SFSB HOLDING COMPANY
(a Pennsylvania corporation)
727,375 Shares (Maximum, as adjusted)
Common Stock
(Par Value $0.10 Per Share)
AGENCY AGREEMENT
----------------
, 1998
-----------------
▇▇▇▇, ▇▇▇▇ & Co., Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Dear Sirs:
SFSB Holding Company, a Pennsylvania corporation (the "Company") and ▇▇▇▇▇▇▇
Federal Savings Bank, a federally chartered mutual savings bank (the "Bank"),
hereby confirm their agreement with ▇▇▇▇, ▇▇▇▇ & Co., Inc. ("▇▇▇▇, ▇▇▇▇" or the
"Agent" or "you"), as follows:
Introductory. The Bank is in the process of converting from a federally
chartered savings bank in the mutual form to a federally chartered savings bank
in stock form in accordance with the provisions of the Home Owners' Loan Act, as
amended (the "HOLA"), and the rules and regulations of the Office of Thrift
Supervision ("OTS") which have been or which may be promulgated thereunder by
the OTS, such statute, rules and regulations being collectively referred to as
the "Conversion Regulations." An Application for Approval of Conversion has been
filed with the OTS (the "Conversion Application") and all amendments required to
the date hereof have also been filed. The Conversion Application includes, among
other things, the Bank's plan of conversion (the "Plan") and the Bank's proxy
statement for the Special Meeting of Members, to be held on __________, 1998
("Proxy Statement"). Prior to the date hereof, the Plan has been approved by the
Board of Directors (hereinafter referred to as "Directors") of the Bank and by
the OTS. Pursuant to the Plan, the Bank will convert from a federally chartered
mutual savings bank to a federally chartered stock savings bank; the Company has
filed an application (the "Holding Company Application") with the OTS to become
a registered savings and loan holding company under HOLA; all the issued and
outstanding stock of the Bank will be sold to the Company, and the Company will
issue and sell its Common Stock (as defined below) in a Subscription Offering
and, if necessary, in a Community Offering or Public Offering as selected by the
Company, all of which are described below and in the Plan. Collectively, these
transactions are referred to herein as the "Conversion." Collectively, the
Subscription Offering, the Community Offering, and the
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Public Offering are herein referred to as the "Offerings"; and the term
"Offering" shall mean any of the Offerings individually.
Upon consummation of the Conversion, the Company will have authorized
capital of 5,000,000 shares of capital stock, of which 4,000,000 shares shall be
common stock, $0.10 par value per share (the "Common Stock") and 1,000,000
shares shall be preferred stock of $0.10 par value. The Company, in accordance
with the Plan, is offering, in a subscription offering by way of nontransferable
subscription rights, shares of Common Stock, in order of priority, to depositors
of the Bank with account balances of $50.00 or more as of December 31, 1995
("Eligible Account Holders"), the Bank's Employee Stock Ownership Plan, a
taxqualified employee benefit plan (the "ESOP"), depositors of the Bank with
account balances of $50.00 or more as of September 30, 1997 ("Supplemental
Eligible Account Holders"), and depositors other than Eligible Account Holders
and Supplemental Eligible Account Holders as of the Voting Record Date and
borrowers of the Bank with loans outstanding as of April 1, 1996 and continue
outstanding as of the Voting Record Date ("Other Members"). Concurrently, and
subject to the prior rights of holders of subscription rights, the Company may
offer Common Stock for sale in a community offering to the general public, with
preference given to natural persons who reside in Allegheny County, Pennsylvania
or to selected persons in a best efforts public offering through ▇▇▇▇, ▇▇▇▇
("Other Subscribers"). With the exception of the ESOP, which intends to purchase
up to 8% of the total number of shares of Common Stock issued in the Conversion,
no person may purchase more than 7,500 shares of the Common Stock offered in the
Conversion; and no person, together with associates of and persons acting in
concert with such person, may purchase more than 12,500 shares of the Common
Stock offered in the Conversion; provided, however that the maximum overall
purchase limitation may be increased or decreased and the amount permitted to be
subscribed for may be increased or decreased in the sole discretion of the
Company. It is acknowledged that the Company in its sole discretion may accept
or reject, in whole or in part, any orders to purchase shares of the Common
Stock received in the Community Offering or in the Public Offering.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form SB-2 (File No. 333-_____) (the
"Registration Statement") containing a Prospectus relating to the Offerings for
the registration of the Common Stock under the Securities Act of 1933, as
amended (the "1933 Act"), and has filed such amendments thereto 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
becomes effective is hereinafter called the "Prospectus", except that if the
Prospectus filed by the Company pursuant to Rule 424 (b) of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations")
differs from the prospectus on file at the time the Registration Statement
becomes effective, the term "Prospectus" shall
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refer to the prospectus filed pursuant to Rule 424(b) from and after the time
said prospectus is filed with the Commission.
