Exhibit 1.2
Form of Agency Agreement with Trident Securities
FPB Financial Corp.
(Proposed Holding Company for Florida Parishes Bank)
Up to _______ Shares of Common Stock
(Par Value $.01 Per Share)
$10.00 Per Share
AGENCY AGREEMENT
May __, 1999
Trident Securities
4601 Six Forks Road, Suite 400
Raleigh, North Carolina 27609
Dear Sirs:
FPB Financial Corp. ("Company"), a Louisiana corporation, and Florida
Parishes Bank ("Bank"), a federally chartered savings bank, hereby confirm as of
the date above their respective agreements with Trident Securities ("Trident"),
a broker-dealer registered with the Securities and Exchange Commission
("Commission") and a member of the National Association of Securities Dealers,
Inc. ("NASD"), as follows:
1. Introduction. The Bank intends to convert from a federally chartered
mutual savings bank to a federally chartered stock savings bank as a
wholly-owned subsidiary of the Company (together with the Offerings (as defined
below) and the issuance of shares of common stock of the Bank to the Company,
the "Conversion") pursuant to a plan of conversion adopted by the Bank's Board
of Directors on _____________ ("Plan"). In accordance with the Plan, the Company
is offering up to _______ shares ("Shares") of its common stock, par value $.01
per share ("Common Stock"), pursuant to nontransferable subscription rights in a
subscription offering ("Subscription Offering"), in order of priority, to (i)
the Bank's Eligible Account Holders (as defined in the Plan), (ii) the Company's
Employee Stock Ownership Plan ("ESOP"), (iii) the Bank's Supplemental Eligible
Account Holders (as defined in the Plan), (iv) the Bank's Other Members (as
defined in the Plan), and (v) directors, officers and employees of the Bank. Any
Shares not sold in the Subscription Offering will be offered to the general
public in a community offering, with preference being given to natural persons
residing in Tangipahoa Parish, Louisiana ("Community Offering"). The Community
Offering may commence any time during the Subscription Offering or after the
expiration of the Subscription Offering. The Subscription Offering and the
Community Offering are collectively referred to as the "Offerings." Purchases of
Shares in the Offerings are subject to certain limitations and restrictions as
described in the Plan.
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Trident has advised the Company and the Bank that it intends to utilize
its best efforts to assist the Company and the Bank with the sale of the Shares
in the Subscription Offering and any Community Offering.
2. Representations and Warranties.
(a) The Company and the Bank jointly and severally represent and
warrant to Trident that:
(i) The Company has filed with the Commission a registration statement,
including exhibits and an amendment or amendments thereto, on Form SB-2 (No.
333-_____), including a Prospectus, for the registration of the Shares under the
Securities Act of 1933, as amended ("Securities Act"); and such registration
statement has been declared effective under the Securities Act and no stop order
has been issued with respect thereto and no proceedings therefor have been
initiated or, to the Company's best knowledge, threatened by the Commission.
Except as the context may otherwise require, such registration statement, as
amended or supplemented, on file with the Commission at the time it became
effective, including the prospectus, financial statements, schedules, exhibits
and all other documents filed as part thereof, as amended and supplemented, is
herein called the "Registration Statement," and the prospectus, as amended or
supplemented, on file with the Commission at the time the Registration Statement
became effective is herein called the "Prospectus," except that if any
prospectus filed by the Company with the Commission pursuant to Rule 424(b) of
the general rules and regulations of the Commission under the Securities Act
(together with the published policies and actions of the Commission thereunder,
the "Securities Act Regulations") differs from the form of prospectus on file at
the time the Registration Statement became effective, the term "Prospectus"
shall refer to the Rule 424(b) prospectus from and after the time it is filed
with the Commission and shall include any amendments or supplements thereto from
and after their dates of effectiveness or use, respectively.
(ii) The Bank has filed an Application for Conversion on Form AC,
including exhibits (as amended or supplemented, the "Form AC" or the "Conversion
Application") with the Office of Thrift Supervision ("OTS") under the Home
Owners' Loan Act, as amended ("HOLA"), and the rules and regulations, including
published policies and actions, of the OTS thereunder ("OTS Regulations"), which
has been approved by the OTS, and the Prospectus and the proxy statement for the
solicitation of proxies from members for the special meeting to approve the Plan
("Proxy Statement") included as part of the Conversion Application have been
approved for use by the OTS. No order has been issued by the OTS preventing or
suspending the use of the Prospectus or the Proxy Statement and no action by or
before the OTS revoking such approvals is pending or, to the Bank's best
knowledge, threatened. The Company has filed with the OTS an application on Form
H-e(1)-S ("Holding Company Application") promulgated under the savings and loan
holding company provisions of the HOLA and the regulations promulgated
thereunder, and has received approval of its acquisition of the Bank from the
OTS.
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(iii) As of the date hereof, (i) the Registration Statement and the
Prospectus comply as to form in all material respects with the Securities Act
and the Securities Act Regulations, (ii) the Registration Statement does 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 (iii)
the Prospectus does not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading. (Representations or warranties in this subsection shall
not apply to statements or omissions made in reliance upon and in conformity
with written information furnished to the Company or the Bank by or on behalf of
Trident relating to Trident expressly for use in the Registration Statement or
Prospectus.).
(iv) The Company has been duly incorporated as a Louisiana corporation
and the Bank has been duly organized as a mutual savings bank under the laws of
the United States, and each is validly existing and in good standing under the
laws of Louisiana and the United States, respectively, with full power and
authority to own their property and conduct their business as described in the
Registration Statement and Prospectus; the Bank is a member in good standing of
the Federal Home Loan Bank of Dallas; and the deposit accounts of the Bank are
insured by the Federal Deposit Insurance Corporation ("FDIC") up to the
applicable legal limits. Each of the Company and the Bank are duly qualified to
do business as a foreign corporation in each jurisdiction in which its ownership
of 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 financial condition, operations, business,
properties or assets of the Company and the Bank, taken as a whole.
(v) The Bank has good, marketable and insurable title to all assets
material to its business and to those assets described in the Prospectus as
owned by it, free and clear of all liens, charges, encumbrances or restrictions,
except for liens for taxes not yet due, except as described in the Prospectus
and except as to those which do not in the aggregate have a material adverse
effect upon the financial condition, operations, business, properties or assets
of the Bank; and any leases and subleases material to the financial condition,
operations, business, assets or properties of the Bank, under which it holds
properties, including any described in the Prospectus, are in full force and
effect as described therein.
(vi) The Bank has no direct or indirect subsidiaries.
(vii) The execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby have been duly and validly authorized by
all necessary actions on the part of each of the Company and the Bank, and this
Agreement is a valid and binding obligation of each of the Company and the Bank,
enforceable in accordance with its terms, except as the enforceability thereof
may be limited by (i) bankruptcy, insolvency, moratorium, reorganization,
conservatorship, receivership or similar laws relating to or affecting the
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enforcement of creditors' rights generally or the rights of creditors of insured
financial institutions and their holding companies, the accounts of whose
subsidiaries are insured by the FDIC, (ii) general equity principles, regardless
of whether such enforceability is considered in a proceeding in equity or at
law, or (iii) laws relating to the safety and soundness of insured depository
institutions and their affiliates, and except to the extent that the provisions
of Sections 8 and 9 hereof may be unenforceable as against public policy or by
applicable law, including without limitation Sections 23A and 23B of the Federal
Reserve Act, as amended ("Sections 23A and 23B").
(viii) Except as referred to in the Prospectus, there is no litigation
or governmental proceeding pending or, to the best knowledge of the Company or
the Bank, threatened against or involving the Company or the Bank, or any of
their respective assets which individually or in the aggregate would have a
material adverse effect on the financial condition, results of operations,
business, assets or properties of the Company or the Bank, taken as a whole.
(For purposes of this representation, any litigation or governmental proceeding
is not considered "threatened" unless the potential litigant or governmental
authority had manifested to the management of the Company or the Bank, or to
their counsel, a present intention to initiate such litigation or proceeding.).
