Company in exchange
for such persons' interest in the MHC; (iv) the Mid-Tier Holding Company will
merge with and into the Bank (the "Mid-Tier Merger") with the Bank as the
resulting entity and stockholders of the Mid-Tier Holding Company other than the
MHC ("Minority Stockholders") will constructively receive shares of Bank Common
Stock in exchange for their Mid-Tier Common Stock and each Eligible Account
Holder and Supplemental Eligible Account Holder will receive an interest in a
Liquidation Account of the Bank in exchange for such person's interest in the
Mid-Tier Holding Company; (v) contemporaneously with the Mid-Tier Merger,
Interim will merge with and into the Bank with the Bank as the surviving entity
(the "Bank Merger") and Minority Stockholders will exchange the shares of
Company Common Stock that they constructively received in the Mid-Tier Merger
for the Company's Common Stock (the
"Exchange") pursuant to the "Exchange Ratio" as defined in the Prospectus
("Exchange Stock"); and (vi) contemporaneously with the Bank Merger, the Company
will offer for sale shares of common stock in a subscription offering.
Pursuant to the Plan and in connection with the Conversion, the Company
is offering up to 20,241,600 shares of its common stock (the "Conversion Stock")
in a subscription and community offering (the "Offerings"). Conversion Stock is
first being offered in a subscription offering with nontransferable subscription
rights being granted, in the following order of priority, to (i) depositors of
the Bank with account balances of $50.00 or more as of the close of business on
August 31, 1996 ("Eligible Account Holders"); (ii) the Bank's ESOP; (iii)
depositors of the Bank with account balances of $50.00 or more as of the close
of business on December 31, 1997 ("Supplemental Eligible Account Holders"); and
(iv) depositors of the Bank as of the close of business on January ___, 1998
(other than Eligible Account Holders and Supplemental Eligible Account Holders)
("Other Members"). Subscription rights will expire if not exercised by _____
p.m., local time, on March ___, 1998, unless extended.
Subject to the prior rights of holders of subscription rights,
Conversion Stock not subscribed for in the Subscription Offering is being
offered for sale in a concurrent community offering (the "Community Offering")
to certain members of the general public with preference given to stockholders
of the Mid-Tier Holding Company, other than the Mutual Holding Company ("Public
Stockholders") and then to natural persons residing in the New Jersey Counties
of Burlington, Mercer and Ocean (the "Communities"). The Primary Parties reserve
the absolute right to reject or accept any orders in the Community Offering in
whole or in part, either at the time of receipt of an order or as soon as
practicable following the Expiration Date.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (File No. 333-_______) (the
"Registration Statement") containing a prospectus relating to the Offerings and
the Exchange for the registration of the Exchange Stock and Conversion Stock
(collectively, the "Shares") under the Securities Act of 1933 (the "1933 Act"),
and has filed such amendments thereof, if any, and such amended prospectuses as
may have been required to the date hereof. The prospectus, as amended, on file
with the Commission at the time the Registration Statement initially became
effective is hereinafter called the "Prospectus," except that if any prospectus
is filed by the Company pursuant to Rule 424(b) or (c) of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations")
differing from the prospectus on file at the time the Registration Statement
initially becomes effective, the term "Prospectus" shall refer to the prospectus
filed pursuant to Rule 424(b) or (c) from and after the time said prospectus is
filed with the Commission.
In accordance with the regulations of the Office of Thrift Supervision
("OTS") governing the conversions of savings associations (the "Conversion
Regulations"), the MHC has filed with the OTS an Application for Conversion on
Form AC (the "Conversion Application"), including the prospectus, and has filed
such amendments thereto, if any, as may have been required by the OTS. The
Conversion Application has been approved by the OTS and the related Prospectus
2
has been authorized for use by the OTS. The Company has also filed an
Application H-(e)1-S ("Holding Company Application") with the OTS to become the
saving and loan holding company of the Bank, which has been approved.
Section 2. Retention of the Agent; Compensation; Sale and Delivery of
the Shares. Subject to the terms and conditions herein set forth, the Company,
the MHC, the Mid-Tier Holding Company, and the Bank hereby appoint the Agent as
their financial advisor and marketing agent to utilize its best efforts to
solicit subscriptions for shares of the Company's Common Stock and to advise and
assist the Company and the Bank with respect to the Company's sale of the
Conversion Stock and in the areas of market making and research coverage.
On the basis of the representations, warranties, and agreements herein
contained, but subject to the terms and conditions herein set forth, the Agent
accepts such appointment and agrees to consult with and advise the Company, the
MHC, the Mid-Tier Holding Company, and the Bank as to the matters set forth in
the letter agreement ("Letter Agreement"), dated October 15, 1997, between the
Bank and the Agent (a copy of which is attached hereto as Exhibit A). It is
acknowledged by the Company, the MHC, the Mid-Tier Holding Company, and the Bank
that the Agent shall not be required to purchase any Shares and shall not be
obligated to take any action which is inconsistent with all applicable laws,
regulations, decisions or orders.
The obligations of the Agent pursuant to this Agreement shall terminate
upon the completion or termination or abandonment of the Plan by the Company or
upon termination of the Offerings, but in no event later than 45 days after the
completion of the Subscription Offering (the "End Date"). All fees or expenses
due to the Agent but unpaid will be payable to the Agent in next day funds at
the earlier of the Closing Date (as hereinafter defined) or the End Date. In the
event the Offerings are extended beyond the End Date, the Company, the MHC, the
Mid-Tier Holding Company, the Bank and the Agent may agree to renew this
Agreement under mutually acceptable terms.
In the event the Company is unable to sell a minimum of 14,961,100
shares of Conversion Stock within the period herein provided, this Agreement
shall terminate and the Company shall refund to any persons who have subscribed
for any of the Conversation Stock, the full amount which it may have received
from them plus accrued interest as set forth in the Prospectus; and none of the
parties to this Agreement shall have any obligation to the other parties
hereunder, except as set forth in this Section 2 and in Sections 6, 8 and 9
hereof.
In the event the Offerings are terminated for any reason not
attributable to the action or inaction of the Agent, the Agent shall be paid the
fees due to the date of such termination pursuant to subparagraphs (a) and (b)
below.
If all conditions precedent to the consummation of the Conversion,
including, without limitation, the sale of a minimum of number of shares of
Conversion Stock required by the Plan to be sold, are satisfied, the Company
agrees to issue, or have issued, the Shares sold in the Offering and the
Exchange and to release for delivery certificates for such Shares on the Closing
3
Date (as hereinafter defined) against payment to the Company or surrender of
Mid-Tier Holding Company stock certificates by any means authorized by the Plan,
provided, however, that no funds shall be released to the Company until the
conditions specified in Section 7 hereof shall have been complied with to the
reasonable satisfaction of the Agent and their counsel. The release of
Conversion Stock against payment therefor shall be made on a date and at a place
acceptable to the Company, the MHC, the Mid-Tier Holding Company, the Bank and
the Agent (it being understood that such date shall not be more than ten
business days after the later of the termination of the Offering or receipt of
all necessary regulatory approvals) or such other time or place as shall be
agreed upon by the Company, the MHC, the Mid-Tier Holding Company, the Bank and
the Agent. Certificates for shares shall be delivered directly to the purchasers
in accordance with their directions. The date upon which the Company shall
release or deliver the Shares sold in the Offering or issued pursuant to the
Exchange, in accordance with the terms herein, is called the "Closing Date."
The Agent shall receive the following compensation for its services
hereunder:
(a) A Management Fee to the Agent in the amount of $50,000, of which
$25,000 has been paid and of which $25,000 will be paid upon OTS
approval of the Plan. Such fees shall be deemed to be earned when
due. Should the Conversion be terminated for any reason not
attributable to the action or inaction of the Agent, the Agent
shall have earned and be entitled to be paid fees accruing
through the stage at which point the termination occurred,
including any accrued legal fees expanded by the Agent.
(b) A Marketing Fee of $.75% of the total dollar amount of Conversion
Stock sold in the Subscription and Community Offerings not to
exceed $1,000,000, payable to the Agent on the Closing Date. No
Marketing Fee shall be payable in connection with the sale of
Conversion Stock to the ESOP or to the Bank's directors,
officers, employees, and such persons immediate family members.
(c) With respect to paragraphs (a) and (b) above, the total
Marketing/Management Fee will not exceed $1,000,000.
(d) The Bank and the Company hereby agree to reimburse the Agent,
from time to time upon the Agent's request, for its reasonable
out-of-pocket expenses, including without limitation, accounting,
communication, travel expenses, and legal fees and expenses, for
amounts not to exceed $70,000. The Bank will bear the expenses of
the Offerings customarily borne by issuers including, without
limitation, OTS, SEC, "Blue Sky," and NASD filing and
registration fees; the fees of the Bank's accountants, conversion
agent, data processor, attorneys, appraiser, transfer agent and
registrar, printing, mailing and marketing expenses associated
with the Conversion; and the fees set forth under this Section 2.
4
Full payment of the Agent's actual and accountable expenses, advisory
fees and compensation shall be made in next day funds on the earlier of the
Closing Date or a determination by the Bank to terminate or abandon the Plan.
In the event of an oversubscription or other event, which causes the
Offerings to continue beyond the original expiration date or a resolicitation of
subscribers, the parties agree to renegotiate the expense cap on legal fees
applicable to the Agent.
Section 3. Prospectus; Offering. The Shares are to be initially offered
in the Offerings at the Purchase Price or Exchange Ratio as defined and set
forth on the cover page of the Prospectus.
Section 4. Representations and Warranties. The Company, the MHC, the
Mid-Tier Holding Company, and the Bank jointly and severally represent and
warrant to the Agent on the date hereof as follows:
(a) The Registration Statement was declared effective by the
Commission on February __, 1998. At the time the Registration
Statement, including the Prospectus contained therein (including any
amendment or supplement thereto), became effective, the Registration
Statement complied in all material respects with the requirements of
the 1933 Act and the 1933 Act Regulations and the Registration
Statement, including the Prospectus contained therein (including any
amendment or supplement thereto), and any information regarding the
Company or the Bank contained in Sales Information (as such term is
defined in Section 8 hereof) authorized by the Company or the Bank for
use in connection with the Offerings, did not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading,
and at the time any Rule 424(b) or (c) Prospectus was filed with the
Commission and at the Closing Date referred to in Section 2, the
Registration Statement, including the Prospectus contained therein
(including any amendment or supplement thereto), any information
regarding the Company or the Bank contained in Sales Information (as
such term is defined in Section 8 hereof) authorized by the Company or
the Bank for use in connection with the Offerings will not contain an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided,
however, that the representations and warranties in this Section 4(a)
shall not apply to statements or omissions made in reliance upon and in
conformity with written information furnished to the Company or the
Bank by the Agent expressly regarding the Agent for use in the
Prospectus under the caption "The Conversion-Plan of Distribution and
Selling Commissions" or statements in or omissions from any Sales
Information or information filed pursuant to state securities or blue
sky laws or regulations regarding the Agent.
(b) The Conversion Application was approved by the OTS on
__________ ___, 1998 and the related Prospectus has been authorized for
use by the OTS. At the
5
time of the approval of the Conversion Application, including the
Prospectus (including any amendment or supplement thereto), by the OTS
and at all times subsequent thereto until the Closing Date, the
Conversion Application, including the Prospectus (including any
amendment or supplement thereto), will comply in all material respects
with the Conversion Regulations except to the extent waived by the OTS.
The Conversion Application, including the Prospectus (including any
amendment or supplement thereto), does not include any untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading; provided,
however, that the representations and warranties in this Section 4(b)
shall not apply to statements or omissions made in reliance upon and in
conformity with written information furnished to the Company, the MHC,
the Mid-Tier Holding Company, or the Bank by the Agent expressly
regarding the Agent for use in the Prospectus contained in the
Conversion Application under the caption "The Conversion-Plan of
Distribution and Selling Commissions" or statements in or omissions
from any sales information or information filed pursuant to state
securities or blue sky laws or regulations regarding the Agent.