SECTION 1. Appointment of Agent; Compensation to the Agent. Subject to
the terms and conditions herein set forth, the Bank and the Company hereby
appoint the Agent as its agent to consult with and advise the Bank and the
Company, to solicit subscriptions and purchase orders for Common Stock on behalf
of the Bank and the Company, in connection with the Company's offering of Common
Stock in the Subscription Offering and Community Offering and at the request of
the Company to manage a best efforts Public Offering of the Common Stock in such
amount of shares of the Common Stock as the Company may request, provided that
in no event will the shares of Common Stock offerred in all Offerings exceed an
aggregate of 727,375. On the basis of the representations, warranties and
agreements herein contained, and subject to the terms and conditions herein set
forth, ▇▇▇▇, ▇▇▇▇ accepts such appointment and agrees to consult with and advise
the Bank and the Company as to the matters set forth in Section 3 of the
Engagement Letter between the Agent and the Bank dated October 3, 1997, included
as Exhibit A attached hereto, and to use its best efforts to solicit
subscriptions and purchase orders for Common Stock in accordance with this
Agreement; provided, however, that the Agent shall not be responsible for
obtaining subscriptions or purchase orders for any specific number of shares of
Common Stock, 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 appointment of the Agent hereunder shall terminate upon termination
of the Offerings and satisfaction of the obligations of the Bank and the Company
pursuant to this Agreement.
Subject to the prior approval of the Company and the Bank, ▇▇▇▇, ▇▇▇▇
may also assemble and manage a selling group of broker dealers ("Selling Group")
which are members of the National Association of Securities Dealers, Inc.
("NASD") to participate in the solicitation of purchase orders for shares of
Common Stock in the Public Offering under a selected dealers' agreement (the
"Selected Dealers' Agreement"), the form of which is set forth as Exhibit B to
this Agreement.
In addition to the reimbursement of the expenses specified in Sections
6, 7 and 8 hereof, the Agent will receive an advisory, management and marketing
fee of $100,000 ("Advisory and Marketing Fee") for the sale of the Common Stock
sold in the Subscription and Community Offerings. Should the Company elect to
conduct a Public Offering, a selling group of NASD member firms (which may
include ▇▇▇▇, ▇▇▇▇) under a Selected Dealers' Agreement (the "Selling Group")
may be implemented, and the Bank shall pay a fee to ▇▇▇▇, ▇▇▇▇ for each share
sold by it or selected dealers in a Public Offering (collectively, "Selected
Dealers' Fee") of five and one-half percent (5.5%) in the aggregate. ▇▇▇▇, ▇▇▇▇
shall be
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responsible for paying any appropriate fees to a selected dealer for any shares
of Common Stock sold by such a selected dealer in the Public Offering. The
Advisory and Marketing Fee and the Selected Dealers' Fee are hereinafter
collectively referred to as the "Sales Compensation." No Selected Dealers' Fee
shall be payable pursuant to this section in connection with the sale of Common
Stock to officers, directors, employees (and members of the immediate family
thereof), and employee benefit plans of the Company and the Bank. It is
acknowledged that the Bank paid the Agent $12,500 of the Advisory and Marketing
Fee upon execution of the Engagement Letter. ▇▇▇▇, ▇▇▇▇ will not commence sales
of shares of Common Stock through members of the Selling Group without prior
approval of the Bank.
If the Conversion is not consummated by September 30, 1998, due to
conditions beyond the control of the Agent, or if the Agent terminates this
Agreement in accordance with Section 10 hereof, the Agent shall receive, in
addition to the Agent's reasonable out of pocket expenses as defined in Section
6 hereof, an advisory and administrative services fee of $25,000 in
consideration of its advisory and administrative services in lieu of the Sales
Compensation. If there is necessitated a resolicitation of subscriptions and
purchase orders, the Company, the Bank and the Agent agree to negotiate in good
faith an agreement to cover the Agent's further fees and expenses in connection
therewith.
The compensation specified above shall be payable (to the extent not
already paid) to the Agent on the earlier of the Closing Date (as hereinafter
defined), or a determination by the Company and the Bank to terminate or abandon
the Plan. The Bank and the Company agree to reimburse the Agent for the costs
and expenses specified in Sections 6, 7 and 8 hereof, to the extent such costs
and expenses are reasonably incurred by the Agent, promptly upon receiving a
reasonable accounting of such costs and expenses.