(ix) The Company and the Bank have received the opinions of (a) Elias,
Matz, Tiernan & Herrick L.L.P. with respect to the federal income tax
consequences of the Conversion, to the effect that the Conversion will
constitute a tax-free reorganization under the Internal Revenue Code of 1986, as
amended, and (b) Murphy, Whalen & Broussard with respect to the Louisiana income
tax consequences of the Conversion, to the effect that the Conversion will not
be a taxable transaction for the Bank or the Company under the laws of
Louisiana; and the facts and representations made by the Company and the Bank
and relied upon in rendering such opinions are accurate and complete, and
neither the Company nor the Bank have taken any action inconsistent therewith.
(x) Neither the Company nor the Bank is in violation of any rule or
regulation of the OTS or the FDIC that could reasonably be expected to result in
any enforcement action against the Company or the Bank, or their officers or
directors.
(xi) Ferguson & Company ("Ferguson"), the firm that prepared the
independent appraisal dated as of March 8, 1999, is independent with respect to
the Company and the Bank within the meaning of the OTS Regulations. The Company
and the Bank believe Ferguson to be experienced and expert in rendering
appraisals of thrift institutions, and nothing has come to the attention of the
Company and the Bank which has caused them to believe that the appraisal by
Ferguson was not prepared in accordance with the requirements of the OTS
Regulations.
(xii) Murphy, Whalen & Broussard, the firm that certified the audited
financial statements of the Bank filed as part of the Registration Statement and
the Conversion Application,
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is independent with respect to the Company and the Bank as required by the
Securities Act, the Securities Act Regulations, the Code of Professional Ethics
of the American Institute of Certified Public Accountants, and Title 12 of the
Code of Federal Regulations Parts 563c and 571, and nothing has come to the
attention of the Company and the Bank which has caused them to believe that such
firm is not independent within the meaning of such provisions.
(xiii) The financial statements and related notes which are included in
the Registration Statement and the Prospectus fairly present the financial
condition, income, equity and cash flows of the Bank 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 the
Securities Act Regulations and the OTS Regulations. Such financial statements
have been prepared in accordance with generally accepted accounting principles
("GAAP") consistently applied throughout the periods involved, except as set
forth therein or in the notes thereto, and such financial statements are
consistent with financial statements and other reports filed by the Bank with
the OTS, except as GAAP may otherwise require. The financial tables in the
Prospectus accurately present the information purported to be shown thereby at
the respective dates thereof and for the respective periods covered thereby.
(xiv) There has been no material adverse change in the financial
condition, operations, business, assets or properties of the Company and the
Bank, taken as a whole, since the latest date as of which such condition is set
forth in the Prospectus, except as disclosed therein; and the capitalization,
assets, properties and business of each of the Company and the Bank conform in
all material aspects to the descriptions thereof contained in the Prospectus.
Neither the Company nor the Bank has any material liabilities of any kind,
contingent or otherwise, except as disclosed in the Prospectus.
(xv) There has been no breach or default (or the occurrence of any
event which, with notice or lapse of time or both, would constitute a default)
under, or creation or imposition of any lien, charge or other encumbrance upon
any of the properties or assets of the Company or the Bank pursuant to any of
the terms, provisions or conditions of, any agreement, contract, indenture,
bond, debenture, note, instrument or obligation to which the Company or the Bank
is a party or by which any of them or any of their respective assets or
properties may be bound or is subject, or violation of any governmental license
or permit or any enforceable published law, administrative regulation or order
or court order, writ, injunction or decree, which breach, default, lien, charge,
encumbrance or violation would have a material adverse effect on the financial
condition, operations, business, assets or properties of the Company and the
Bank, taken as a whole; all agreements which are material to the financial
condition, results of operations or business of the Company and the Bank, taken
as a whole, are in full force and effect, and no party to any such agreement has
instituted or, to the best knowledge of the Company and the Bank, threatened any
action or proceeding wherein the Company or the Bank would be alleged to be in
default thereunder.
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(xvi) Neither the Company nor the Bank is in violation of its
respective charter, articles of incorporation or bylaws. The execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby do not conflict with or result in a breach of the charter, articles of
incorporation or bylaws of the Company or the Bank (in either mutual or stock
form) or constitute a material breach of or default (or an event which, with
notice or lapse of time or both, would constitute a default) under, give rise to
any right of termination, cancellation or acceleration contained in, or result
in the creation or imposition of any lien, charge or other encumbrance upon any
of the properties or assets of the Company or the Bank pursuant to any of the
terms, provisions or conditions of, any material agreement, contract, indenture,
bond, debenture, note, instrument or obligation to which the Company or the Bank
is a party (other than the establishment of a liquidation account pursuant to
the Plan) or violate any governmental license or permit or any law,
administrative regulation or order or court order, writ, injunction or decree
(subject to the satisfaction of certain conditions imposed by the OTS in
connection with its approval of the Conversion Application and the Holding
Company Application), which breach, default, lien, charge, encumbrance or
violation would have a material adverse effect on the financial condition,
operations or business of the Company and the Bank, taken as a whole.
(xvii) Subsequent to the respective dates as of which information is
given in the Registration Statement and Prospectus, except as otherwise may be
indicated or contemplated therein, neither the Company nor the Bank has issued
any securities which will remain issued at the Closing Date or incurred any
liability or obligation, direct or contingent, or borrowed money, except
borrowings or liabilities in the ordinary course of business, or entered into
any other transaction not in the ordinary course of business and not consistent
with prior practices, which is material in light of the business of the Company
and the Bank, taken as a whole.
(xviii) The issuance and the sale of the Shares have been duly
authorized by all necessary action of the Company and approved by the OTS and,
when issued and paid for in accordance with the terms of the Plan, the Shares
shall be validly issued, fully paid and nonassessable and shall conform in all
material respects to the description thereof contained in the Prospectus; the
issuance of the Shares is not subject to preemptive rights, except for
subscription rights to the Shares granted pursuant to the Plan; and good title
to the Shares will be transferred by the Company upon issuance thereof against
payment therefor, free and clear of all claims, encumbrances, security interests
and liens against the Company whatsoever. The issuance and sale of the capital
stock of the Bank to the Company has been duly authorized by all necessary
action of the Bank and the Company and the OTS (subject to the satisfaction of
various conditions imposed by the OTS in connection with its approval of the
Conversion Application, and imposed by the OTS in connection with its approval
of the Holding Company Application), and such capital stock, when issued in
accordance with the terms of the Plan, will be fully paid and nonassessable.
(xix) No approval of any regulatory or supervisory or other public
authority is required to be obtained by the Company or the Bank in connection
with the execution and delivery of this Agreement or the issuance of the Shares,
except such approvals as have been obtained and except
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for the declaration of effectiveness of any required post-effective amendment by
the Commission and approval thereof by the OTS, the issuance of the Bank's Stock
Charter by the OTS and as may be required under the "blue sky" or securities
laws of various jurisdictions.
(xx) All contracts and other documents required to be filed as exhibits
to the Registration Statement, the Conversion Application or the Holding Company
Application have been filed with the Commission or the OTS or both, as the case
may be.
(xxi) The Company and the Bank have timely filed all required federal,
state and local tax returns, and no deficiency has been asserted with respect to
such returns by any taxing authorities, and the Company and the Bank have paid
all taxes that have become due and, to the best knowledge of the Company and the
Bank, have made adequate reserves for accrued tax liabilities, except where any
failure to make such filings, payments and reserves, or the assertion of such a
deficiency, would not have a material adverse effect on the financial condition
or results of operations of the Company and the Bank, taken as a whole.
(xxii) All of the loans represented as assets of the Bank as of the
most recent date for which financial condition data is included in the
Prospectus meet or are exempt from all requirements of federal, state or local
law pertaining to lending, including without limitation truth in lending
(including the requirements of Regulation Z and 12 C.F.R. Part 226 and Section
563.99), real estate settlement procedures, consumer credit protection, equal
credit opportunity and all disclosure laws applicable to such loans, except for
violations which, if asserted, would not have a material adverse effect on the
Company and the Bank, taken as a whole.
(xxiii) The records of Eligible Account Holders, Supplemental Eligible
Account Holders and Other Members (as those terms are defined in the Plan)
delivered to Trident by the Bank or its agent in connection with the Conversion
are accurate, reliable and complete in all material respects.
(xxiv) Neither the Company nor the Bank has made any payment of funds
of the Company or the Bank prohibited by law, and no funds of the Company or the
Bank have been set aside to be used for any payment prohibited by law.