(c) The Company filed with the OTS the Holding Company
Application which has been approved by the OTS, subject to such
conditions set forth in the approved letter.
(d) No order has been issued by the OTS preventing or
suspending the use of the Prospectus and no action by or before any
such government entity to revoke any approval, authorization or order
of effectiveness related to the Conversion is, to the best knowledge of
the Company, the MHC, the Mid-Tier Holding Company, or the Bank,
pending or threatened.
(e) At the Closing Date referred to in Section 2, the Plan
will have been adopted by the Boards of Directors of the Company, the
MHC, the Mid-Tier Holding Company, and the Bank and the offer and sale
of the Shares will have been conducted in all material respects in
accordance with the Plan, the Conversion Regulations, and all other
applicable laws, regulations, decisions and orders, including all
terms, conditions, requirements and provisions precedent to the
Conversion imposed upon the Company, the MHC, the Mid-Tier Holding
Company, or the Bank by the OTS, the Commission or any other regulatory
authority and in the manner described in the Prospectus. To the best
knowledge of the Company, no person has sought to obtain review of the
final action of the OTS in approving or taking no objection to the Plan
or in approving or taking no objection to the Conversion or the Holding
Company Application pursuant to the Conversion Regulations or any other
statute or regulation.
(f) The Bank has been organized and is a validly existing
federally chartered savings and loan association in stock form of
organization and upon the Conversion will continue as such, is duly
authorized to conduct its business and own its property as described in
the Registration Statement and the Prospectus and all of the
outstanding stock of the Bank has been duly authorized and is fully
paid and non-assessable, and such stock is owned directly by the
Mid-Tier Holding Company free and clear of any liens,
6
encumbrances, claims or other restrictions. The Bank has obtained all
material licenses, permits and other governmental authorizations
currently required for the conduct of its business; all such licenses,
permits and governmental authorizations are in full force and effect,
and the Bank is in all material respects complying with all laws,
rules, regulations and orders applicable to the operation of its
business. The Bank is existing under the laws of the United States and
is duly qualified as a foreign corporation to transact business and is
in good standing in each jurisdiction in which its ownership of
property or leasing or property or the conduct of its business requires
such qualification, unless the failure to be so qualified in one or
more of such jurisdictions would not have a material adverse effect on
the condition, financial or otherwise, or the business, operations or
income of the Bank. (The term "Bank" used in this Agreement shall
include the Bank and its subsidiaries, Manchester Trust Bank ("MTB")
and TSBusiness Finance Corporation ("TSB") (collectively, the
"Subsidiaries"), except where the context otherwise requires). The Bank
does not own equity securities or any equity interest in any other
business enterprise except as described in the Prospectus or as would
not be material to the operations of the Bank. Upon completion of the
sale by the Company of the Shares contemplated by the Prospectus, (i)
the MHC and the Mid-Tier Holding Company will be succeeded by the
Company, a Delaware corporation, as the holding company of the Bank,
(ii) all of the authorized and outstanding capital stock of the Bank
will be owned by the Company, and (iii) the Company will have no direct
subsidiaries other than the Bank. The Conversion will have been
effected in all material respects in accordance with all applicable
statutes, regulations, decisions and orders; and, except with respect
to the filing of certain post-sale, post-Conversion reports, and
documents in compliance with the 1933 Act Regulations or the OTS's
letters of approval or no objection taken, all terms, conditions,
requirements and provisions with respect to the Conversion (except
those that are conditions subsequent) imposed by the Commission or the
OTS, if any, will have been complied with by the Company, the MHC, the
Mid-Tier Holding Company, and the Bank in all material respects or
appropriate waivers will have been obtained and all material notice and
waiting periods will have been satisfied, waived or elapsed.
(g) The Subsidiaries are duly organized and are in good
standing under the laws of the State of _____________ with full
corporate power and authority to own their properties and to conduct
their businesses, as are described in the Prospectus, and all of the
outstanding stock of the Subsidiaries has been duly authorized and is
fully paid and non-assessable, and such stock is owned directly and
beneficially by the Bank, free and clear of any liens, encumbrances,
claims or other restrictions. The Subsidiaries are duly qualified to
transact business and are in good standing in each jurisdiction in
which they conduct business, except where the failure to be qualified
would not, either individually or in the aggregate, have a material
adverse effect on the operations of the Bank. The activities of the
Subsidiaries are permitted to subsidiaries of a federally chartered
savings association by the rules, regulations, policies, and practices
of the OTS, and the activities of the Bank and the Subsidiaries are
permitted under federal and _____________ law and any other
jurisdiction in which the Subsidiaries conduct business. The Bank's
7
investments in the Subsidiaries has been approved by the OTS to the
extent required by applicable laws and regulations.
(h) The Mid-Tier Holding Company has been duly incorporated
and is validly existing as a corporation in good standing under the
laws of the United States with corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Registration Statement and the Prospectus, and the
Mid-Tier Holding Company is qualified to do business as a foreign
corporation in each jurisdiction in which the conduct of its business
requires such qualification, except where the failure to so qualify
would not have a material adverse effect on the condition, financial or
otherwise, or the business, operations or income of the Mid-Tier
Holding Company. The Mid-Tier Holding Company has obtained all material
licenses, permits and other governmental authorizations currently
required for the conduct of its business; all such licenses, permits
and governmental authorizations are in full force and effect, and the
Mid-Tier Holding Company is in all material respects complying with all
laws, rules, regulations and orders applicable to the operation of its
business.
(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 with corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement and the Prospectus, and the Company is qualified
to do business as a foreign corporation in each jurisdiction in which
the conduct of its business requires such qualification, except where
the failure to so qualify would not have a material adverse effect on
the condition, financial or otherwise, or the business, operations or
income of the Company. The Company has obtained all material licenses,
permits and other governmental authorizations currently required for
the conduct of its business; all such licenses, permits and
governmental authorizations are in full force and effect, and the
Company is in all material respects complying with all laws, rules,
regulations and orders applicable to the operation of its business.
(j) The MHC has been duly organized and is a validly existing
federally chartered mutual holding company, with corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement and the Prospectus,
and the MHC is qualified to do business as a foreign corporation in
each jurisdiction in which the conduct of its business requires such
qualification, except where the failure to so qualify would not have a
material adverse effect on the condition, financial or otherwise, or
the business, operations or income of the MHC. The MHC has obtained all
material licenses, permits and other governmental authorizations
currently required for the conduct of its business; all such licenses,
permits and governmental authorizations are in full force and effect,
and the MHC is in all material respects complying with all laws, rules,
regulations and orders applicable to the operation of its business.
(k) The Bank is a member of the Federal Home Loan Bank of New
York ("FHLB-New York"). The deposit accounts of the Bank are insured by
the FDIC up to
8
the applicable limits; and no proceedings for the termination or
revocation of such insurance are pending or, to the best knowledge of
the Company, the MHC, the Mid-Tier Holding Company, or the Bank,
threatened. Upon consummation of the Conversion, the liquidation
account for the benefit of Eligible Account Holders and Supplemental
Eligible Account Holders will be duly established in accordance with
the requirements of the Conversion Regulations.
(l) The Company, the MHC, the Mid-Tier Holding Company, and
the Bank have good and marketable title to all real property and other
assets material to the business of the Company, the MHC, the Mid-Tier
Holding Company, and the Bank and to those properties and assets
described in the Registration Statement and Prospectus as owned by
them, free and clear of all liens, charges, encumbrances or
restrictions, except such as are described in the Registration
Statement and Prospectus or are not material to the business of the
Company, the MHC, the Mid-Tier Holding Company, and the Bank taken as a
whole; and all of the leases and subleases material to the business of
the Company, the MHC, the Mid-Tier Holding Company, and the Bank under
which the Company, the MHC, the Mid-Tier Holding Company, or the Bank
hold properties, including those described in the Registration
Statement and Prospectus, are in full force and effect.
(m) The Company, the MHC, the Mid-Tier Holding Company, and
the Bank have received an opinion of their special counsel, Luse,
Lehman, Gorman, Pomerenk & Schick, P.C., with respect to the federal
income tax consequences of the conversion of the MHC from mutual to
stock form, the acquisition of the capital stock of the Bank by the
Company and the sale of the Shares as described in the Registration
Statement and the Prospectus, and an opinion from
_______________________________________ ("LOCAL") with respect to the
New Jersey state income tax consequences of the proposed transaction;
all material aspects of the opinions of Luse, Lehman, Gorman, Pomerenk
& Schick, P.C. and LOCAL are accurately summarized in the Prospectus;
and the facts and representations upon which such opinions are based
are truthful, accurate and complete.
(n) The Company, the MHC, the Mid-Tier Holding Company, and
the Bank have all such power, authority, authorizations, approvals and
orders as may be required to enter into this Agreement, to carry out
the provisions and conditions hereof and to issue and sell (i) the
capital stock of the Bank to the Company and (ii) the Shares to be sold
by the Company as provided herein and as described in the Prospectus.
(o) The Company, the MHC, the Mid-Tier Holding Company, and
the Bank are not in violation of any directive received from the OTS,
the FDIC, or any other agency to make any material change in the method
of conducting their businesses so as to comply in all material respects
with all applicable statutes and regulations (including, without
limitation, regulations, decisions, directives and orders of the OTS
and the FDIC) and, except as set forth in the Registration Statement
and the Prospectus, there is no suit or proceeding or charge or action
before or by any court, regulatory authority
9
or governmental agency or body, pending or, to the knowledge of the
Company, the MHC, the Mid-Tier Holding Company, and the Bank,
threatened, which might materially and adversely affect the Conversion,
the performance of this Agreement or the consummation of the
transactions contemplated in the Plan and as described in the
Registration Statement and the Prospectus or which might result in any
material adverse change in the condition (financial or otherwise),
earnings, capital or properties of the Company, the MHC, the Mid-Tier
Holding Company, or the Bank, or which would materially affect their
properties and assets.
(p) The consolidated financial statements which are included
in the Prospectus fairly present the financial condition, results of
operations, retained earnings and cash flows of the Mid-Tier Holding
Company or the Bank, as the case may be, at the respective dates
thereof and for the respective periods covered thereby and comply as to
form in all material respects with the applicable accounting
requirements of Title 12 of the Code of Federal Regulations and
generally accepted accounting principles (including those requiring the
recording of certain assets at their current market value). Such
financial statements have been prepared in accordance with generally
accepted accounting principles consistently applied through the periods
involved, present fairly in all material respects the information
required to be stated therein and are consistent with the most recent
financial statements and other reports filed by the Mid-Tier Holding
Company with the Commission, except that accounting principles employed
in such regulatory filings conform to the requirements of such
authorities and not necessarily to generally accepted accounting
principles. The other financial, statistical and pro forma information
and related notes included in the Prospectus present fairly the
information shown therein on a basis consistent with the audited and
unaudited financial statements of the Mid-Tier Holding Company or the
Bank, as the case may be, included in the Prospectus, and as to the pro
forma adjustments, the adjustments made therein have been properly
applied on the basis described therein.
(q) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus; (i) there has
not been any material adverse change, financial or otherwise, in the
condition of the Company, the MHC, the Bank or in the earnings, capital
or properties of the Company, the MHC, the Mid-Tier Holding Company, or
the Bank, whether or not arising in the ordinary course of business;
(ii) there has not been any material increase in the long-term debt of
the Bank or in loans past due 90 days or more or real estate acquired
by foreclosure, by deed-in-lieu of foreclosure or deemed in-substance
foreclosure or any material decrease in surplus and reserves or total
assets of the Mid-Tier Holding Company or the Bank, nor has the
Company, the Mid-Tier Holding Company, or the Bank issued any
securities or incurred any liability or obligation for borrowing other
than in the ordinary course of business; (iii) there have not been any
material transactions entered into by the Company, the MHC, the
Mid-Tier Holding Company, or the Bank, except with respect to those
transactions entered into in the ordinary course of business; (iv) the
capitalization, liabilities, assets, properties and business of the
Company, the MHC, the Mid-Tier Holding Company, and the Bank conform in
all material respects to the descriptions
10
thereof contained in the Prospectus; and (v) the Company, the MHC, the
Mid-Tier Holding Company, and the Bank do not have any material
contingent liabilities, except as set forth in the Prospectus.