SECTION 2. Closing Date; Release of Funds and Deliverv of Certificates.
If all conditions precedent to the consummation of the Conversion, including,
without limitation, the sale of all Common Stock required by the Plan to be
sold, are satisfied, the Company agrees to issue or have issued the Common Stock
sold in the Offerings and to release for delivery certificates for Common Stock
on the Closing Date (as hereinafter defined) against payment therefor by release
of funds from the special interest bearing account referred to in Section 5(r)
hereof and by the authorized withdrawal of funds from deposit accounts of
Eligible Account Holders, Supplemental Eligible Account Holders and Other
Members in accordance with the Plan; provided, however, that no such funds shall
be released to the Company or withdrawn until the conditions specified in
Section 9 hereof shall have been complied with to the reasonable satisfaction of
the Agent and its counsel. Such release, withdrawal and payment shall be made at
the Closing Date of the Offerings, on a business day and at a place selected by
the Agent, which date and place are acceptable to the Bank and the Company, on
at least two business days prior notice to the Bank and Company (it being
understood that such business day shall not be more than ten business days after
completion of the Offerings or the
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solicitation of purchase orders for shares under the Selected Dealers' Agreement
unless an amendment to the Registration Statement is required or the Conversion
appraisal update has not been approved by the OTS), or such-other time or place
as shall be agreed upon by the Agent, the Bank and the Company. Certificates for
Common Stock shall be delivered directly to the purchasers thereof or in
accordance with their directions. The hour and date upon which the Company shall
release or deliver the Common Stock sold in the Offerings, in accordance with
the terms hereof, are herein called the "Closing Date."
SECTION 3. Prospectus: The Offerings. The Common Stock is to be offered
in the Offerings at $10.00 per share, as set forth on the cover page of the
Prospectus. The number of shares offered may be changed by the Company after
consultation with the Agent. -------------------------
SECTION 4. Representations and Warranties. The Company and the Bank
jointly and severally represent and warrant to the Agent as follows.
(a) The Registration Statement was declared effective by the Commission
on _______________, 199_. At the time the Registration Statement, including the
Prospectus contained therein, 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, any final Prospectus, any
Blue Sky Application or any Sales Document (as such terms are defined previously
herein or in Section 7 hereof) authorized by the Company or the Bank for use in
connection with the Offerings (and only with respect to information provided by
or approved by the Company and the Bank) 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) Prospectus
was filed with the Commission and at the Closing Date referred to in Section 2,
the Registration Statement, any preliminary or final Prospectus, any Blue Sky
Application or any Sales Information (as such terms are defined previously
herein or in Section 7 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 in or omissions from such
Registration Statement, Prospectus or Sales Information made in reliance upon
and in conformity with information furnished in writing to the Company or the
Bank by the Agent expressly regarding the Agent for use under the captions
"Market for the Common Stock" and "The Conversion - Marketing Arrangements."
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(b) The Bank has filed with the OTS the Conversion Application,
including the Prospectus, exhibits, and an amendment or amendments thereto, as
required, which was approved by the OTS; the Proxy Statement of the Bank, to be
dated as of _______________, 199_, has been approved by-the OTS; and the Plan
has been adopted by both the Board of Directors of the Company and the Board of
Directors of the Bank.
(c) The Company has filed with the OTS the Holding Company Application,
which was approved by the OTS and, to the best knowledge of the Company and the
Bank, no order has been received by or is pending before the OTS to prevent,
suspend or revoke any approval thereof.
(d) At the Closing Date, the Company and the Bank will have completed
all conditions precedent to the Conversion and the offer and sale of the Common
Stock in accordance with the Plan, the Conversion Regulations and all other
applicable material laws, regulations, decisions and orders, including all
terms, conditions, requirements and provisions precedent to the Conversion
imposed upon the Company or the Bank by the Commission and the OTS or any other
regulatory authority.
(e) No order has been issued by the Commission, the OTS, the Federal
Deposit Insurance Corporation (the "FDIC"), or any State regulatory or Blue Sky
authority 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 Bank
or the Company, pending or threatened.
(f) At the date hereof, to the best knowledge of the Company and the
Bank, no person has sought to obtain review of the final action of the OTS in
approving the Plan of Conversion or Holding Company Application.