(xxv) To the best knowledge of the Company and the Bank, the Company
and the Bank are in compliance with all laws, rules and regulations relating to
environmental protection and neither the Company nor the Bank is subject to
liability under the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, or any similar law, except for violations
which, if asserted, would not have a material adverse effect on the Company and
the Bank, taken as a whole. There are no actions, suits, regulatory
investigations or other proceedings pending or, to the best knowledge of the
Company or the Bank, threatened against the Company or the Bank relating to
environmental protection. To the best knowledge of the Company and the Bank, no
disposal, release or discharge of hazardous or toxic substances, pollutants or
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contaminants, including petroleum and gas products, as any of such terms may be
defined under federal, state or local law, has been caused by the Company or the
Bank or, to the best knowledge of the Company and the Bank, or except as already
disclosed in the Prospectus, has occurred on, in or at any of the facilities or
properties owned or leased by the Company or the Bank or in which the Company or
the Bank has a security interest, except such disposal, release or discharge
which would not have a material adverse effect on the financial condition,
operations, business, assets or properties of the Company, the Bank or the
subsidiary, taken as a whole.
(xxvi) All books and records of the Company and the Bank delivered to
Trident by the Bank and the Company or their representatives in connection with
Trident's due diligence examination of the Company and the Bank were, on the
dates on which they or any amendments or supplements thereto, as applicable,
were delivered, accurate and complete in all material respects.
(b) Trident represents and warrants to the Company and the Bank that:
(i) Trident is registered as a broker-dealer with the Commission and no
withdrawal of its registration is pending or, to the best knowledge of Trident,
threatened; and Trident is in good standing with the Commission and the NASD.
(ii) Trident is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation, with full corporate power
and authority to provide the services to be furnished to the Company and the
Bank hereunder.
(iii) The execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby have been duly and validly authorized by
all necessary action on the part of Trident, and this Agreement is a legal,
valid and binding obligation of Trident, enforceable in accordance with its
terms (except as the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, reorganization or similar laws relating to or affecting
the enforcement of creditors' rights generally or the rights of creditors of
registered broker-dealers the accounts of whom may be protected by the
Securities Investor Protection Corporation or by general equity principles,
regardless of whether such enforceability is considered in a proceeding in
equity or at law, and except to the extent that the provisions of Sections 8 and
9 hereof may be unenforceable as against public policy).
(iv) Trident and, to Trident's best knowledge, each of its employees,
agents and representatives who shall perform any of the services required
hereunder to be performed by Trident, is duly authorized and has all licenses,
approvals and permits necessary to perform such services. Trident is a
registered selling agent in each jurisdiction, other than Hawaii and South
Dakota, and no withdrawal of its registration is pending or, to the best
knowledge of Trident, threatened; and Trident will remain registered in such
jurisdictions in which the Company is
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relying on such registration for the sale of the Shares, and will remain so
registered until the Conversion is consummated or terminated.
(v) The execution and delivery of this Agreement by Trident, the
fulfillment of the terms set forth herein and the consummation of the
transactions contemplated hereby shall not violate or conflict with the charter
or bylaws of Trident or violate, conflict with or constitute a breach of, or
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, any material agreement, indenture or other
instrument by which Trident is bound or under any governmental license or permit
or any law, administrative regulation, authorization, approval or order or court
decree, injunction or order.
(vi) All funds received by Trident to purchase Common Stock will be
handled in accordance with Rule 15c2-4 under the Securities Exchange Act of
1934, as amended ("Exchange Act").
(vii) No action or proceeding against Trident before the Commission,
the NASD, any state securities commission, or any state or federal court is
pending or, to Trident's best knowledge, threatened concerning Trident's
activities as a broker-dealer.
(viii) No action, suit, charge or proceeding is pending or, to the best
knowledge of Trident, threatened against Trident which, if determined adversely
to Trident, would have a material adverse effect on Trident's ability to perform
its obligations under this Agreement.
3. Engagement of Trident; Sale and Delivery of the Shares. On the basis
of the representations and warranties herein contained, but subject to the terms
and conditions herein set forth, the Company and the Bank hereby engage Trident
as their agent to utilize its best efforts to assist the Company with the
Company's sale of the Shares in the Offerings, and Trident hereby accepts such
engagement. The engagement of Trident hereunder shall terminate (a) forty-five
(45) days after the Subscription and Community Offering closes, unless the
Company and the Bank, with the approval of the OTS, are permitted to extend such
period of time, or (b) upon consummation of the Conversion, whichever date shall
first occur.
In the event the Company is unable to sell a minimum of _______ Shares
(or such lesser amount as the OTS may permit) within the period herein provided
(including any permitted extensions), this Agreement shall terminate, and the
Company and the Bank shall refund promptly to any persons who have subscribed
for any of the Shares the full amount which they may have received from such
persons, together with interest as provided in the Prospectus, and no party to
this Agreement shall have any obligation to the other party hereunder, except as
set forth in Sections 6, 8, 9 and 11(d) hereof. Appropriate arrangements for
placing the funds received from subscriptions for Shares in special
interest-bearing accounts with the Bank until all Shares are sold and paid for
will be made prior to the commencement of the Subscription and Community
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Offering, with provision for prompt refund to the purchasers as set forth above,
or for delivery to the Company if all Shares are sold.
If all conditions precedent to the consummation of the Conversion are
satisfied, including the sale of all Shares required by the Plan to be sold, the
Company agrees to issue or have issued such Shares and to release for delivery
certificates to subscribers thereof for such Shares on or as soon as possible
following the Closing Date against payment to the Company by any means
authorized pursuant to the Prospectus, at the principal office of the Company or
at such other place as shall be agreed upon between the parties hereto. The date
upon which the Company shall release or deliver the Shares sold in the
Offerings, in accordance with the terms hereof, is herein called the "Closing
Date."
Trident agrees either (a) upon receipt of an executed order form of a
subscriber to forward the offering price of the Common Stock ordered on or
before twelve noon on the next business day following receipt or execution of an
order form by Trident to the Bank for deposit in a segregated account or (b) to
solicit indications of interest in which event (i) Trident will subsequently
contact any potential subscriber indicating interest to confirm the interest and
give instructions to execute and return an order form or to receive
authorization to execute the order form on the subscriber's behalf, (ii) Trident
will mail acknowledgements of receipt of orders to each subscriber confirming
interest on the business day following such confirmation, (iii) Trident will
debit accounts of such subscribers on the third business day ("debit date")
following receipt of the confirmation referred to in (i), and (iv) Trident will
forward completed order forms together with such funds to the Bank on or before
twelve noon on the next business day following the debit date for deposit in a
segregated account. Trident acknowledges that if the procedure in (b) is
adopted, subscribers' funds are not required to be in their accounts until the
debit date.
Trident shall receive the following compensation and expense
reimbursement for its services hereunder:
(a) A management fee of $70,000, to be paid to Trident in
next-day funds on the Closing Date.
(b) In the event of a Syndicated Community Offering (as
defined in the Plan), a commission to be agreed upon jointly by
Trident, the Company and the Bank for Shares sold by other member firms
of the NASD through a selected dealers arrangement in the Syndicated
Community Offering. Such commission shall reflect market requirements
at the time of the allocation of Shares in the Syndicated Offering, and
shall be paid to Trident in next-day funds on the Closing Date.
(c) Reimbursement for reasonable out-of-pocket allocable
expenses, including but not limited to travel, food, lodging and legal
fees, incurred by it whether or not the Offerings are successfully
completed; provided, however, that reimbursable legal fees and
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out-of-pocket expenses will not exceed $30,000, and, provided further,
that neither the Company nor the Bank shall reimburse Trident for any
of the foregoing expenses accrued after Trident shall have notified the
Company or the Bank of its election to terminate this Agreement
pursuant to Section 11 hereof or after such time as the Company or the
Bank shall have given notice in accordance with Section 12 hereof that
Trident is in breach of this Agreement or that the Company and the Bank
are terminating this Agreement pursuant to Section 11 hereof. Full
reimbursement of Trident shall be made in next-day funds on the Closing
Date or, if the Conversion is not completed and is terminated for any
reason, within ten (10) business days of receipt by the Company of a
written request detailing allocable expenses from Trident for
reimbursement of such expenses. Trident acknowledges receipt of a
$10,000 advance payment from the Bank, which shall be credited against
the total reimbursement due Trident hereunder. In the event this
Agreement is terminated pursuant to Section 11 hereof, Trident shall be
reimbursed only for its actual allocable expenses.