(r) As of the date hereof and as of the Closing Date, the
Company, the MHC, the Mid-Tier Holding Company, and the Bank are not in
violation of its articles of incorporation or bylaws or charter or
bylaws, as applicable, or in default in the performance or observance
of any material obligation, agreement, covenant, or condition contained
in any material contract, lease, loan agreement, indenture or other
instrument to which it is a party or by which it or any of its property
may be bound; the consummation of the Conversion, the execution,
delivery and performance of this Agreement and the consummation of the
transactions herein contemplated have been duly and validly authorized
by all necessary corporate action on the part of the Company, the MHC,
the Mid-Tier Holding Company, and the Bank and this Agreement has been
validly executed and delivered by the Company, the MHC, the Mid-Tier
Holding Company, and the Bank and is the valid, legal and binding
Agreement of the Company, the MHC, the Mid-Tier Holding Company, and
the Bank enforceable in accordance with its terms, except as the
enforceability thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium, conservatorship, receivership or other
similar laws now or hereafter in effect relating to or affecting the
enforcement of creditors' rights generally or the rights of creditors
of Federal savings institutions and their holding companies, (ii)
general equitable principles, (iii) laws relating to the safety and
soundness of insured depository institutions, and (iv) applicable law
or public policy with respect to the indemnification and/or
contribution provisions contained herein, and except that no
representation or warranty need be made as to the effect or
availability of equitable remedies or injunctive relief (regardless of
whether such enforceability is considered in a proceeding in equity or
at law). The consummation of the transactions herein contemplated will
not: (i) conflict with or constitute a breach of, or default under, the
articles of incorporation and bylaws of the Company or the charters and
bylaws of the Bank, the Mid-Tier Holding Company, or the MHC (in either
mutual or capital stock form), or any material contract, lease or other
instrument to which the Company, the MHC, the Mid-Tier Holding Company,
or the Bank has a beneficial interest, or any applicable law, rule,
regulation or order; (ii) violate any authorization, approval,
judgment, decree, order, statute, rule or regulation applicable to the
Company, the MHC, the Mid-Tier Holding Company, or the Bank, except for
such violations which would not have a material adverse effect on the
financial condition and results of operations of the Company, the MHC,
the Mid-Tier Holding Company, and the Bank on a consolidated basis; or
(iii) with the exception of the liquidation account established in the
Conversion, result in the creation of any material lien, charge or
encumbrance upon any property of the Company, the MHC, the Mid-Tier
Holding Company, or the Bank.
(s) 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 MHC, the Mid-Tier Holding Company, or the
Bank, in the due performance and observance of any
11
term, covenant or condition of any indenture, mortgage, deed of trust,
note, bank loan or credit agreement or any other instrument or
agreement to which the Company, the MHC, the Mid-Tier Holding Company,
or the Bank is a party or by which any of them or any of their property
is bound or affected except such defaults which would not have a
material adverse effect on the financial condition or results of
operations of the Company, the MHC, the Mid-Tier Holding Company, and
the Bank on a consolidated basis; such agreements are in full force and
effect; and no other party to any such agreements has instituted or, to
the best knowledge of the Company, the MHC, the Mid-Tier Holding
Company, or the Bank, threatened any action or proceeding wherein the
Company, the Bank, the Mid-Tier Holding Company, or the MHC would or
might be alleged to be in default thereunder under circumstances where
such action or proceeding, if determined adversely to the Company, the
MHC, the Mid-Tier Holding Company, or the Bank, would have a material
adverse effect on the Company, the MHC, the Mid-Tier Holding Company,
and the Bank, taken as a whole.
(t) Upon consummation of the Conversion, the authorized,
issued and outstanding equity capital of the Company will be within the
range set forth in the Prospectus under the caption "Capitalization,"
and, other than shares issued to the Bank which shall be canceled on
the Closing Date, no shares of Common Stock have been or will be issued
and outstanding prior to the Closing Date referred to in Section 2; the
Shares will have been duly and validly authorized for issuance and,
when issued and delivered by the Company pursuant to the Plan against
payment of the consideration calculated as set forth in the Plan and in
the Prospectus, will be duly and validly issued, fully paid and
non-assessable; no preemptive rights exist with respect to the Shares;
and the terms and provisions of the Shares will conform in all material
respects to the description thereof contained in the Registration
Statement and the Prospectus. To the best knowledge of the Company, the
MHC, the Mid-Tier Holding Company, and the Bank, upon the issuance of
the Shares, good title to the Shares will be transferred from the
Company to the purchasers thereof against payment therefor, subject to
such claims as may be asserted against the purchasers thereof by
third-party claimants.
(u) 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 approval or non-objection, as applicable, of the Commission, the
OTS, and any necessary qualification, notification, registration or
exemption under the securities or blue sky laws of the various states
in which the Shares are to be offered, and except as may be required
under the rules and regulations of the NASD and/or the Nasdaq National
Market.
(v) KPMG Peat Marwick LLP ("KPMG"), which has certified the
financial statements of the Mid-Tier Holding Company included in the
Prospectus as of September 30, 1997 and 1996 and for each of the years
in the three year period ended September 30, 1997, has advised the
Company, the MHC, the Mid-Tier Holding Company, and the Bank in writing
that they are, with respect to the Company, the MHC, the Mid-Tier
Holding Company, and the Bank, independent public accountants within
the meaning of
12
the Code of Professional Ethics of the American Institute of Certified
Public Accountants, Title 121 of the Code of Federal Regulations and
Section 571.2(c)(3) and the 1933 Act.
(w) FinPro, Inc. which has prepared the Bank's Conversion
Valuation Appraisal Report as of December 17, 1997 (as amended or
supplemented, if so amended or supplemented) (the "Appraisal"), has
advised the Company in writing that it is independent of the Company,
the MHC, the Mid-Tier Holding Company, and the Bank within the meaning
of the Conversion Regulations.
(x) The Company, the MHC, the Mid-Tier Holding Company, and
the Bank have timely filed all required federal, state and local tax
returns; the Company, the MHC, the Mid-Tier Holding Company, and the
Bank have paid all taxes that have become due and payable in respect of
such returns, except where permitted to be extended, have made adequate
reserves for similar future tax liabilities and no deficiency has been
asserted with respect thereto by any taxing authority.
(y) The Company, the MHC, the Mid-Tier Holding Company, and
the Bank are in compliance in all material respects with the applicable
financial recordkeeping and reporting requirements of the Currency and
Foreign Transactions Reporting Act of 1970, as amended, and the
regulations and rules thereunder.
(z) To the knowledge of the Company, the MHC, the Mid-Tier
Holding Company, and the Bank, neither the Company, the MHC, the
Mid-Tier Holding Company, the Bank, nor employees of the Company, the
MHC, the Mid-Tier Holding Company, or the Bank have made any payment of
funds of the Company, the MHC, the Mid-Tier Holding Company, or the
Bank as a loan for the purchase of the Conversion Stock (other than a
loan by the Company to the ESOP) or made any other payment of funds
prohibited by law, and no funds have been set aside to be used for any
payment prohibited by law.
(aa) Prior to the Conversion: the Bank had __________ shares
of authorized common stock of which __________ shares were issued and
outstanding and __________ shares of preferred stock, none of which
were outstanding; the Mid-Tier Holding Company had __________ shares of
authorized common stock, of which ___________ shares were issued and
outstanding and __________ shares of preferred stock, none of which
were outstanding; and the MHC was not authorized to issue shares. The
Bank, the Mid-Tier Holding Company, the Company or the MHC have not:
(i) other than as described in the Prospectus issued any securities
within the last 18 months (except for notes to evidence other bank
loans and reverse repurchase agreements or other liabilities in the
ordinary course of business or as described in the Prospectus); (ii)
had any material dealings within the 12 months prior to the date hereof
with any member of the NASD, or any person related to or associated
with such member, other than discussions and meetings relating to the
proposed offering and routine purchases and sales of United States
government and agency securities; (iii) entered into a financial or
management
13
consulting agreement except as contemplated hereunder and except for
the Letter Agreement set forth in Exhibit A; and (iv) engaged any
intermediary between the Agent and the Company, the MHC, the Mid-Tier
Holding Company, and the Bank in connection with the offering of the
Shares, and no person is being compensated in any manner for such
service.
(bb) The Company, the MHC, the Mid-Tier Holding Company, and
the Bank have not relied upon the Agent or the Agent's counsel for any
legal, tax or accounting advice in connection with the Conversion.
(cc) The Company is not required to be registered under the
Investment Company Act of 1940, as amended.
Any certificates signed by an officer of the Company, the MHC, the
Mid-Tier Holding Company, or the Bank pursuant to the conditions of this
Agreement and delivered to the Agent or its counsel that refers to this
Agreement shall be deemed to be a representation and warranty by the Company,
the MHC, the Mid-Tier Holding Company, or the Bank to the Agent as to the
matters covered thereby with the same effect as if such representation and
warranty were set forth herein.
Section 5. Representations and Warranties of the Agent. The Agent
represents and warrants to the Company, the MHC, the Mid-Tier Holding Company,
and the Bank that:
(a) The Agent is a corporation and is validly existing in good
standing under the laws of the State of Delaware with full
power and authority to provide the services to be furnished to
the Bank, the Mid-Tier Holding Company, the MHC and the
Company hereunder.
(b) 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 the Agent, and this Agreement has been duly and
validly executed and delivered by the Agent and is the legal,
valid and binding agreement of the Agent, enforceable in
accordance with its terms.
(c) Each of the Agent and its employees, agents and
representatives who shall perform any of the services
hereunder shall be duly authorized and empowered, and shall
have all licenses, approvals and permits necessary to perform
such services.
(d) The execution and delivery of this Agreement by the Agent,
the consummation of the transactions contemplated hereby and
compliance with the terms and provisions hereof will not
conflict with, or result in a breach of, any of the terms,
provisions or conditions of, or constitute a default (or event
which with notice or lapse of time or both would constitute a
default) under, the articles
14
of incorporation of the Agent or any agreement, indenture or
other instrument to which the Agent is a party or by which it
or its property is bound.
(e) No approval of any regulatory or supervisory or other
public authority is required in connection with the Agent's
execution and delivery of this Agreement, except as may have
been received.
(f) There is no suit or proceeding or charge of action before
or by any court, regulatory authority or government agency or
body or, to the knowledge of the Agent, pending or threatened,
which might materially adversely affect the Agent's
performance of this Agreement.
Section 5.1 Covenants of the Company, the MHC, the Mid-Tier Holding
Company, and the Bank. The Company, the MHC, the Mid-Tier Holding Company, and
the Bank hereby jointly and severally covenant with the Agent as follows:
(a) The Company has filed the Registration Statement with the
Commission. The Company will not, at any time after the date the
Registration Statement is declared effective, file any amendment or
supplement to the Registration Statement without providing the Agent
and its counsel an opportunity to review such amendment or supplement
or file any amendment or supplement to which amendment or supplement
the Agent or its counsel shall reasonably object.
(b) The MHC has filed the Conversion Application with the OTS.
The MHC will not, at any time after the Conversion Application is
approved by the OTS, file any amendment or supplement to such
Conversion Application without providing the Agent and its counsel an
opportunity to review such amendment or supplement or file any
amendment or supplement to which amendment or supplement the Agent or
its counsel shall reasonably object.
(c) The Company has filed the Holding Company Application with
the OTS. The Company will not, at any time before the Holding Company
Application is approved by the OTS, file any amendment or supplement to
such Holding Company Application without providing the Agent and its
counsel an opportunity to review the nonconfidential portions of such
amendment or supplement or file any amendment or supplement to which
amendment or supplement the Agent or its counsel shall reasonably
object.