(g) At the time of the approval of the Conversion Application by the
OTS (including any amendment or supplement thereto) and at all times subsequent
thereto until the Closing Date, the Conversion Application complied in all
material respects with the Conversion Regulations. The Prospectus contained in
the Conversion Application (including any amendments or supplements thereto)
complied in all material respects with the Conversion Regulations at the time of
the approval of the Conversion Application by the OTS and the Prospectus
contained in the Conversion Application will comply in all material respects
with such rules and regulations from such time until the Closing Date.
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(h) FinPro, Inc. ("FinPro"), which prepared the Conversion appraisal
dated as of _______________, 1997, described in the Prospectus, is independent
with respect to the Company and the Bank within the meaning of the Conversion
Regulations, is believed by the Company and the Bank to be experienced and
expert in rendering corporate appraisals of thrift institutions and the Bank
believes that FinPro has prepared the pricing information set forth in the
Prospectus in accordance with the requirements of the Conversion Regulations.
(i) La France, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ("La France"), the firm which
certified the financial statements filed as part of the Registration Statement
is, with respect to the Company and the Bank, an independent certified public
accountant as required by the 1933 Act and the 1933 Act Regulations.
(j) The financial statements included in the Registration Statement and
which are part of the Prospectus present fairly the financial condition, results
of operations, retained earnings and changes in financial position and statement
of cash flows of the Bank, at and for the dates indicated and the periods
specified and comply as to form in all material respects with the applicable
accounting requirements of the Conversion Regulations and generally accepted
accounting principles. Said financial statements are consistent with financial
statements and other reports filed by the Bank with the OTS and the FDIC except
that accounting principles employed in such brings (not including the
Registration Statement) conform to 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 financial statements of the Bank included in the Prospectus,
and as to the pro-forma adjustments, the adjustments made therein have been
properly applied on the basis I described therein.
(k) Since the respective dates as of which information is given in the
Registration Statement and Prospectus, except as may otherwise be stated
therein: (i) there has not been any material adverse change in the financial
condition of the Company or the Bank or of the Company and the Bank considered
as one enterprise, or in the results of operations or business of the 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, nor has
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 or the Bank, except
those transactions entered into in the ordinary course of business and those
specifically contemplated by the Prospectus, including the execution of loan
documents pertaining to the ESOP, and (iv) the capitalization, liabilities,
assets,
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properties and business of the Company and the Bank conform in all material
respects to the descriptions thereof contained in the Prospectus. To the best
knowledge of the Company and the Bank, neither the Company nor the Bank has any
material liability of any kind, contingent or otherwise, except as set forth in
the Prospectus.
(1) The Bank is now a federally chartered savings bank in mutual form
of organization and upon the Conversion will become a federally chartered
savings bank in capital stock form of organization, in both instances duly
authorized to conduct its business and own its property as described in the
Registration Statement; the Company and the Bank have obtained all material
licenses, permits and other governmental authorizations, currently required for
the conduct of their respective businesses; all such licenses, permits and the
governmental authorizations are in full force and effect; and the Company and
the Bank are in all material respects complying with all laws, rules,
regulations and orders applicable to the operation of their businesses. The Bank
does not own equity securities or any equity interest in any other business
enterprise except as described in the Prospectus. Upon completion of the sale by
the Company of the shares of Common Stock contemplated by the Prospectus, (i)
the Bank will be converted pursuant to the Plan to a federally chartered stock
savings bank, (ii) all of the issued 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, all terms, conditions,
requirements and provisions with respect to the Conversion imposed by the
Commission and the OTS, if any, will have been complied with by the 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.
(m) The deposit accounts of the Bank are insured by the Savings
Association Insurance Fund ("SAIF") as administered by the FDIC up to the
maximum amount allowed under law. Upon consummation of the Conversion, the
liquidation account for the benefit of Eligible Account Holders and Supplemental
Eligible Account Holders ("Liquidation Account") will be duly established in
accordance with the requirements of the Conversion Regulations.
(n) Upon consummation of the Conversion, the authorized, issued and
outstanding equity capital of the Company will be as set forth in the
Registration Statement under the caption "Capitalization," and no shares of
Common Stock have been or will be issued and outstanding prior to the Closing
Date referred to in Section 2, except as to the issuance by the Company of
shares of Common Stock, if any, for the purpose of the Company's initial
capitalization and conducting organizational business,
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which shares of Common Stock shall be cancelled on the Closing Date; the shares
of Common Stock issued in the Conversion 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 and fully paid and
non-assessable; the issuance of the Common Stock will not violate any preemptive
rights; and the terms and provisions of the Common Stock 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 and the Bank,
upon the issuance of the Common Stock, good title to the Common Stock 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.