(d) Reimbursement for any expenses of the Company and the Bank
set forth in Section 6 hereof to the extent paid by Trident on behalf
of the Company and the Bank. Full reimbursement shall be made in
next-day funds on the Closing Date or, if the Conversion is not
completed and is terminated for any reason, within ten (10) business
days of receipt by the Company and the Bank of a written request for
such reimbursement detailing such reimbursements.
Notwithstanding the limitations on reimbursement of Trident for its
allocable expenses provided in subsection (b) above and notwithstanding any
reimbursement of Trident pursuant to subsection (c) above, in the event that a
resolicitation or other event causes the Offerings to be extended beyond their
original expiration date, the parties agree to renegotiate in good faith the
limit on legal fees and out-of-pocket expenses set forth in subparagraph (c)
above; provided, however, that the failure to renegotiate shall not result in a
termination of this Agreement.
4. Offering. Subject to the provisions of Section 7 hereof, Trident is
assisting the Company on a best efforts basis in offering a minimum of ______
and a maximum of _______ Shares, subject to adjustment up to _______ Shares
(except as the OTS may permit the number of Shares to be decreased or increased)
in the Offerings. The Shares are to be offered to the public at the price set
forth on the cover page of the Prospectus and the first page of this Agreement.
5. Further Agreements. The Company and the Bank jointly and severally
covenant and agree that:
(a) Subsequent to the respective dates as of which information is given
in the Registration Statement and Prospectus and through and including the
Closing Date, except as otherwise may be indicated or contemplated therein,
neither the Company nor the Bank will issue any securities which will remain
issued at the Closing Date or incur any liability or obligation,
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direct or contingent, or borrow money, except borrowings or liabilities in the
ordinary course of business, or enter into any other transaction not in the
ordinary course of business and consistent with prior practices, which is
material in light of the financial condition, operations, business, properties
or assets of the Company and the Bank, taken as a whole.
(b) If any Shares required to be sold remain unsubscribed following
completion of the Subscription Offering and the Community Offering, the Company
(i) will, if deemed necessary, promptly file with the Commission a
post-effective amendment to such Registration Statement relating to the results
of the Subscription and the Community Offerings, any additional information with
respect to the proposed plan of distribution and any revised pricing information
or (ii) if no such post-effective amendment is required, will file with, or mail
for filing to, the Commission a prospectus or prospectus supplement containing
information relating to the results of the Subscription and Community Offerings
and pricing information pursuant to Rule 424(c) of the Securities Act
Regulations, in either case in a form reasonably acceptable to the Company and
Trident.
(c) Upon consummation of the Conversion, the authorized, issued and
outstanding equity capital of the Company shall be within the range as set forth
in the Prospectus under the caption "Our Capitalization," and no Common Stock of
the Company shall be outstanding immediately prior to the Closing Date (other
than shares of Common Stock issued in connection with the initial capitalization
of the Company, which shares will be canceled upon consummation of the
Conversion); and the certificates representing the Common Stock will conform in
all material respects with the requirements of applicable laws and OTS
Regulations.
(d) At all times subsequent to the date of the Prospectus through and
including the Closing Date, (i) the Registration Statement and the Prospectus
will comply as to form in all material respects with the Securities Act and the
Securities Act Regulations, (ii) the Registration Statement will not contain 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, and (iii) the
Prospectus will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. (The agreements in this subsection shall not apply to statements
or omissions made in reliance upon and in conformity with written information
furnished to the Company or the Bank relating to Trident by or on behalf of
Trident expressly for use in the Registration Statement or Prospectus.).
(e) Upon amendment of the Bank's charter and bylaws as provided in the
OTS Regulations and completion of the sale and issuance of the Shares by the
Company as contemplated by the Prospectus, (i) the Bank will be converted
pursuant to the Plan to a federally chartered capital stock savings bank with
full power and authority to own its property and conduct its business as
described in the Prospectus, (ii) all of the authorized and outstanding capital
stock of
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Page 13
the Bank will be owned of record and beneficially by the Company, and (iii) the
Company will have no direct subsidiaries other than the Bank.
(f) The Company shall deliver to Trident, from time to time, such
number of copies of the Prospectus as Trident reasonably may request. The
Company authorizes Trident to use the Prospectus in any lawful manner in
connection with the offer and sale of the Shares.
(g) The Company will notify Trident immediately, and confirm the notice
in writing, (i) when any post-effective amendment to the Registration Statement
becomes effective or any supplement to the Prospectus has been filed, (ii) of
the issuance by the Commission of any stop order relating to the Registration
Statement or of the initiation or the threat of any proceedings for that
purpose, (iii) of the receipt of any notice with respect to the suspension of
the qualification of the Shares for offering or sale in any jurisdiction, and
(iv) of the receipt of any comments from the staff of the Commission relating to
the Registration Statement. If the Commission enters a stop order relating to
the Registration Statement at any time, the Company will make every reasonable
effort to obtain the lifting of such order at the earliest possible moment.
(h) During the time when a prospectus is required to be delivered under
the Securities Act, the Company will comply with all requirements imposed upon
it by the Securities Act and by the Securities Act Regulations to permit the
continuance of offers and sales of or dealings in the Shares in accordance with
the provisions hereof and the Prospectus. If during the period when the
Prospectus is required to be delivered in connection with the offer and sale of
the Shares any event relating to or affecting the Company and the Bank, taken as
a whole, shall occur as a result of which it is necessary, in the reasonable
opinion of counsel for Trident, to amend or supplement the Prospectus in order
to make the Prospectus not false or misleading in light of the circumstances
existing at the time it is delivered to a purchaser of the Shares, the Company
forthwith shall prepare and furnish to Trident a reasonable number of copies of
an amendment or amendments or of a supplement or supplements to the Prospectus
(in form and substance reasonably satisfactory to counsel for Trident) which
shall amend or supplement the Prospectus so that, as amended or supplemented,
the Prospectus shall not contain an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in
light of the circumstances existing at the time the Prospectus is delivered to a
purchaser of the Shares, not misleading. The Company will not file or use any
amendment or supplement to the Registration Statement or the Prospectus unless
Trident has been first furnished a copy or if Trident shall reasonably object
after having been furnished such copy. For the purposes of this subsection, the
Company and the Bank shall furnish such information with respect to themselves
as Trident from time to time may reasonably request.
(i) The Company and the Bank will take all reasonably necessary action
as may be required to qualify or register the Shares for offer and sale by the
Company under the securities or blue sky laws of such jurisdictions as Trident
and the Company or its counsel may agree upon; provided, however, that the
Company shall not be required to offer or sell Shares in any
Trident Securities
Page 14
jurisdiction in which the Company would be required to file any consent to
service of process in such jurisdiction, to qualify as a foreign corporation to
do business under the laws of any such jurisdiction, or to register its
directors or officers as brokers, dealers, salesmen or agents therein. In each
jurisdiction where such qualification or registration shall be effected, the
Company, unless Trident agrees that such action is not necessary or advisable in
connection with the distribution of the Shares, shall file and make such
statements or reports as are, or reasonably may be, required by the laws of such
jurisdiction.
(j) Appropriate entries will be made in the financial records of the
Bank to establish a liquidation account for the benefit of Eligible Account
Holders and Supplemental Eligible Account Holders (as those terms are defined in
the Plan) in accordance with the OTS Regulations.
(k) The Company will file a registration statement for the Common Stock
under the Exchange Act prior to completion of the Offerings pursuant to the
Plan. The Company shall maintain the effectiveness of such registration for a
minimum period of three years or for such shorter period as may be permitted by
law.
(l) The Company will make generally available to its security holders
as soon as practicable, but not later than 90 days after the close of the period
covered thereby, an earnings statement (in form complying with the provisions of
Rule 158 of the Securities Act Regulations) covering a twelve-month period
beginning not later than the first day of the Company's fiscal quarter next
following the effective date (as defined in said Rule 158) of the Registration
Statement.