(d) The Company and the Bank will use their best efforts to
cause any post-effective amendment to the Registration Statement to be
declared effective by the Commission and any post-effective amendment
to the Conversion Application to be approved by the OTS and will
immediately upon receipt of any information concerning the events
listed below notify the Agent: (i) when the Registration Statement, as
amended, has become effective; (ii) when the Conversion Application, as
amended, has been approved by the OTS; (iii) when the Holding Company
Application, as amended, has been approved by the OTS; (iv) of any
comments from the Commission, the OTS
15
or any other governmental entity with respect to the Conversion or the
transactions contemplated by this Agreement; (v) of the request by the
Commission, the OTS or any other governmental entity for any amendment
or supplement to the Registration Statement, the Conversion Application
or the Holding Company Application or for additional information; (vi)
of the issuance by the Commission, the OTS or any other governmental
entity of any order or other action suspending the Offering or the use
of the Registration Statement or the Prospectus or any other filing of
the MHC, the Company or the Bank under the Conversion Regulations, or
other applicable law, or the threat of any such action; (vii) the
issuance by the Commission, the OTS or any state authority of any stop
order suspending the effectiveness of the Registration Statement or the
approval of the Conversion Application or Holding Company Application,
or of the initiation or threat of initiation or threat of any
proceedings for any such purpose; or (viii) of the occurrence of any
event mentioned in paragraph (h) below. The Company, the MHC, the
Mid-Tier Holding Company, and the Bank will make every reasonable
effort (i) to prevent the issuance by the Commission, the OTS or any
state authority of any such order and, if any such order shall at any
time be issued, (ii) to obtain the lifting thereof at the earliest
possible time.
(e) The Company, the MHC, the Mid-Tier Holding Company, and
the Bank will deliver to the Agent and to its counsel two conformed
copies of the Registration Statement, the Conversion Application and
the Holding Company Application, as originally filed and of each
amendment or supplement thereto, including all exhibits. Further, the
Company, the MHC, the Mid-Tier Holding Company, and the Bank will
deliver such additional copies of the foregoing documents to counsel to
the Agent as may be required for any NASD and blue sky filings.
(f) The Company will furnish to the Agent, from time to time
during the period when the Prospectus (or any later prospectus related
to this offering) is required to be delivered under the 1933 Act or the
Securities Exchange Act of 1934 (the "1934 Act"), such number of copies
of such Prospectus (as amended or supplemented) as the Agent may
reasonably request for the purposes contemplated by the 1933 Act, the
1933 Act Regulations, the 1934 Act or the rules and regulations
promulgated under the 1934 Act (the "1934 Act Regulations"). The
Company authorizes the Agent to use the Prospectus (as amended or
supplemented, if amended or supplemented) in any lawful manner
contemplated by the Plan in connection with the sale of the Shares by
the Agent.
(g) The Company, the MHC, the Mid-Tier Holding Company, and
the Bank will comply with any and all material terms, conditions,
requirements and provisions with respect to the Conversion and the
transactions contemplated thereby imposed by the Commission, the OTS,
the Conversion Regulations or the OTS, and by the 1933 Act, the 1933
Act Regulations, the 1934 Act and the 1934 Act Regulations to be
complied with prior to or subsequent to the Closing Date and when the
Prospectus is required to be delivered, the Company, the MHC, the
Mid-Tier Holding Company, and the Bank will comply, at their own
expense, with all material requirements imposed upon them by the
Commission, the OTS, the Conversion Regulations or the OTS, and by the
1933 Act, the
16
1933 Act Regulations, the 1934 Act and the 1934 Act Regulations,
including, without limitation, Rule 10b-5 under the 1934 Act, in each
case as from time to time in force, so far as necessary to permit the
continuance of sales or dealing in shares of Common Stock during such
period in accordance with the provisions hereof and the Prospectus.
(h) If, at any time during the period when the Prospectus
relating to the Shares is required to be delivered, any event relating
to or affecting the Company, the MHC, the Mid-Tier Holding Company, or
the Bank shall occur, as a result of which it is necessary or
appropriate, in the opinion of counsel for the Company, the MHC, the
Mid-Tier Holding Company, and the Bank or in the reasonable opinion of
the Agent's counsel, to amend or supplement the Registration Statement
or Prospectus in order to make the Registration Statement or Prospectus
not misleading in light of the circumstances existing at the time the
Prospectus is delivered to a purchaser, the Company and the Bank will
at their expense, prepare and file with the Commission and the OTS and
furnish to the Agent a reasonable number of copies of an amendment or
amendments of, or a supplement or supplements to, the Registration
Statement or Prospectus (in form and substance satisfactory to the
Agent and its counsel after a reasonable time for review) which will
amend or supplement the Registration Statement or Prospectus so that as
amended or supplemented it will not contain an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in light of the circumstances existing at
the time the Prospectus is delivered to a purchaser, not misleading.
For the purpose of this Agreement, the Company, the MHC, the Mid-Tier
Holding Company, and the Bank each will timely furnish to the Agent
such information with respect to itself as the Agent may from time to
time reasonably request.
(i) The Company, the MHC, the Mid-Tier Holding Company, and
the Bank will take all necessary actions, in cooperating with the
Agent, and furnish to whomever the Agent may direct, such information
as may be required to qualify or register the Shares for offering and
sale by the Company or to exempt such Shares from registration, or to
exempt the Company as a broker-dealer and its officers, directors and
employees as broker-dealers or agents under the applicable securities
or blue sky laws of such jurisdictions in which the Shares are required
under the Conversion Regulations to be sold or as the Agent and the
Company, the MHC, the Mid-Tier Holding Company, and the Bank may
reasonably agree upon; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to
qualify to do business in any jurisdiction in which it is not so
qualified. In each jurisdiction where any of the Shares shall have been
qualified or registered as above provided, the Company will make and
file such statements and reports in each fiscal period as are or may be
required by the laws of such jurisdiction.
(j) The liquidation account for the benefit of Eligible
Account Holders and Supplemental Eligible Account Holders will be duly
established and maintained in accordance with the requirements of the
OTS, and such Eligible Account Holders and Supplemental Eligible
Account Holders who continue to maintain their savings accounts
17
in the Bank will have an inchoate interest in their pro rata portion of
the liquidation account which shall have a priority superior to that of
the holders of shares of Common Stock in the event of a complete
liquidation of the Bank.
(k) The Company, the MHC, the Mid-Tier Holding Company, and
the Bank will not sell or issue, contract to sell or otherwise dispose
of, for a period of 90 days after the Closing Date, without the Agent's
prior written consent, any shares of Common Stock other than the Shares
or other than in connection with any plan or arrangement described in
the Prospectus.
(l) The Company shall register its Common Stock under Section
12(g) of the 1934 Act concurrent with the Offerings pursuant to the
Plan and shall request that such registration be effective upon
completion of the Conversion. The Company shall maintain the
effectiveness of such registration for not less than three (3) years or
such shorter period as may be required by the OTS.
(m) During the period during which the Company's Common Stock
is registered under the 1934 Act or for three years from the date
hereof, whichever period is greater, the Company will furnish to its
stockholders as soon as practicable after the end of each fiscal year
an annual report of the Company (including a consolidated balance sheet
and statements of consolidated income, stockholders' equity and cash
flows of the Company and its subsidiaries as at the end of and for such
year, certified by independent public accountants in accordance with
Regulation S-X under the 1933 Act and the 1934 Act).
(n) During the period of three years from the date hereof, the
Company will furnish to the Agent: (i) as soon as practicable after
such information is publicly available, a copy of each report of the
Company furnished to or filed with the Commission under the 1934 Act or
any national securities exchange or system on which any class of
securities of the Company is listed or quoted (including, but not
limited to, reports on Forms 10-K, 10-Q and 8-K and all proxy
statements and annual reports to stockholders), (ii) a copy of each
other non-confidential report of the Company mailed to its stockholders
or filed with the Commission, the OTS or any other supervisory or
regulatory authority or any national securities exchange or system on
which any class of securities of the Company is listed or quoted, each
press release and material news items and additional documents and
information with respect to the Company or the Bank as the Agent may
reasonably request; and (iii) from time to time, such other
nonconfidential information concerning the Company or the Bank as the
Agent may reasonably request.
(o) The Company and the Bank will use the net proceeds from
the sale of the Shares in the manner set forth in the Prospectus under
the caption "Use of Proceeds."
(p) Other than as permitted by the Conversion Regulations, the
HOLA, the 1933 Act, the 1933 Act Regulations, and the laws of any state
in which the Shares are registered or qualified for sale or exempt from
registration, the Company, the MHC, the
18
Mid-Tier Holding Company, and the Bank will not distribute any
prospectus, offering circular or other offering material in connection
with the offer and sale of the Shares.
(q) The Company will use its best efforts to (i) encourage and
assist two market makers to establish and maintain a market for the
Shares and (ii) list the Shares on a national or regional securities
exchange or on the Nasdaq National Market effective on or prior to the
Closing Date.
(r) The Bank will maintain appropriate arrangements for
depositing all funds received from persons mailing subscriptions for or
orders to purchase Shares in the Offerings on an interest bearing basis
at the rate described in the Prospectus until the Closing Date and
satisfaction of all conditions precedent to the release of the Bank's
obligation to refund payments received from persons subscribing for or
ordering Shares in the Offerings in accordance with the Plan and as
described in the Prospectus or until refunds of such funds have been
made to the persons entitled thereto or withdrawal authorizations
canceled in accordance with the Plan and as described in the
Prospectus. The Bank will maintain such records of all funds received
to permit the funds of each subscriber to be separately insured by the
FDIC (to the maximum extent allowable) and to enable the Bank to make
the appropriate refunds of such funds in the event that such refunds
are required to be made in accordance with the Plan and as described in
the Prospectus.
(s) The Company will promptly take all necessary action to
register as a savings and loan holding company under the HOLA within 90
days of the Closing Date.
(t) The Company and the Bank will take such actions and
furnish such information as are reasonably requested by the Agent in
order for the Agent to ensure compliance with the NASD's
"Interpretation Relating to Free Riding and Withholding."
(u) Neither the Bank nor the MHC will amend the Plan of
Conversion without notifying the Agent prior thereto.
(v) The Company shall assist the Agent, if necessary, in
connection with the allocation of the Shares in the event of an
oversubscription and shall provide the Agent with any information
necessary to assist the Company in allocating the Shares in such event
and such information shall be accurate and reliable.
(w) Prior to the Closing Date, the Company, the MHC, the
Mid-Tier Holding Company, and the Bank will inform the Agent of any
event or circumstances of which it is aware as a result of which the
Registration Statement, the Conversion Application and/or Prospectus,
as then amended or supplemented, would contain an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein not misleading.
19
(x) Prior to the Closing Date, the Company will have received
approval of the OTS to acquire the Bank.
Section 5.2 Covenants of the Agent. The Agent hereby covenants with the
Company, the MHC, the Mid-Tier Holding Company, and the Bank as follows:
(a) During the period when the Prospectus is used, the Agent
will comply, in all material respects and at its own expense, with all
requirements imposed upon it by the OTS and, to the extent applicable,
by the 1933 Act and the 1934 Act and the rules and regulations
promulgated thereunder.
(b) The Agent shall return unused prospectuses, if any, to the
Company promptly upon the completion of the Conversion.
(c) The Agent will distribute the Prospectuses or offering
materials in connection with the sales of the common stock only in
accordance with OTS regulations, the 1933 Act and the rules and
regulations promulgated thereunder.
(d) The Agent shall assist the Bank in maintaining
arrangements for the deposit of funds and the making of refunds, as
appropriate (as described in Section 5.1(r)), and shall perform the
allocation of shares in the event of an oversubscription, in
conformance with the Plan and applicable regulations and based upon
information furnished to the Agent by the Bank (as described in Section
5.1(v)).
Section 6. Payment of Expenses. Whether or not the Conversion is
completed or the sale of the Shares by the Company is consummated, the Company,
the MHC, the Mid-Tier Holding Company, and the Bank jointly and severally agree
to pay or reimburse the Agent for: (a) all filing fees in connection with all
filings with the NASD; (b) any stock issue or transfer taxes which may be
payable with respect to the sale of the Shares; (c) all reasonable expenses of
the Conversion including but not limited to the Company, the MHC, the Mid-Tier
Holding Company, and the Bank's attorneys' fees, transfer agent, registrar and
other agent charges, fees relating to auditing and accounting or other advisors
and costs of printing all documents necessary in connection with the Conversion;
and (d) all reasonable out-of-pocket expenses incurred by the Agent not to
exceed $70,000 (including legal fees and expenses). Such out-of-pocket expenses
include, but are not limited to, travel, communications and postage. However,
such out-of-pocket expenses do not include expenses incurred with respect to the
matters set forth in (a) or (b) above. In the event the Company is unable to
sell a minimum of 14,961,100 Shares or the Conversion is terminated or otherwise
abandoned, the Company, the MHC, the Mid-Tier Holding Company, and the Bank
shall reimburse the Agent in accordance with Section 2 hereof.
Section 7. Conditions to the Agent's Obligations. The Agent's
obligations hereunder, as to the Shares to be delivered at the Closing Date, are
subject, to the extent not waived by the Agent, to the condition that all
representations and warranties of the Company, the MHC, the Mid-Tier Holding
Company, and the Bank herein are, at and as of the
20
commencement of the Offerings and at and as of the Closing Date, true and
correct in all material respects, the condition that the Company, the MHC, the
Mid-Tier Holding Company, and the Bank shall have performed all of their
obligations hereunder to be performed on or before such dates, and to the
following further conditions:
(a) At the Closing Date, the Company, the MHC, the Mid-Tier
Holding Company, and the Bank shall have conducted the Conversion in
all material respects in accordance with the Plan, the Conversion
Regulations, and all other applicable laws, regulations, decisions and
orders, including all terms, conditions, requirements and provisions
precedent to the Conversion imposed upon them by the OTS.
(b) The Registration Statement shall have been declared
effective by the Commission, the Conversion Application approved by the
OTS, and the Holding Company Application approved by the OTS not later
than 5:30 p.m. on the date of this Agreement, or with the Agent's
consent at a later time and date; and at the Closing Date, no stop
order suspending the effectiveness of the Registration Statement shall
have been issued under the 1933 Act or proceedings therefore initiated
or threatened by the Commission, or any state authority and no order or
other action suspending the authorization of the Prospectus or the
consummation of the Conversion shall have been issued or proceedings
therefore initiated or, to the Company's, the MHC's, the Mid-Tier
Holding Company's, or the Bank's knowledge, threatened by the
Commission, the OTS or any state authority.
(c) At the Closing Date, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing
Date and addressed to the Agent and for its benefit, of Luse,
Lehman, Gorman, Pomerenk & Schick, P.C., special counsel for
the Company, the MHC, the Mid-Tier Holding Company, and the
Bank, in form and substance to the effect that:
(i) The Company has been duly incorporated
and is validly existing as a corporation under the laws of the
State of Delaware and has corporate power and authority to
own, lease and operate its properties and to conduct its
business as described in the Registration Statement and the
Prospectus.
(ii) The Mid-Tier Holding Company has been
duly incorporated and is validly existing as a corporation
under the laws of the State of Delaware and has corporate
power and authority to own, lease and operate its properties
and to conduct its business as described in the Registration
Statement and the Prospectus. All of the outstanding capital
stock of the Mid-Tier Holding Company is duly authorized and
validly issued, fully paid, and non-assessable and __________
shares of such stock are directly owned and of record by the
MHC, free and clear of any liens, encumbrances, claims, or
other restrictions.
21
(iii) The Bank has been organized and is a
validly existing federal savings association in capital stock
form of organization, authorized to conduct its business and
own its property as described in the Registration Statement
and Prospectus. All of the outstanding capital stock of the
Bank will be duly authorized and, upon payment therefor, will
be validly issued, fully paid and non-assessable and will be
owned by the Company, free and clear of any liens,
encumbrances, claims or other restrictions.
(iv) The MHC has been organized and is a
validly existing federal mutual holding company duly
authorized to conduct its business and own its property as
described in the Registration Statement and Prospectus.
(v) The Bank is a member of the FHLB-New
York. The deposit accounts of the Bank are insured by the FDIC
up to the maximum amount allowed under law and no proceedings
for the termination or revocation of such insurance are
pending or, to such counsel's Actual Knowledge, threatened;
the description of the liquidation account as set forth in the
Prospectus under the caption "The Conversion-Liquidation
Rights" to the extent that such information constitutes
matters of law and legal conclusions has been reviewed by such
counsel and is accurate in all material respects.
(vi) The Subsidiaries are duly incorporated
and validly existing as corporations in good standing under
the laws of the State of ______________________ with full
corporate authority to own their properties and conduct their
businesses substantially as described in the Prospectus. To
such counsel's knowledge, the Subsidiaries have obtained all
material licenses, permits, and other governmental
authorizations currently required for the conduct of their
businesses, and all such material licenses, permits, and other
governmental authorizations are in full force and effect, and
the Subsidiaries are in all material respects complying
therewith. To such counsel's knowledge, the Subsidiaries are
not in violation of their respective certificates of
incorporation or bylaws. The activities of the Subsidiaries as
described in the Prospectus are permitted by the Savings
Institution Regulations. All of the outstanding stock of the
Subsidiaries have been duly authorized and are validly issued,
fully paid, and nonassessable and such stock is owned of
record by the Bank, free and clear of any liens encumbrances,
claims, or other restrictions.
(vii) Upon consummation of the Conversion,
the authorized, issued and outstanding capital stock of the
Company will be within the range set forth in the Prospectus
under the caption "Capitalization," and except for shares
issued upon incorporation of the Company, no shares of Common
Stock have been issued prior to the Closing Date; at the time
of the Conversion, the Conversion Stock subscribed for
pursuant to the Offerings will have been duly and validly
authorized for issuance, and when issued and delivered by the
Company pursuant to the Plan against payment of the
consideration calculated as
22
set forth in the Plan and the Prospectus, will be duly and
validly issued and fully paid and non-assessable; the issuance
of the Shares is not subject to preemptive rights and the
terms and provisions of the Shares conform in all material
respects to the description thereof contained in the
Prospectus. To such counsel's Actual Knowledge, upon the
issuance of the Shares, good title to the Shares will be
transferred from the Company to the purchasers thereof against
payment therefor, subject to such claims as may be asserted
against the purchasers thereof by third-party claimants.
(viii) The execution and delivery of this
Agreement and the consummation of the transactions
contemplated hereby have been validly authorized by all
necessary action on the part of the Company, the MHC, the
Mid-Tier Holding Company, and the Bank; and this Agreement is
a valid and binding obligation of the Company, the MHC, the
Mid-Tier Holding Company, and the Bank, enforceable in
accordance with its terms, except as the enforceability
thereof may be limited by (i) bankruptcy, insolvency,
moratorium, reorganization, conservatorship, receivership or
other similar laws now or hereafter in effect relating to or
affecting the enforcement of creditors' rights generally or
the rights of creditors of savings institutions and their
holding companies, (ii) general equitable principles, (iii)
laws relating to the safety and soundness of insured
depository institutions, and (iv) applicable law or public
policy with respect to the indemnification and/or contribution
provisions contained herein, including, without limitation,
the provisions of Section 23A and 23B of the Federal Reserve
Act, and except that no opinion need to be expressed as to the
effect or availability of equitable remedies or injunctive
relief (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(ix) The Conversion Application has been
approved by the OTS and the Prospectus has been authorized for
use by the OTS. The OTS has approved the Holding Company
Application, and the purchase by the Company of all of the
issued and outstanding capital stock of the Bank has been
authorized by the OTS and no action has been taken, and to
such counsel's Actual Knowledge, none is pending or
threatened, to revoke any such authorization or approval.
(x) The Plan has been adopted by the
required vote of the directors of the Company, the MHC, the
Mid-Tier Holding Company, and the Bank and, based upon the
certificate of the inspector of election, by the members of
the MHC and the stockholders of the Mid-Tier Holding Company
and the Bank.
(xi) Subject to the satisfaction of the
conditions to the OTS's approval of the Conversion, no further
approval, registration, authorization, consent or other order
of or notice to any federal or Delaware regulatory agency is
required in connection with the execution and delivery of this
Agreement, the
23
issuance of the Shares and the consummation of the Conversion,
except as may be required under the securities or blue sky
laws of various jurisdictions (as to which no opinion need be
rendered) and except as may be required under the rules and
regulations of the NASD and/or the Nasdaq National Market (as
to which no opinion need be rendered).
(xii) The Registration Statement is
effective under the 1933 Act and no stop order suspending the
effectiveness has been issued under the 1933 Act or
proceedings therefor initiated or, to such counsel's Actual
Knowledge, threatened by the Commission.
(xiii) At the time the Conversion
Application, including the Prospectus contained therein, was
approved by the OTS, the Conversion Application, including the
Prospectus contained therein, complied as to form in all
material respects with the requirements of the Conversion
Regulations, federal law and all applicable rules and
regulations promulgated thereunder (other than the financial
statements, the notes thereto, and other tabular, financial,
statistical and appraisal data and accounting information
included therein, as to which no opinion need be rendered).
(xiv) At the time that the Registration
Statement became effective, (i) the Registration Statement (as
amended or supplemented, if so amended or supplemented) (other
than the financial statements, the notes thereto and other
tabular, financial, statistical and appraisal data included
therein, as to which no opinion need be rendered) complied as
to form in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations, and (ii) the Prospectus
(other than the financial statements, the notes thereto and
other tabular, financial, statistical and appraisal data
included therein, as to which no opinion need be rendered)
complied as to form in all material respects with the
requirements of the 1933 Act, the 1933 Act Regulations, the
Conversion Regulations and federal law.
(xv) The terms and provisions of the Shares
of the Company conform, in all material respects, to the
description thereof contained in the Registration Statement
and Prospectus, and the form of certificate used to evidence
the Shares is in proper form.
(xvi) There are no legal or governmental
proceedings pending or to such counsel's Actual Knowledge,
threatened which are required to be disclosed in the
Registration Statement and Prospectus, other than those
disclosed therein, and to such counsel's Actual Knowledge, all
pending legal and governmental proceedings to which the
Company, the MHC, the Mid-Tier Holding Company, or the Bank is
a party or of which any of their property is the subject,
which are not described in the Registration Statement and the
Prospectus, including ordinary routine litigation incidental
to the Company's, the MHC's, the
24
Mid-Tier Holding Company's, or the Bank's business, are,
considered in the aggregate, not material.
(xvii) To such counsel's Actual Knowledge,
there are no material contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments required to be
described or referred to in the Conversion Application, the
Registration Statement or the Prospectus or required to be
filed as exhibits thereto other than those described or
referred to therein or filed as exhibits thereto in the
Conversion Application, the Registration Statement or the
Prospectus. The description in the Conversion Application, the
Registration Statement and the Prospectus of such documents
and exhibits is accurate in all material respects and fairly
presents the information required to be shown.
(xviii) To such counsel's Actual Knowledge,
the Company, the MHC, the Mid-Tier Holding Company, and the
Bank have conducted the Conversion, in all material respects,
in accordance with all applicable requirements of the Plan and
applicable federal law, and the Plan complies in all material
respects with all applicable Delaware and federal laws, rules
and regulations, including, but not limited to, the Conversion
Regulations (except where a written waiver has been received);
no order has been issued by the OTS, the Commission or any
state authority to suspend the Offerings or the use of the
Prospectus, and no action for such purposes has been
instituted or, to such counsel's Actual Knowledge, threatened
by the OTS or the Commission or any state authority and, to
such counsel's Actual Knowledge, no person has sought to
obtain regulatory or judicial review of the final action of
the OTS approving the Plan, the Conversion Application, the
Holding Company Application or the Prospectus.