(m) For a period of three (3) years from the date of this Agreement,
the Company will furnish to Trident (i) as soon as publicly available after the
end of each fiscal year, a copy of its annual report to shareholders for such
year; (ii) as soon as publicly available, a copy of each report or definitive
proxy statement of the Company filed with the Commission under the Exchange Act
or mailed to shareholders; and (iii) from time to time, such other public
information concerning the Company as Trident may reasonably request.
(n) The Company shall use the net proceeds from the sale of the Shares
in the manner set forth in the Prospectus.
(o) The Company shall not deliver the Shares until each and every
condition set forth in Section 7 hereof has been satisfied, unless such
condition is waived in writing by Trident.
(p) The Company and the Bank shall assist Trident, if necessary, in
connection with the allocation of the Shares pursuant to the Plan in the event
of an oversubscription for the Shares and shall provide Trident with any
necessary information to assist the Company and the Bank in the allocation of
the Shares ("Allocation Instructions") in such event, and, to the best knowledge
Trident Securities
Page 15
of the Company and the Bank, such information shall be accurate and reliable in
all material respects.
(q) The Company and the Bank will take such actions and furnish such
information as are reasonably requested by Trident in order for Trident to
comply with the NASD's "Interpretation Relating to Free-Riding and Withholding."
(r) At the Closing Date, the Company and the Bank will have completed
the conditions precedent to, and shall have conducted the Conversion in all
material respects in accordance with, the Plan, OTS Regulations and all other
applicable laws, regulations, published decisions and orders, including all
terms, conditions, requirements and provisions precedent imposed by the OTS.
(s) The Company shall use its best efforts to list the Shares on the
Nasdaq quotation system to be effective on or prior to the Closing Date, as
required by the OTS Regulations.
6. Payment of Expenses. Subject to Section 3(c) hereof, whether or not
the Conversion is consummated, the Company and the Bank shall pay the following
expenses: (a) all regulatory filing fees, including but not limited to those
payable to the Commission, OTS, "blue sky" authorities and the NASD (including
fees payable to the NASD for Trident's filing pursuant to the NASD Corporate
Finance Rule), (b) all stock issue and transfer taxes which may be payable with
respect to the sale of the Shares, (c) attorneys' fees incurred by the Company
and the Bank, (d) attorneys' fees relating to any required "blue sky" laws
research and filings, (e) telephone charges, (f) air freight, (g) rental
equipment, (h) supplies, (i) transfer agent and registrar fees and expenses, (j)
auditing and accounting fees and expenses, (k) costs of printing and mailing all
documents necessary in connection with the Conversion, and (l) slide production
expenses in connection with any community investor meetings to be held by
Trident.
7. Conditions of Trident's Obligations. Except as may be waived in
writing by Trident, the obligations of Trident as provided herein shall be
subject to the accuracy of the representations and warranties contained in
Section 2 hereof as of the date hereof and as of the Closing Date, to the
performance by the Company and the Bank of their obligations hereunder, and to
the following conditions:
(a) At the Closing Date, Trident shall receive the favorable opinion of
Elias, Matz, Tiernan & Herrick L.L.P., counsel for the Company and the Bank,
dated the Closing Date, addressed to Trident, in form and substance reasonably
satisfactory to counsel for Trident and stating that:
(i) the Company has been incorporated and is validly existing
as a corporation under the laws of the State of Louisiana, and its
Articles of Incorporation and Bylaws comply in all materials respects
with Louisiana law;
Trident Securities
Page 16
(ii) the Company has full power and authority to own, lease
and operate its properties and to conduct its business as described in
the Prospectus;
(iii) the Company is not in violation of its Articles of
Incorporation or, to such counsel's Actual Knowledge, its bylaws;
(iv) the Bank is validly existing as a mutual savings bank
under the laws of the United States, with full power and authority to
own its properties and conduct its business as described in the
Prospectus; and, to such counsel's Actual Knowledge, the Bank has
obtained all federal banking licenses, permits and authorizations
currently required for the conduct of its business as described in the
Prospectus, all of which are in full force and effect, except where the
failure to obtain such licenses, permits or authorizations would not
have a material adverse effect on the Bank;
(v) the Bank is a member of the Federal Home Loan Bank of
Dallas, and the deposit accounts of the Bank are insured by the FDIC up
to the applicable legal limits; and no action or proceeding to suspend
or revoke such membership or insurance coverage is pending or, to such
counsel's Actual Knowledge, threatened;
(vi) the activities of the Bank as described in the Prospectus
are permitted under the HOLA and OTS Regulations;
(vii) to such counsel's Actual Knowledge, the Bank has no
direct or indirect subsidiary corporations;
(viii) upon consummation of the Conversion, the Company will
have authorized, issued and outstanding Common Stock within the range
set forth in the Prospectus, and the description of the Common Stock in
the Prospectus is accurate in all material respects;
(ix) the Plan complies in all material respects with the HOLA
and the OTS Regulations and has been duly and validly adopted by the
Boards of Directors of the Company and the Bank; to such counsel's
Actual Knowledge, the requisite number of votes of the members of the
Bank have been cast in favor of the Plan to approve it under the terms
of the Plan and applicable law; and, to such counsel's Actual
Knowledge, no person has sought to obtain regulatory or judicial review
of the final action of the OTS in approving the Plan;
(x) the issuance and sale of the Shares have been duly and
validly authorized by all necessary corporate action on the part of the
Company and the Bank; the Shares, upon receipt of consideration and
issuance in accordance with the terms of the Plan and this Agreement,
will be validly issued, fully paid, nonassessable and, except as
disclosed in the Prospectus, free of preemptive rights, and good title
thereto shall be transferred by
Trident Securities
Page 17
the Company free and clear of all claims, encumbrances, security
interests and liens created by the Company;
(xi) the certificates for the Common Stock are in due and
proper form and comply in all material respects with applicable
Louisiana law and OTS Regulations;
(xii) the issuance and sale of the capital stock of the Bank
to the Company have been duly authorized by all necessary corporate
action of the Bank and have received the approval of the OTS, and such
capital stock, upon receipt of payment and issuance in accordance with
the terms of the Plan, will be validly issued, fully paid and
nonassessable and good title thereto shall be transferred by the Bank
free and clear of all claims, encumbrances, security interests and
liens created by the Bank;
(xiii) subject to the satisfaction of the conditions to the
OTS approval of the Conversion Application, and to the OTS approval of
the Holding Company Application, no further approval, authorization,
consent or other order of any federal regulatory agency is required in
connection with the execution and delivery of this Agreement, the
issuance and sale of the Shares and the consummation of the Conversion,
except with respect to the issuance of the Bank's Stock Charter by the
OTS, and except as may be required under the "blue sky" securities laws
of various jurisdictions and the regulations of the NASD (as to which
no opinion need be rendered);
(xiv) the execution and delivery of this Agreement and the
consummation of the Conversion have been duly and validly authorized by
all necessary corporate action on the part of each of the Company and
the Bank; and this Agreement is a legal, valid and binding obligation
of each of the Company and the Bank, enforceable in accordance with its
terms, except as the enforceability thereof may be limited by (i)
bankruptcy, insolvency, reorganization, moratorium, receivership,
conservatorship or other laws relating to or affecting the enforcement
of creditors' rights generally or the rights of creditors of depository
institutions whose accounts are insured by the FDIC or savings and loan
holding companies the accounts of whose subsidiaries are insured by the
FDIC; (ii) general equity principles, regardless of whether such
enforceability is considered in a proceeding in equity or at law; or
(iii) laws relating to the safety and soundness of insured depository
institutions and their affiliates, and except to the extent that the
provisions of Sections 8 and 9 hereof may be unenforceable as against
public policy or applicable law, including but not limited to Sections
23A and 23B;
(xv) except as set forth in the Prospectus, there are no legal
or governmental proceedings pending or, to such counsel's Actual
Knowledge, threatened against or involving the assets of the Company or
the Bank which would have a material adverse effect on the Company and
the Bank, taken as a whole (provided that for this purpose such counsel
need not regard any litigation or governmental procedure to be
"threatened" unless
Trident Securities
Page 18
the potential litigant or government authority has manifested to the
management of the Company or the Bank, or to such counsel, a present
intention to initiate such litigation or proceeding);
(xvi) the statements in the Prospectus under the captions "We
Intend to Pay Quarterly Cash Dividends," "Regulation," "Taxation," "