(xix) To such counsel's Actual Knowledge,
the Company, the MHC, the Mid-Tier Holding Company, and the
Bank have obtained all material federal and Delaware licenses,
permits and other governmental authorizations currently
required for the conduct of their businesses and all such
licenses, permits and other governmental authorizations are in
full force and effect, and the Company, the MHC, the Mid-Tier
Holding Company, and the Bank are in all material respects
complying therewith, except where the failure to have such
licenses, permits and other governmental authorizations or the
failure to be in compliance therewith would not have a
material adverse affect on the business or operations of the
Bank, the MHC and the Company, taken as a whole.
(xx) To such counsel's Actual Knowledge, the
Company, the MHC, the Mid-Tier Holding Company, and the Bank
are not in violation of their articles of incorporation,
bylaws, or charter, as applicable, or, to such counsel's
Actual Knowledge, in default or violation of any obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other
instrument to which it is a party or by which it or its
property
25
may be bound except for such defaults or violations which
would not have a material adverse impact on the financial
condition or results of operations of the Company, the MHC,
the Mid-Tier Holding Company, or the Bank on a consolidated
basis; to such counsel's Actual Knowledge, the execution and
delivery of this Agreement, the occurrence of the obligations
herein set forth and the consummation of the transactions
contemplated herein will not conflict with or constitute a
breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any
property or assets of the Company, the MHC, the Mid-Tier
Holding Company, or the Bank pursuant to any material
contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which the Company, the MHC, the Mid-Tier
Holding Company, or the Bank is a party or by which any of
them may be bound, or to which any of the property or assets
of the Company, the MHC, the Mid-Tier Holding Company, or the
Bank is subject (other than the establishment of a liquidation
account), and such action will not result in any violation of
the provisions of the articles of incorporation, bylaws or
charter, as applicable, of the Company, the MHC, the Mid-Tier
Holding Company, or the Bank, or any applicable federal or
Delaware law, act, regulation (except that no opinion need be
rendered with respect to the securities or blue sky laws of
various jurisdictions or the rules and regulations of the NASD
and/or the Nasdaq National Market) or order or court order,
writ, injunction or decree.
(xxi) The Company's articles of
incorporation and bylaws comply in all material respects with
the General Corporation Law ("GCL") of the State of Delaware.
The Bank's, the Mid-Tier Holding Company's, and the MHC's
charter and bylaws comply in all material respects with the
HOLA and the rules and regulations of the OTS.
(xxii) To such counsel's Actual Knowledge,
neither the Company, the MHC, the Mid-Tier Holding Company,
nor the Bank is in violation of any directive from the OTS or
the FDIC to make any material change in the method of
conducting its respective business.
(xxiii) The information in the Prospectus
under the captions "Regulation," "The Conversion,"
"Restrictions on Acquisition of the Company and the Bank,"
"Description of Capital Stock of the Company," and
"Description of Capital Stock of the Bank," to the extent that
such information constitutes matters of law, summaries of
legal matters, documents or proceedings, or legal conclusions,
has been reviewed by such counsel and is correct in all
material respects. The description of the Conversion process
under the caption "The Conversion" in the Prospectus has been
reviewed by such counsel and is in all material respects
correct. The discussion of statutes or regulations described
or referred to in the Prospectus are accurate summaries and
fairly present the information required to be shown. The
information under the caption "The Conversion-Tax Aspects" has
been reviewed by such counsel and constitutes a
26
correct summary of the opinions rendered by Luse, Lehman,
Gorman, Pomerenk & Schick, P.C. and [KPMG] to the Company, the
MHC, the Mid-Tier Holding Company, and the Bank with respect
to such matters.
In giving such opinion, such counsel may rely as to
all matters of fact on certificates of officers or directors
of the Company, the MHC, the Mid-Tier Holding Company, and the
Bank and certificates of public officials. Such counsel's
opinion shall be limited to matters governed by federal laws,
the State of Delaware General Corporation Law and the Sate of
[New Jersey] General Corporation Law. With respect to matters
involving the application of Delaware and New Jersey laws,
such counsel may rely, to the extent it deems proper and as
specified in its opinion, upon the opinion of local counsel
(providing that such counsel states that it believes the Agent
is justified in relying upon such specified opinion or
opinions). The opinion of Luse, Lehman, Gorman, Pomerenk &
Schick, P.C. shall be governed by the Legal Opinion Accord
("Accord") of the American Bar Association Section of Business
Law (1991). The term "Actual Knowledge" as used herein shall
have the meaning set forth in the Accord. For purposes of such
opinion, no proceedings shall be deemed to be pending, no
order or stop order shall be deemed to be issued, and no
action shall be deemed to be instituted unless, in each case,
a director or executive officer of the Company, the MHC, the
Mid-Tier Holding Company, or the Bank shall have received a
copy of such proceedings, order, stop order or action. In
addition, 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 proposed
or pending regulations or policy statements issued by any
regulatory agency, whether or not promulgated pursuant to any
such legislation, would affect the validity of the Conversion
or any aspect thereof. Such counsel may assume that any
agreement is the valid and binding obligation of any parties
to such agreement other than the Company, the MHC, the
Mid-Tier Holding Company, or the Bank.
In addition, such counsel shall provide a letter
stating that during the preparation of the Conversion
Application, the Registration Statement and the Prospectus,
they participated in conferences with certain officers of, the
independent public and internal accountants for, and other
representatives of the Company, the MHC, the Mid-Tier Holding
Company, and the Bank, at which conferences the contents of
the Conversion Application, the Registration Statement and the
Prospectus and related matters were discussed and, while such
counsel has not confirmed the accuracy or completeness of or
otherwise verified the information contained in the Conversion
Application, the Registration Statement or the Prospectus, and
does not assume any responsibility for such information, based
upon such conferences and a review of documents deemed
27
relevant for the purpose of rendering their opinion (relying
as to materiality as to factual matters on certificates of
officers and other factual representations by the Company, the
MHC, the Mid-Tier Holding Company, and the Bank), nothing has
come to their attention that would lead them to believe that
the Conversion Application, the Registration Statement, the
Prospectus, or any amendment or supplement thereto (other than
the financial statements, the notes thereto, accounting
information and other tabular, financial, statistical and
appraisal data included therein as to which no opinion need be
rendered) contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(2) The favorable opinion, dated as of the Closing
Date and addressed to the Agent and for its benefit, of the
Bank's local counsel, in form and substance to the effect
that, to the best of such counsel's knowledge, (i) the
Company, the MHC, the Mid-Tier Holding Company, and the Bank
have good and marketable title to all properties and assets
which are material to the business of the Company, the MHC,
the Mid-Tier Holding Company, and the Bank and to those
properties and assets described in the Registration Statement
and Prospectus, as owned by them, free and clear of all liens,
charges, encumbrances or restrictions, except such as are
described in the Registration Statement and Prospectus, or are
not material in relation to the business of the Company, the
MHC, the Mid-Tier Holding Company, and the Bank considered as
one enterprise; and (ii) all of the leases and subleases
material to the business of the Company, the MHC, the Mid-Tier
Holding Company, and the Bank under which the Company, the
MHC, the Mid-Tier Holding Company, and the Bank hold
properties, as described in the Registration Statement and
Prospectus, are in full force and effect; (iii) the Company
and the Bank are duly qualified as foreign corporations to
transact business and are in good standing in each
jurisdiction in which their ownership of property or leasing
of property or the conduct of their business requires such
qualification, unless the failure to be so qualified in one or
more of such jurisdictions would not have a material adverse
effect on the condition, financial or otherwise, or the
business, operations or income of the Company or the Bank; and
(iv) the MHC and the Mid-Tier Holding Company are duly
qualified as foreign corporations to transact business and are
in good standing in each jurisdiction in which their ownership
of property or leasing of property or the conduct of their
business requires such qualification, unless the failure to be
so qualified in one or more of such jurisdictions would not
have a material adverse effect on the condition, financial or
otherwise, or the business, operations or income of the MHC or
the Mid-Tier Holding Company.
(3) The favorable opinion, dated as of the Closing
Date, of Malizia, Spidi, Sloane & Fisch, P.C., the Agent's
counsel, with respect to such matters as the Agent may
reasonably require. Such opinion may rely as to matters of
fact, upon certificates of officers and directors of the
Company, the MHC, the
28
Mid-Tier Holding Company, and the Bank delivered pursuant
hereto or as such counsel shall reasonably request.
(d) At the Closing Date, the Agents shall receive a
certificate of the Chief Executive Officer and the Chief Financial
Officer of the Company and a certificate of the Chief Executive Officer
and the Chief Financial Officer of the MHC, the Mid-Tier Holding
Company, and the Bank, both dated as of such Closing Date, to the
effect that: (i) they have reviewed the Prospectus and, in their
opinion, at the time the Prospectus became authorized for final use,
the Prospectus did not contain any 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; (ii) since the date the Prospectus became
authorized for final use, no material adverse change in the condition,
financial or otherwise, or in the earnings, capital, properties or
business of the Company, the MHC, the Mid-Tier Holding Company, and the
Bank has occurred and, to their knowledge, no other event has occurred,
which should have been set forth in an amendment or supplement to the
Prospectus which has not been so set forth, and the conditions set
forth in this Section 7 have been satisfied; (iii) since the respective
dates as of which information is given in the Registration Statement
and Prospectus, there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, capital or
properties of the Company, the MHC, the Mid-Tier Holding Company, or
the Bank, independently, or of the Company, the MHC, the Mid-Tier
Holding Company, and the Bank considered as one enterprise, whether or
not arising in the ordinary course of business; (iv) the
representations and warranties in Section 4 are true and correct with
the same force and effect although expressly made at and as of the
Closing Date; (v) the Company, the MHC, the Mid-Tier Holding Company,
and the Bank have complied in all material respects with all agreements
and satisfied all conditions on their part to be performed or satisfied
at or prior to the Closing Date; (vi) no stop order suspending the
effectiveness of the Registration Statement has been initiated or, to
the best knowledge of the Company, the MHC, the Mid-Tier Holding
Company, or the Bank, threatened by the Commission or any state
authority; (vii) no order suspending the Offerings, the Conversion, the
acquisition of all of the shares of the Bank by the Company or the
effectiveness of the Prospectus has been issued and no proceedings for
that purpose are pending or, to the best knowledge of the Company, the
MHC, the Mid-Tier Holding Company, or the Bank, threatened by the OTS,
the Commission or any state authority; and (viii) to the best knowledge
or the Company or the Bank, no person has sought to obtain review of
the final action of the OTS approving the Plan.
(e) Prior to and at the Closing Date: (i) in the reasonable
opinion of the Agent, there shall have been no material adverse change
in the condition, financial or otherwise (other than as a result of a
change in law or regulation and affecting the savings association
industry as a whole), or in the earnings or business of the Company,
the MHC, the Mid-Tier Holding Company, or the Bank independently, or of
the Company, the MHC, the Mid-Tier Holding Company, and the Bank
considered as one enterprise, from that as of the latest dates as of
which such condition is set forth in the
29
Prospectus other than transactions referred to or contemplated therein;
(iii) the Company, the MHC, the Mid-Tier Holding Company, or the Bank
shall not have received from the OTS or the FDIC any direction (oral or
written) to make any material change in the method of conducting their
business with which it has not complied (which direction, if any, shall
have been disclosed to the Agents) or which materially and adversely
would affect the business, operations or financial condition or income
of the Company, the MHC, the Mid-Tier Holding Company, and the Bank
considered as one enterprise; (iv) the Company, the MHC, the Mid-Tier
Holding Company, and the Bank shall not have been in default (nor shall
any event have occurred which, with notice or lapse of time or both,
would constitute a default) under any provision of any agreement or
instrument relating to any outstanding indebtedness; (v) no action,
suit or proceedings, at law or in equity or before or by any federal or
state commission, board or other administrative agency, shall be
pending or, to the knowledge of the Company, the MHC, the Mid-Tier
Holding Company, or the Bank, threatened against the Company, the MHC,
the Mid-Tier Holding Company, or the Bank or affecting any of their
properties wherein an unfavorable decision, ruling or finding would
materially and adversely affect the business operations, financial
condition or income of the Company, the MHC, the Mid-Tier Holding
Company, and the Bank considered as one enterprise; and (vi) the Shares
have been qualified or registered for offering and sale or exempted
therefrom under the securities or blue sky laws of the jurisdictions as
the Agents shall have requested and as agreed to by the Company and the
Bank.
(f) Concurrently with the execution of this Agreement, the
Agents shall receive a letter from KPMG dated as of the date of the
Prospectus and addressed to the Agent: (i) confirming that KPMG is a
firm of independent public accountants within the meaning of Rule 101
of the Code of Professional Ethics of the American Institute of
Certified Public Accountants and applicable regulations of the 1933 Act
and the 33 Act Regulations and stating in effect that in KPMG's opinion
the consolidated financial statements of the Mid-Tier Holding Company
as of September 30, 1997 and 1996 and for each of the three years in
the period ended September 30, 1997, as are included in the Prospectus
and covered by their opinion included therein, comply as to form in all
material respects with the applicable accounting requirements and
related published rules and regulations of the Commission, the
Securities Exchange Act of 1934, as amended, and the 1933 Act; (ii) a
statement from KPMG in effect that, on the basis of certain agreed upon
procedures (but not an audit in accordance with generally accepted
auditing standards) consisting of a reading of the latest available
unaudited interim consolidated financial statements of the Mid-Tier
Holding Company prepared by the Mid-Tier Holding Company, a reading of
the minutes of the meetings of the Board of Directors and stockholders
of the Mid-Tier Holding Company and consultations with officers of the
Mid-Tier Holding Company responsible for financial and accounting
matters, nothing came to their attention which caused them to believe
that: (A) the unaudited consolidated financial statements included in
the Prospectus, are not in conformity with the 1933 Act, applicable
accounting requirements of the Commission and generally accepted
accounting principles applied on a basis substantially consistent with
that of the audited financial statements included in the Prospectus; or
(B) during the period from the date of the latest
30
unaudited consolidated financial statements included in the Prospectus
to a specified date not more than three business days prior to the date
of the Prospectus, except as has been described in the Prospectus,
there was any material increase in borrowings, other than normal
deposit fluctuations, by the Bank or the Mid-Tier Holding Company; or
(C) there was any decrease in consolidated net assets of the Mid-Tier
Holding Company at the date of such letter as compared with amounts
shown in the latest unaudited consolidated statement of condition
included in the Prospectus; and (iii) a statement from KPMG that, in
addition to the audit referred to in their opinion included in the
Prospectus and the performance of the procedures referred to in clause
(ii) of this subsection (f), they have compared with the general
accounting records of the Mid-Tier Holding Company, which are subject
to the internal controls of the Mid-Tier Holding Company, the
accounting system and other data prepared by the Mid-Tier Holding
Company, directly from such accounting records, to the extent specified
in such letter, such amounts and/or percentages set forth in the
Prospectus as the Agent may reasonably request; and they have reported
on the results of such comparisons.
(g) At the Closing Date, the Agent shall receive a letter from
KPMG dated the Closing Date, addressed to the Agent, confirming the
statements made by them in the letter delivered by them pursuant to
subsection (f) of this Section 7, the "specified date" referred to in
clause (ii) of subsection (f) thereof to be a date specified in such
letter, which shall not be more than three business days prior to the
Closing Date.
(h) At the Closing Date, the Agent shall receive a letter from
FinPro Inc., dated the date thereof and addressed to counsel for the
Agent (i) confirming that said firm is independent of the Company, the
MHC, the Mid-Tier Holding Company, and the Bank and is experienced and
expert in the area of corporate appraisals within the meaning of Title
12 of the Code of Federal Regulations, Part 303, (ii) stating in effect
that the Appraisal prepared by such firm complies in all material
respects with the applicable requirements of Title 12 of the Code of
Federal Regulations, and (iii) further stating that their opinion of
the estimated aggregate pro forma market value of the Company, the MHC,
the Mid-Tier Holding Company, and the Bank expressed in their Appraisal
dated as of December 17, 1997, and most recently updated, remains in
effect.
(i) The Company, the MHC, the Mid-Tier Holding Company, and
the Bank shall not have sustained since the date of the latest audited
financial statements included in the Prospectus any material loss or
interference with their businesses from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Registration Statement and
Prospectus.
(j) At or prior to the Closing Date, the Agent shall receive:
(i) a copy of the letter from the OTS approving the Conversion
Application and authorizing the use of the Prospectus; (ii) a copy of
the order from the Commission declaring the Registration Statement
effective; (iii) certificates from the OTS evidencing the existence of
the Bank, the Mid-Tier Holding Company and the MHC; (iv) certificates
of good standing from the
31
State of Delaware evidencing the good standing of the Company; (v) a
certificate from the FDIC evidencing the Bank's insurance of accounts,
(vi) a certificate of the FHLB-New York evidencing the Bank's
membership thereof; and (vii) a copy of the letter from the OTS
approving the Company's Holding Company Application.
(k) As soon as available after the Closing Date, the Agent
shall receive, upon request, a copy of the Company's Delaware
Certificate of Incorporation.
(l) Subsequent to the date hereof, there shall not have
occurred any of the following: (i) a suspension or limitation in
trading in securities generally on the New York Stock Exchange or in
the over-the-counter market, or quotations halted generally on the
Nasdaq National Market, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices for securities have been
required by either of such exchanges or the NASD or by order of the
Commission or any other governmental authority; (ii) a general
moratorium on the operations of commercial banks or federal savings
associations or a general moratorium on the withdrawal of deposits from
commercial banks or federal savings associations declared by federal or
state authorities; (iii) the engagement by the United States in
hostilities which have resulted in the declaration, on or after the
date hereof, of a national emergency or war; or (iv) a material decline
in the price of equity or debt securities if the effect of such a
declaration or decline, in the Agent's reasonable judgment, makes it
impracticable or inadvisable to proceed with the Offerings or the
delivery of the shares on the terms and in the manner contemplated in
the Registration Statement and Prospectus.
Section 8. Indemnification.
(a) The Company, the MHC, the Mid-Tier Holding Company, and
the Bank jointly and severally agree to indemnify and hold harmless the
Agent, its officers, directors, agents, servants and employees and each
person, if any, who controls the Agent within the meaning of Section 15
of the 1933 Act or Section 20(a) of the 1934 Act, against any and all
loss, liability, claim, damage or expense whatsoever (including but not
limited to settlement expenses), joint or several, that the Agent or
any of them may suffer or to which the Agent and any such persons may
become subject under all applicable federal or state laws or otherwise,
and to promptly reimburse the Agent and any such persons upon written
demand for any expense (including fees and disbursements of counsel)
incurred by the Agent or any of them in connection with investigating,
preparing or defending any actions, proceedings or claims (whether
commenced or threatened) to the extent such losses, claims, damages,
liabilities or actions: (i) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment or supplement thereto),
preliminary or final Prospectus (or any amendment or supplement
thereto), the Conversion Application (or any amendment or supplement
thereto), the Holding Company Application or any blue sky application
or other instrument or document executed by the Company, the MHC, the
Mid-Tier Holding Company, or the Bank based upon written information
supplied by the Company, the MHC, the Mid-Tier Holding
32
Company, or the Bank filed in any state or jurisdiction to register or
qualify any or all of the Shares or to claim an exemption therefrom, or
provided to any state or jurisdiction to exempt the Company as a
broker-dealer or its officers, directors and employees as
broker-dealers or agents, under the securities laws thereof
(collectively, the "Blue Sky Application"), or any application or other
document, advertisement, oral statement or communication ("Sales
Information") prepared, made or executed by or on behalf of the
Company, the MHC, the Mid-Tier Holding Company, or the Bank with their
consent or based upon written or oral information furnished by or on
behalf of the Company, the MHC, the Mid-Tier Holding Company, or the
Bank, whether or not filed in any jurisdiction, in order to qualify or
register the Shares or to claim an exemption therefrom under the
securities laws thereof; (ii) arise out of or based upon the omission
or alleged omission to state in any of the foregoing documents or
information, a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under
which they were made, not misleading; or (iii) arise from any theory of
liability whatsoever relating to or arising from or based upon the
Registration Statement (or any amendment or supplement thereto),
preliminary or final Prospectus (or any amendment or supplement
thereto), the Conversion Application (or any amendment or supplement
thereto), any Blue Sky Application or Sales Information or other
documentation distributed in connection with the Conversion; provided,
however, that no indemnification is required under this paragraph (a)
to the extent such losses, claims, damages, liabilities or actions
arise out of or are based upon any untrue material statement or alleged
untrue material statements in, or material omission or alleged material
omission from, the Registration Statement (or any amendment or
supplement thereto), preliminary or final Prospectus (or any amendment
or supplement thereto), the Conversion Application, any Blue Sky
Application or Sales Information made in reliance upon and in
conformity with information furnished in writing to the Company or the
Bank by the Agent regarding the Agent and provided further that such
indemnification shall be to the extent permitted by the OTS and the
FDIC. The Bank will not be liable to any indemnified party under the
foregoing indemnification and reimbursement provisions, (i) for any
settlement by an indemnified party effected without its prior written
consent; or (ii) to the extent that any loss, claim, damage or
liability is found in a final judgement by a court to have resulted
primarily from the Agent's gross negligence or willful misconduct. The
Agent shall repay to the Bank any amounts paid by the Bank for
reimbursement of the Agent's and any indemnified party's expenses in
the event that such expenses were incurred in relation to an act or
omission with respect to which it is finally determined that the Agent
has acted in gross negligence or with willful misconduct. The Bank also
agrees that no indemnified party shall have any liability (whether
direct or indirect, in contract or tort or otherwise) to the Bank or
its security holders or creditors related to or arising out of the
engagement of the Agent pursuant to, or the performance by the Agent of
the services contemplated by, this Agreement except to the extent that
any loss, claim, damage or liability is found in a final judgement by a
court to have resulted primarily from the Agent's gross negligence or
willful misconduct.
(b) The Agent agrees to indemnify and hold harmless the
Company, the MHC, the Mid-Tier Holding Company, and the Bank, their
directors and officers and each
33
person, if any, who controls the Company, the MHC, the Mid-Tier Holding
Company, or the Bank within the meaning of Section 15 of the 1933 Act
or Section 20(a) of the 1934 Act against any and all loss, liability,
claim, damage or expense whatsoever (including but not limited to
settlement expenses), joint or several, which they, or any of them, may
suffer or to which they, or any of them may become subject under all
applicable federal and state laws or otherwise, and to promptly
reimburse the Company, the MHC, the Bank, and any such persons upon
written demand for any expenses (including reasonable fees and
disbursements of counsel) incurred by them, or any of them, in
connection with investigating, preparing or defending any actions,
proceedings or claims (whether commenced or threatened) to the extent
such losses, claims, damages, liabilities or actions arise out of or
are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or any amendment
or supplement thereto), the Conversion Application (or any amendment or
supplement thereto) or the preliminary or final Prospectus (or any
amendment or supplement thereto), or are based upon the omission or
alleged omission to state in any of the foregoing documents a material
fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that the Agent's obligations under
this Section 8(b) shall exist only if and only to the extent (i) that
such untrue statement or alleged untrue statement was made in, or such
material fact or alleged material fact was omitted from, the
Registration Statement (or any amendment or supplement thereto), the
preliminary or final Prospectus (or any amendment or supplement
thereto) or the Conversion Application (or any amendment or supplement
thereto), any Blue Sky Application or Sales Information in reliance
upon and in conformity with information furnished in writing to the
Company or the Bank by the Agent regarding the Agent. In no case shall
the Agent be liable or responsible for any amount in excess of the fees
received by the Agent pursuant to Section 2 of this Agreement.