Restrictions on Acquisition of FPB Financial and Florida Parishes
Bank," "Description of Capital Stock of FPB Financial," and "The
Conversion," insofar as they are, or refer to, statements of law or
legal conclusions (excluding financial or statistical data or stock
valuation information included therein, as to which an opinion need not
be expressed), have been prepared or reviewed by such counsel and are
accurate and complete in all material respects;
(xvii) the Form AC has been approved by the OTS, and the
Prospectus and the Proxy Statement have been authorized for use by the
OTS; the OTS has approved the Holding Company Application; the
Registration Statement has been declared effective by the Commission;
the Common Stock is subject to an effective registration statement
filed under the Exchange Act; and no proceedings are pending by or
before the Commission or the OTS seeking to revoke or rescind the
orders declaring the Registration Statement or the registration
statement under the Exchange Act effective or approving the Conversion
Application or, to such counsel's Actual Knowledge, are contemplated or
threatened (provided that for this purpose such counsel need not regard
any such proceeding to be "threatened" unless the government authority
has manifested to the management of the Company or the Bank, or to such
counsel, a present intention to initiate such litigation or
proceeding);
(xviii) the execution, delivery and fulfillment of the terms
of this Agreement and the consummation of the Conversion by the Company
and the Bank (A) do not conflict with or result in a breach of the
charter, articles of incorporation or bylaws of the Company or the Bank
(in either mutual or stock form), or (B) to such counsel's Actual
Knowledge, in any material respect, violate, conflict with or
constitute a breach of, or default (or an event which, with notice or
lapse of time or both, would constitute a default) under (I) any
material agreement, indenture or other instrument filed as an exhibit
to the Registration Statement or (II) any published federal banking law
or regulation (subject to the satisfaction of certain post-Conversion
conditions imposed by the OTS in connection with its approval of the
Conversion Application and the Holding Company Application), except
where such violation, conflict, breach or default would not have a
material adverse effect on the financial condition, operations,
business, assets or properties of the Company and the Bank, taken as a
whole;
(xix) to such counsel's Actual Knowledge, there has been no
breach of any provision of the Company's or the Bank's charter or
articles of incorporation, as the case may be, or bylaws; to such
counsel's Actual Knowledge, there has been no breach or
Trident Securities
Page 19
default (or the occurrence of any event which, with notice or lapse of
time or both, would constitute a default) by the Company or the Bank
under any agreement, contract, indenture, bond, debenture, note,
instrument or obligation to which the Company or the Bank is a party or
by which any of them or any of their respective assets or properties
may be bound, which breach or default in any case would have a material
adverse effect on the financial condition, operations, business, assets
or properties of the Company and the Bank, taken as a whole;
(xx) at the time the Conversion Application was approved by
the OTS and at the time the Registration Statement was declared
effective by the Commission, the Conversion Application and the
Registration Statement (including the Prospectus and the Proxy
Statement contained therein), complied as to form in all material
respects with the requirements of the Securities Act, the HOLA, the
Securities Act Regulations and the OTS Regulations, as the case may be
(except as to information provided in writing by Trident with respect
to Trident included therein and financial statements, notes to
financial statements, financial tables, pro forma and other financial
and statistical data and stock valuation information included therein,
as to which no opinion need be rendered); to such counsel's Actual
Knowledge, all documents and exhibits required to be filed with the
Conversion Application and the Registration Statement have been so
filed; and the descriptions in the Conversion Application and the
Registration Statement of such documents and exhibits are accurate and
complete in all material respects;
(xxi) upon the effectiveness of the Bank's stock charter and
bylaws in accordance with applicable regulations and completion of the
sale by the Company of the Shares as contemplated by the Prospectus and
the Plan, (i) the Bank will be converted to a permanent capital stock
savings bank under federal law with full power and authority to own its
property and conduct its business as described in the Prospectus, and
(ii) all of the outstanding capital stock of the Bank will be owned of
record and, to such counsel's Actual Knowledge, beneficially by the
Company, free and clear of all liens, charges, encumbrances and
restrictions; and
(xxii) except with respect to certain post-Conversion reports
or other materials required to be filed by the Company and the Bank and
any other actions required to be performed after the Closing Date, to
such counsel's Actual Knowledge, the Company and the Bank have
satisfied, in all material respects, all the conditions of approval of
the Conversion Application and the Holding Company Application
contained in the final approval letters of the OTS.
In rendering such opinion, such counsel may rely as to matters
of fact on certificates of executive officers and directors of the
Company and the Bank and
Trident Securities
Page 20
certificates of public officials delivered pursuant hereto. Such
counsel may assume that any agreement is the valid and binding
obligation of any parties to such agreement other than the Company and
the Bank. Such opinion shall be governed by, and interpreted in
accordance with, the Legal Opinion Accord ("Accord") of the American
Bar Association Section of Business Law (1991), and, as a consequence,
references in such opinion to such counsel's "Actual Knowledge" shall
be as such term is defined in the Accord (or knowledge based on
certificates). The opinion of Elias, Matz, Tiernan & Herrick L.L.P.
shall be limited to matters governed by federal banking and securities
laws and regulations and the State of Louisiana Business Corporation
Law. For purposes of such opinion, no proceeding 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 or the Bank, or its
counsel, shall have received a copy of such proceeding, order, stop
order or action. Such opinion may be limited to statutes, regulations
and judicial interpretations and to facts as they exist as of the date
of such opinions. In rendering such opinion, such counsel need assume
no obligation to revise or supplement it should such statutes,
regulations and judicial interpretations be changed by legislative or
regulatory action, judicial decision or otherwise. 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 execution and delivery by the Company and
the Bank of this Agreement or the issuance of the Shares.
(b) At the Closing Date, Trident shall receive the letter of
Elias, Matz, Tiernan & Herrick L.L.P., counsel for the Company and the
Bank, dated the Closing Date, addressed to Trident, in form and
substance reasonably satisfactory to counsel for Trident and to the
effect that: (i) based on such counsel's participation in conferences
with representatives of the Company and the Bank, their counsel, the
independent appraiser, the independent certified public accountants for
the Company and the Bank, Trident and its counsel, review of various
documents and applicable law (including the requirements of Form SB-2
and the character of the Registration Statement contemplated thereby)
and the experience such counsel has gained in its practice under the
Securities Act, nothing has come to such counsel's attention that would
lead it to believe that (i) the Registration Statement (except as to
information regarding Trident contained therein and except as to the
financial statements, notes to financial statements, financial tables,
pro forma and other financial and statistical data and stock valuation
information contained therein, as to which such counsel need express no
view), at the time it became effective and at the time any
post-effective amendment thereto became effective, contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements made
therein, in light of the circumstances under which they were
Trident Securities
Page 21
made, not misleading, and (ii) the Prospectus (except as to information
regarding Trident contained therein and except as to financial
statements, notes to financial statements, financial tables, pro forma
and other financial and statistical data and stock valuation
information contained therein as to which such counsel need express no
view), as of its date and as of the Closing Date, contained any untrue
statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading. In issuing such letter,
such counsel may indicate that it has not confirmed the accuracy or
completeness of or otherwise verified the factual information contained
in the Registration Statement or the Prospectus, that it does not
assume any responsibility for the accuracy or completeness thereof, and
that it is relying as to factual matters on certificates of officers
and other factual representations by the Company and the Bank.
(c) Counsel for Trident shall have been furnished such
documents as they reasonably may require for the purpose of enabling
them to review or pass upon the sale of the Shares as herein
contemplated and related proceedings, and for the purpose of evidencing
the accuracy, completeness or satisfaction of any of the
representations, warranties or conditions herein contained, including
but not limited to, resolutions of the Board of Directors of the
Company and the Bank regarding the authorization of this Agreement and
the transactions contemplated hereby.
(d) Prior to and at the Closing Date, in the reasonable
opinion of Trident, (i) there shall have been no material adverse
change in the financial condition, business, operations, assets or
properties of the Company and the Bank, taken as a whole, since the
latest date as of which such condition is set forth in the Prospectus,
except as referred to or contemplated therein; (ii) there shall have
been no transaction entered into by the Company or the Bank after the
latest date as of which the financial condition of the Company or the
Bank is set forth in the Prospectus other than transactions referred to
or contemplated therein, transactions in the ordinary course of
business, and transactions which are not material to the Company and
the Bank, taken as a whole; (iii) none of the Company or the Bank shall
have received from the OTS or the Commission any directive (oral or
written) to make any change in the method of conducting their
respective businesses which is material to the business of the Company
and the Bank, taken as a whole, with which they have not complied; (iv)
no action, suit or proceeding, at law or in equity or before or by any
federal or state commission, board or other administrative agency,
shall be pending or threatened against the Company or the Bank or
affecting any of their respective assets, wherein an unfavorable
decision, ruling or finding would have a material adverse effect on the
business, operations, financial condition or income of the Company and
the Bank, taken as a whole; and (v) the Shares shall have been
qualified or
Trident Securities
Page 22
registered for offering and sale by the Company under the securities or
"blue sky" laws of such jurisdictions as Trident and the Company shall
have agreed upon.
(e) At the Closing Date, Trident shall receive a certificate
of the principal executive officer and the principal financial officer
of each of the Company and the Bank, dated the Closing Date, to the
effect that: (i) he has examined the Prospectus and, to the best
knowledge of such officer, the Prospectus does not contain an untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in light of the circumstances
under which they were made, not misleading with respect to the Company
or the Bank; (ii) no event has occurred since the date of the
Prospectus which should have been set forth in an amendment or
supplement to the Prospectus which has not been so set forth, including
specifically, but without limitation, any material adverse change in
the business, financial condition, operations, assets or properties of
the Company or the Bank and, the conditions set forth in clauses (ii)
through (iv) inclusive of subsection (d) of this Section 7 have been
satisfied; (iii) no order has been issued by the Commission or the OTS
to suspend the Offerings or the effectiveness of the Prospectus, and,
to the best knowledge of such officer, no action for such purposes has
been instituted or threatened by the Commission or the OTS; (iv) to the
best knowledge of such officer, no person has sought to obtain review
of the final actions of the OTS approving the Plan; and (v) all of the
representations and warranties contained in Section 2 of this Agreement
are true and correct, with the same force and effect as though
expressly made on the Closing Date.
(f) At the Closing Date, Trident shall, if it has not already
received, receive, among other documents, (i) copies of the letters
from the OTS authorizing the use of the Prospectus and the Proxy
Statement, (ii) a copy of the order of the Commission declaring the
Registration Statement effective; (iii) a copy of the certificate from
the OTS evidencing the corporate existence of the Bank; (iv) a copy of
the certificate from the FDIC evidencing the insured status of the
Bank, (v) a copy of the letter from the appropriate Louisiana authority
evidencing the incorporation (and, if generally available from such
authority, good standing) of the Company; and (vi) a copy of the
Company's articles of incorporation certified by the appropriate
Louisiana governmental agency.
(g) As soon as available after the Closing Date, Trident shall
receive a certified copy of the Bank's Stock Charter as executed by the
OTS.
(h) Concurrently with the execution of this Agreement, Trident
acknowledges receipt of a letter from Murphy, Whalen & Broussard,
independent certified public accountants, addressed to Trident, in
substance and form reasonably satisfactory to counsel
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for Trident, with respect to the financial statements of the Bank and
certain financial information contained in the Prospectus.
(i) At the Closing Date, Trident shall receive a letter in
form and substance reasonably satisfactory to counsel for Trident from
Murphy, Whalen & Broussard, independent certified public accountants,
dated the Closing Date and addressed to Trident, confirming the
statements made by them in the letter delivered by them pursuant to the
preceding subsection as of a specified date not more than five (5)
business days prior to the Closing Date.
All such opinions, certificates, letters and documents shall be in
compliance with the provisions hereof only if they are, in the reasonable
opinion of Trident and its counsel, satisfactory to Trident and its counsel. Any
certificates signed by an officer or director of the Company or the Bank
prepared for Trident's reliance and delivered to Trident or to counsel for
Trident that specifically references the Agreement shall be deemed a
representation and warranty by the Company and the Bank to Trident as to the
statements made therein. If any condition to Trident's obligations hereunder to
be fulfilled prior to or at the Closing Date is not so fulfilled, Trident may
terminate this Agreement or, if Trident so elects, may waive in writing any such
conditions which have not been fulfilled, or may extend the time of their
fulfillment.
8. Indemnification.
(a) The Company and the Bank jointly and severally agree to indemnify
and hold harmless Trident, its officers, directors and employees and each
person, if any, who controls Trident within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act:
(i) Against any and all loss, liability, claim, damage and
expense whatsoever and shall further promptly reimburse such
persons for any legal or other expenses reasonably incurred by
each or any of them in investigating, preparing to defend or
defending against any action, proceeding or claim (whether
commenced or threatened) (A) arising out of or based upon any
breach of any representation or warranty of the Company or the
Bank contained in this Agreement, (B) arising out of or based
upon the failure of the Company or the Bank to fulfill any
covenant or obligation set forth in this Agreement, (C)
arising out of or based upon any untrue or alleged untrue
statement of a material fact or the omission or alleged
omission of a material fact required to be stated or necessary
to make the statements, in light of the circumstances under
which they were made, not misleading in (i) the Registration
Statement or the Prospectus or (ii) any application (including
the Form AC) or other document or communication (in this
Section 8 collectively called
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Page 24
"Application") prepared or executed by or on behalf of the
Company or the Bank and based upon written information
furnished by or on behalf of the Company or the Bank, filed in
any jurisdiction to register or qualify the Shares under the
securities laws thereof or filed with the OTS or Commission
with respect to the offering of the Shares, unless such
statement or omission was made in reliance upon and in
conformity with information furnished in writing to the
Company or the Bank with respect to Trident by or on behalf of
Trident expressly for use in the Prospectus or any amendment
or supplement thereof or in any Application, as the case may
be, or (D) arising out of or based upon the engagement of
Trident under this Agreement. In no event, however, shall the
Company and the Bank be liable to Trident under this Section
8(a) if the loss, liability, claim, damage or expense is found
in a final judgment by a court of competent jurisdiction (not
subject to further appeal) to have principally and directly
resulted from Trident's gross negligence or willful
misconduct. This indemnity shall be in addition to any
liability that the Company or the Bank may otherwise have to
Trident;
(ii) Against any and all loss, liability, claim, damage and
expense whatsoever to the extent that the aggregate amount
paid in settlement of any litigation, investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any untrue
statement or omission referred to in subsection (i) of this
Section 8(a), or any alleged untrue statement or omission
referenced in such subsection, if such settlement is effected
with the prior written consent of the Company and the Bank;
and
(iii) Against any and all loss, liability, claim, damage and
expense whatsoever arising out or based upon (A) any
Allocation Instructions (as defined in Section 5(p) hereof) or
(B) any records of Eligible Account Holders, Supplemental
Eligible Account Holders and Other Members (as those terms are
defined in the Plan) delivered to Trident by the Bank or its
agents for use during the Conversion.
(b) Trident agrees to indemnify and hold harmless the Company and the
Bank, their respective officers, directors and employees and each person, if
any, who controls the Company and the Bank within the meaning of Section 15 of
the Securities Act or Section 20(a) of the Exchange Act, to the same extent as
the foregoing indemnity from the Company and the Bank to Trident, but only with
respect to (A) statements or omissions, if any, made in the Prospectus or any
amendment or supplement thereof, in any Application or to a purchaser of the
Shares in reliance upon, and in conformity with, information furnished in
writing to the Company or the Bank with respect to Trident by or on behalf of
Trident expressly for use in the Prospectus or any amendment or supplement
thereof or in any Application, (B) any breach of any representation or warranty
by Trident contained in this Agreement, or (C) any liability of the Company or
the Bank
Trident Securities
Page 25
found in a final judgment by a court of competent jurisdiction (not subject to
further appeal) to have principally and directly resulted from gross negligence
or willful misconduct of Trident. This indemnity shall be in addition to any
liability that Trident may have to the Company or the Bank otherwise.