(c) Each indemnified party shall given prompt written notice
to each indemnifying party of any action, proceeding, claim (whether
commenced or threatened), or suit instituted against it in respect of
which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve it from any liability which it may
have on account of this Section 8 or otherwise. An indemnifying party
may participate at its own expense in the defense of such action. In
addition, if it so elects within a reasonable time after receipt of
such notice, an indemnifying party, jointly with any other indemnifying
parties receiving such notice, may assume defense of such action with
counsel chosen by it and approved by the indemnified parties that are
defendants in such action, unless such indemnified parties reasonably
object to such assumption on the ground that there may be legal
defenses available to them that are different from or in addition to
those available to such indemnifying party. If an indemnifying party
assumes the defense of such action, the indemnifying parties shall not
be liable for any fees and expenses of counsel for the indemnified
parties incurred thereafter in connection with such action, proceeding
or claim, other than reasonable costs of investigation. In no event
shall the indemnifying parties be liable for the fees and expenses of
more than one separate firm of attorneys (and any special counsel that
said firm may retain) for each
34
indemnified party in connection with any one action, proceeding or
claim or separate but similar or related actions, proceedings or claims
in the same jurisdiction arising out of the same general allegations or
circumstances.
(d) The agreements contained in this Section 8 and in Section
9 hereof and the representations and warranties of the Company, the
MHC, the Mid-Tier Holding Company, and the Bank set forth in this
Agreement shall remain operative and in full force and effect
regardless of: (i) any investigation made by or on behalf of the Agent
or its officers, directors or controlling persons, agents or employees
or by or on behalf of the Company, the MHC, the Mid-Tier Holding
Company, or the Bank or any officers, directors or controlling persons,
agents or employees of the Company, the MHC, the Mid-Tier Holding
Company, or the Bank; (ii) deliver of and payment hereunder for the
Shares; or (iii) any termination of this Agreement.
(e) To the extent required by law, this Section 8 is subject
to and limited by the provisions of Sections 23A and 23B of the Federal
Reserve Act, 12 U.S.C. Sections 371c and 371c-1 ("Sections 23A and
23B").
Section 9. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for in
Section 8 is due in accordance with its terms but is for any reason held by a
court to be unavailable from the Company, the Mid-Tier Holding Company, the Bank
or the Agent, the Company, the Bank and the Agent shall contribute to the
aggregate losses, claims, damages and liabilities (including any investigation,
legal and other expenses incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding of any claims asserted, but after
deducting any contribution received by the Company, the Mid-Tier Holding
Company, the Bank or the Agent from persons other than the other party thereto,
who may also be liable for contribution) in such proportion so that the Agent
are responsible for that portion represented by the percentage that the fees
paid to the Agent pursuant to Section 2 of this Agreement (not including
expenses) bears to the gross proceeds received by the Company from the sale of
the Shares in the Offerings and the Company, the Mid-Tier Holding Company, and
the Bank shall be responsible for the balance. If, however, the allocation
provided above is not permitted by applicable law or if the indemnified party
failed to give the notice required under Section 8 above, then each indemnifying
party shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative fault of
the Company, the Mid-Tier Holding Company, and the Bank on the one hand and the
Agent on the other in connection with the statements or omissions which resulted
in such losses, claims, damages or liabilities (or actions, proceedings or
claims in respect thereto), but also the relative benefits received by the
Company, the Mid-Tier Holding Company, and the Bank on the one hand and the
Agent on the other from the Offerings (before deducting expenses). The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company, the Mid-Tier Holding Company, and/or the Bank on the one hand or the
Agent on the other and the parties' relative intent, good faith, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The
35
Company, the Mid-Tier Holding Company, the Bank and the Agent 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 into account the equitable considerations referred to above in
this Section 9. The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions, proceedings or claims
in respect thereof) referred to above in this Section 9 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action, proceeding
or claim. It is expressly agreed that the Agent shall not be liable for any
loss, liability, claim, damage or expense or be required to contribute any
amount which in the aggregate exceeds the amount paid (excluding reimbursable
expenses) to the Agent under this Agreement. It is understood that the above
stated limitation on the Agent's liability is essential to the Agent and that
the Agent would not have entered into this Agreement if such limitation had not
been agreed to by the parties to this Agreement. No person found guilty of any
fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933
Act) shall be entitled to contribution from any person who was not found guilty
of such fraudulent misrepresentation. The obligations of the Company, the
Mid-Tier Holding Company, and the Bank under this Section 9 and under Section 8
shall be in addition to any liability which the Company, the Mid-Tier Holding
Company, and the Bank may otherwise have. For purposes of this Section 9, each
of the Agent's, the Company's or the Bank's officers and directors and each
person, if any, who controls the Agent or the Company or the Bank within the
meaning of the 1933 Act and the 1934 Act shall have the same rights to
contribution as the Agent, the Company, the Mid-Tier Holding Company, or the
Bank. Any party entitled to contribution, promptly after receipt of notice of
commencement of any action, suit, claim or proceeding against such party in
respect of which a claim for contribution may be made against another party
under this Section 9, will notify such party from whom contribution may be
sought, but the omission to so notify such party shall not relieve the party
from whom contribution may be sought from any other obligation it may have
hereunder or otherwise than under this Section 9. To the extent required by law,
this Section 9 is subject to and limited by the provisions of Sections 23A and
23B.
Section 10. Survival of Agreements, Representations and Indemnities.
The respective indemnities of the Company, the MHC, the Mid-Tier Holding
Company, the Bank and the Agent and the representations and warranties and other
statements of the Company and the Bank 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
the Agent, the Company, the MHC, the Mid-Tier Holding Company, the Bank or any
controlling person referred to in Section 8 hereof, and shall survive the
issuance of the Shares, and any legal representative, successor or assign of the
Agent, the MHC, the Mid-Tier Holding Company, the Company, the Bank, and any
such controlling person shall be entitled to the benefit of the respective
agreements, indemnities, warranties and representations.
Section 11. Termination. The Agent may terminate its obligations under
this Agreement by giving the notice indicated below in this Section 11 at any
time after this Agreement becomes effective as follows:
36
(a) In the event the Company fails to sell a minimum number of
shares of the Conversion Stock by _________ ___, 1998, and in
accordance with the provisions of the Plan or as required by the
Conversion Regulations, and applicable law, this Agreement shall
terminate upon refund by the Bank to each person who has subscribed for
or ordered any of the Conversion Stock the full amount which it may
have received from such person, together with interest as provided in
the Prospectus, and no party to this Agreement shall have any
obligation to the other hereunder, except for payment by the Company
and/or the Bank as set forth in Sections 2(a) and (d), 6, 8 and 9
hereof.
(b) If any of the conditions specified in Section 7 shall not
have been fulfilled when and as required by this Agreement unless
waived in writing, or by the Closing Date, this Agreement and all of
the Agent's obligations hereunder may be canceled by the Agent by
notifying the Company, the MHC, the Mid-Tier Holding Company, and the
Bank of such cancellation in writing or by telegram at any time at or
prior to the Closing Date, and any such cancellation shall be without
liability of any party to any other party except as otherwise provided
in Sections 2, 6, 8 and 9 hereof.
(c) If the Agent elects to terminate this Agreement as
provided in this Section, the Company, the MHC, the Mid-Tier Holding
Company, and the Bank shall be notified promptly by the Agent by
telephone or telegram, confirmed by letter.
The Company, the MHC, the Mid-Tier Holding Company, and the Bank may
terminate this Agreement in the event the Agent is in material breach of the
representations and warranties or covenants contained in Section 5 and such
breach has not been cured after the Company and the Bank have provided the Agent
with notice of such breach.
This Agreement may also be terminated by mutual written consent of the
parties hereto.
Section 12. Notices. All communications hereunder, except as herein
otherwise specifically provided, shall be mailed in writing and if sent to the
Agent shall be mailed, delivered or telegraphed and confirmed to Friedman,
Billings, Ramsey & Co., Inc., 1001 19th Street North, Arlington, Virginia
22209-1710, Attention: Richard A. Buckner (with a copy to to Malizia, Spidi,
Sloane & Fisch, P.C., Attention: Charles E. Sloane, Esq.) and, if sent to the
Company, the MHC, the Mid-Tier Holding Company, and the Bank, shall be mailed,
delivered or telegraphed and confirmed to the Company, the MHC, the Mid-Tier
Holding Company, and the Bank at 134 Franklin Corner Road, Trenton, New Jersey
08648, Attention: Wendell T. Breithaupt, President and Chief Executive Officer
(Luse, Lehman, Gorman, & Schick, P.C., Attention: John J. Gorman, Esq.)
Section 13. Parties. The Company, the MHC, the Mid-Tier Holding
Company, and the Bank shall be entitled to act and rely on any request, notice,
consent, waiver or agreement purportedly given on behalf of the Agent, when the
same shall have been given by the undersigned. The Agent shall be entitled to
act and rely on any request, notice, consent, waiver or agreement purportedly
given on behalf of the Company, the MHC, the Mid-Tier Holding Company, or the
Bank, when the same shall have been given by the undersigned or any other
37
officer of the Company, the MHC, the Mid-Tier Holding Company, or the Bank. This
Agreement shall inure solely to the benefit of, and shall be binding upon, the
Agent, the Company, the MHC, the Bank, 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. It is understood and
agreed that this Agreement is the exclusive agreement among the parties hereto,
and supersedes any prior agreement among the parties and may not be varied
except in writing signed by all the parties.
Section 14. Closing. The closing for the sale of the Conversion Stock
shall take place on the Closing Date at such location as mutually agreed upon by
the Agent and the Company, the MHC, the Mid-Tier Holding Company, and the Bank.
At the closing, the Company, the MHC, the Mid-Tier Holding Company, and the Bank
shall deliver to the Agent in next day funds the commissions, fees and expenses
due and owing to the Agent as set forth in Sections 2 and 6 hereof and the
opinions and certificates required hereby and other documents deemed reasonably
necessary by the Agent shall be executed and delivered to effect the sale of the
Shares as contemplated hereby and pursuant to the terms of the Prospectus.
Section 15. Partial Invalidity. In the event that any term, provision
or covenant herein or the application thereof to any circumstance or situation
shall be invalid or unenforceable, in whole or in part, the remainder hereof and
the application of said term, provision or covenant to any other circumstances
or situation shall not be affected thereby, and each term, provision or covenant
herein shall be valid and enforceable to the full extent permitted by law.
Section 16. Construction. This Agreement shall be construed in
accordance with the laws of the State of Delaware.
Section 17. Counterparts. This Agreement may be executed in separate
counterparts, each of which so executed and delivered shall be an original, but
all of which together shall constitute but one and the same instrument.
38
If the foregoing correctly sets forth the arrangement among the
Company, the MHC, the Mid-Tier Holding Company, the Bank, and the Agent, please
indicate acceptance thereof in the space provided below for that purpose,
whereupon this letter and the Agent's acceptance shall constitute a binding
agreement.
Very truly yours,
PEOPLES BANCORP, INC. TRENTON SAVINGS BANK, FSB
a Delaware corporation
By:________________________________ By:________________________________
Wendell T. Breithaupt Wendell T. Breithaupt
President and Chief Executive President and Chief Executive
Officer Officer
PEOPLES BANCORP, M.H.C. PEOPLES BANCORP, INC.
a Federal corporation
By:________________________________ By:________________________________
Wendell T. Breithaupt Wendell T. Breithaupt
President and Chief Executive President and Chief Executive
Officer Officer
Accepted as of the date first above written
FRIEDMAN, BILLINGS, RAMSEY & CO., INC.
By:_________________________
Emanuel J. Friedman
Chairman
39