(c) Promptly after receipt by an indemnified party under this Section 8
of notice of any action, proceeding or claim (whether commenced or threatened),
such indemnified party will, if a claim in respect thereof is to be made against
the indemnifying party under this Section 8, notify the indemnifying party of
such action, proceeding or claim; but the omission so as to notify the
indemnifying party will not relieve it from any liability which it may have to
any indemnified party otherwise than under this Section 8. In case any such
action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party, and after notice
from the indemnifying party to such indemnified party of its election so as to
assume the defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than the reasonable cost of investigation except as otherwise
provided herein. In the event the indemnifying party elects to assume the
defense of any such action and retain counsel acceptable to the indemnified
party, the indemnified party may retain additional counsel, but shall bear the
fees and expenses of such counsel unless (i) the indemnifying party shall have
specifically authorized the indemnified party to retain such counsel or (ii) the
parties to such suit include such indemnifying party and the indemnified party,
and such indemnified party shall have been advised by counsel that one or more
material legal defenses may be available to the indemnified party which may not
be available to the indemnifying party, in which case the indemnifying party
shall not be entitled to assume the defense of such suit notwithstanding the
indemnifying party's obligation to bear the fees and expenses of such counsel.
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 all indemnified parties in connection with any one action,
proceeding, claim or suit or separate but similar or related actions,
proceedings or claims in the same jurisdiction arising out of the same general
allegations or circumstances. An indemnifying party against whom indemnity may
be sought shall not be liable to indemnify an indemnified party under this
Section 8 if any settlement of any such action is effected without such
indemnifying party's consent.
(d) To the extent applicable, this Section 8 is subject to and limited
by public policy and the provisions of applicable law, including but not limited
to, Sections 23A and 23B.
9. Contribution. (a) In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 8 above is for any reason
Trident Securities
Page 26
held to be unavailable to Trident, the Company and/or the Bank other than in
accordance with its terms, the Company and the Bank or Trident shall contribute
to the aggregate losses, liabilities, claims, damages, and expenses of the
nature contemplated by said indemnity agreement incurred by the Company and the
Bank or Trident (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Bank, on the one hand, and Trident, on
the other, from the offering of the Shares or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above, but also the relative fault of the Company or the Bank, on the one hand,
and Trident, on the other, in connection with the statements or omissions which
resulted in such losses, claims, damages, liabilities or judgments, as well as
any other relevant equitable considerations. The relative benefits received by
the Company and the Bank, on the one hand, and Trident, on the other, shall be
deemed to be in the same proportion as the total net proceeds from the
Conversion received by the Company and the Bank bear to the total fees received
by Trident under this Agreement. The relative fault of the Company or the Bank,
on the one hand, and Trident, on the other, shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Bank or by Trident and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(b) The Company and the Bank and Trident agree that it would not be
just and equitable if contribution pursuant to this Section 9 were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by the indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 9, Trident shall not be required
to contribute any amount in excess of the amount by which fees owed Trident
pursuant to this Agreement exceeds the amount of any damages which Trident has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who is not guilty of such
fraudulent misrepresentation.
(c) To the extent applicable, this Section 9 is subject to and limited
by public policy and the provisions of applicable law, including but not limited
to Sections 23A and 23B.
10. Survival of Agreements, Representations and Warranties, and
Indemnities. The respective indemnities of the Company and the Bank and Trident
and the representation and
Trident Securities
Page 27
warranties of the Company and the Bank and of Trident set forth in or made
pursuant to this Agreement shall remain in full force and effect, regardless of
any termination or cancellation of this Agreement or any investigation made by
or on behalf of Trident or the Company or the Bank or any controlling person or
indemnified party referred to in Section 8 hereof, and shall survive any
termination or consummation of this Agreement and/or the issuance of the Shares,
and any legal representative of Trident, the Company, the Bank and any such
controlling persons shall be entitled to the benefit of the respective
agreements, indemnities, warranties and representations.
11. Termination. Trident may terminate this Agreement by giving the
notice indicated below in this Section at any time after this Agreement becomes
effective as follows:
(a) If any domestic or international event or act or occurrence has
materially disrupted the United States securities markets such as to make it, in
Trident's reasonable opinion, impracticable to proceed with the offering of the
Shares; or if trading on the New York Stock Exchange shall have been suspended;
or if the United States shall have become involved in a war or major
hostilities; or if a general banking moratorium has been declared by a state or
federal authority which has a material adverse effect on the Bank or the
Conversion; or if a moratorium in foreign exchange trading by major
international banks or persons has been declared; or if there shall have been a
material adverse change in the capitalization, condition or business of the
Company and the Bank, taken as a whole, or if the Bank shall have sustained a
material or substantial loss by fire, flood, accident, hurricane, earthquake,
theft, sabotage or other calamity or malicious act, whether or not said loss
shall have been insured; or if there shall have been a material change in the
condition or prospects of the Company and the Bank, taken as a whole.
(b) Any party hereto may terminate this Agreement by giving notice
pursuant to Section 12 hereof of a material breach of this Agreement by the
other party at any time after this Agreement becomes effective.
(c) If this Agreement is terminated as provided in this Section 11, the
party terminating this Agreement shall notify the non-terminating party promptly
by telephone or telegram, confirmed by letter.
(d) If this Agreement is terminated by Trident for any of the reasons
set forth in subsection (a) above, the Company and the Bank shall pay Trident
the full amount, if any, payable pursuant to Sections 3(c), 3(d), 6, 8(a) and 9
of this Agreement.
(e) The Bank may terminate the Conversion in accordance with the terms
of the Plan. Such termination shall be without liability to any party, except
that the Company and the Bank shall be required to fulfill their obligations
pursuant to Sections 3(c), 3(d), 6, 8(a) and 9 of this Agreement.
Trident Securities
Page 28
12. Notices. All communications hereunder, except as herein otherwise
specifically provided, shall be in writing and if sent to Trident shall be
mailed, delivered or telegraphed and confirmed to Trident Securities, 4601 Six
Forks Road, Suite 400, Raleigh, North Carolina 27609, Attention: Mr. R. Lee
Burrows, Jr. (with a copy to Luse Lehman Gorman Pomerenk & Schick, P.C., 5335
Wisconsin Avenue, N.W., Suite 400, Washington, D.C. 20015, Attention: Alan
Schick, Esquire) and if sent to the Company or the Bank, shall be mailed,
delivered or telegraphed and confirmed to Florida Parishes Bank, 300 West Morris
Street, Hammond, Louisiana, 70403, Attention: Fritz W. Anderson, II (with a copy
to Elias, Matz, Tiernan & Herrick L.L.P., 734 15th Street, N.W., 12th Floor,
Washington, D.C. 20005, Attention: Gerald F. Heupel, Jr., Esquire).
13. Parties. This Agreement shall inure solely to the benefit of, and
shall be binding upon, Trident, the Company, the Bank and the controlling and
other persons referred to in Section 8 hereof, and their respective successors,
legal representatives and assigns, and no other person shall have or be
construed to have any legal or equitable right, remedy or claim under or in
respect of or by virtue of this Agreement or any provision herein contained.
14. Partial Invalidity. In the event that any term, provision or
covenant of this Agreement or the application thereof to any circumstance or
situation shall be invalid or unenforceable, in whole or in part, the remainder
of this Agreement and the application of such term, provision or covenant to any
other circumstance or situation shall not be affected thereby, and each term,
provision or covenant of this Agreement shall be valid and enforceable to the
full extent permitted by law. If, however, any term, provision or covenant of
this Agreement is declared invalid as unenforceable by a court of competent
jurisdiction, then the parties hereto shall in good faith amend this agreement
to include an alternative provision that accomplishes a similar result.
15. Construction. Unless preempted by federal law, this Agreement shall
be governed by and construed in accordance with the substantive laws of North
Carolina.
16. Counterparts. This Agreement may be executed in separate
counterparts, each of which when so executed and delivered shall be an original,
but all of which together shall constitute but one and the same instrument.
17. Amendment. This Agreement may be amended only by a subsequent
writing signed by all parties hereto.
* * *
[signature page follows]
Trident Securities
Page 29
Please acknowledge your agreement to the foregoing by signing below and
returning to the Company one copy of this letter.
FPB FINANCIAL CORP.
By: _______________________________________
Fritz W. Anderson, II
President and Chief Executive Officer
FLORIDA PARISHES BANK
By: _______________________________________
Fritz W. Anderson, II
President and Chief Executive Officer
Agreed to and accepted as of the date first written above:
TRIDENT SECURITIES
By: ____________________________
Name: R. Lee Burrows, Jr.
Title: Managing Director