(o) The Company has been duly incorporated and is validly existing as
a| corporation in good standing under the laws of the Commonwealth of
Pennsylvania 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 not required to qualify as a
foreign corporation in any jurisdiction where it has not so qualified.
(p) As of the date hereof and as of the Closing Date, neither the
Company nor the Bank is in violation of its articles of incorporation, charter
or bylaws (and the Bank will not be in violation of its charter or bylaws in
capital stock form upon consummation of the Conversion); 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 ally necessary corporate action on the part of the Company and the
Bank and this Agreement has been validly executed and delivered by the Company
and the Bank and is the valid, legal and binding Agreement of the Company and
the Bank enforceable in accordance with its terms, except to the extent that
rights to indemnity hereunder may be limited under applicable law and subject to
bankruptcy, insolvency, reorganization or other laws relating to or affecting
the enforcement of creditors' rights generally and equitable principles limiting
the right to obtain specific enforcement or similar equitable relief. The
consummation of the transactions herein contemplated will not (i) conflict with
or constitute a breach of, or default under, the articles of incorporation,
charter or bylaws of the Company or the Bank (in either mutual or capital stock
form), or any material contract, lease or other instrument to which the Company
or the Bank is a party or in which the Company or the Bank has a beneficial
interest, or any applicable law, rule, regulation or order to which the Company
or the Bank is subject; (ii) violate any authorization, approval, judgment,
decree, order, statute, rule or regulation applicable to the Company or the
Bank; or (iii) with the exception of the Liquidation Account
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established in the Conversion, result in the creation of any lien, charge or
encumbrance upon any property of the Company or the Bank.
(q) The 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 the capital stock of the Bank and the Common Stock as provided in the Plan
and as described in the Prospectus, subject to the final approval of the OTS and
to the satisfaction of the conditions of the OTS approval of the Conversion.
(r) The Company and the Bank have good and marketable title to all
properties and assets which are material to the business of the Company and the
Bank on a consolidated basis and to those properties and assets described in the
Registration Statement and the Prospectus as owned by them, free and clear of
all liens, except such liens as are described in the Prospectus or are not
materially significant or important in relation to the business of the Company
and the Bank on a consolidated basis; and all of the leases and subleases
material to the business of the Company and the Bank on a consolidated basis
under which the Company or the Bank hold properties, including those described
in the Prospectus, are in full force and effect.
(s) The Company and the Bank are not in violation of any directive from
the Commission, the OTS, the FDIC, or any other agency to make any material
change in the method of conducting their respective 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 Commission, the FDIC and the OTS) and there is no suit or proceeding,
charge, investigation or action before or by any court, regulatory authority or
governmental agency or body, pending or, to the knowledge of the Company or 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 Prospectus or which might
result in any material adverse change in the financial condition, results of
operations or business of the Company and the Bank taken as a whole or which
would materially affect their properties and assets.
(t) As of the Closing Date, the Bank and the Company shall have
conducted the Conversion in all material respects in accordance with the Plan,
and the Conversion Regulations and in the manner described in the Prospectus.
(u) The Bank has received an opinion of its special counsel, ▇▇▇▇▇▇▇,
Spidi, Sloane & ▇▇▇▇▇, P.C., with respect to the federal income tax consequences
of the Conversion and an opinion of [La France] with respect to the Pennsylvania
income tax
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consequences of the Conversion. The facts and representations upon which such
opinions are based are truthful accurate and complete, and neither the Bank nor
the Company will take any action inconsistent therewith.
(v) 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 or
the Bank in the due performance and observance of any 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 or the Bank
is a party or by which any of them or any of their property is bound or affected
in any respect which, in any such case, is material to the Company and the Bank;
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 or the Bank,
threatened any action or proceeding wherein the Company or the Bank would or
might be alleged to be in default thereunder.
(w) Subsequent to the date the Registration Statement is declared
effective by the Commission and prior to the Closing Date, except as otherwise
may be indicated or contemplated therein, neither the Company nor the Bank will
have issued any securities or incurred any liability or obligation, direct or
contingent, for borrowed money, except borrowings from the same or similar
sources indicated in the Prospectus in the ordinary course of its business. For
purposes of this Section 4(x), obligations for borrowed money do not include
deposits.
(x) The Company and the Bank have filed all federal, state and local
tax returns required to be filed and have made timely payments of all taxes due
and payable in respect of such returns and no deficiency has been asserted with
respect thereto by any taxing authority.
(y) To the best knowledge of the Company and the Bank, none of the
Company, the Bank or employees of the Bank has made any payment of funds of the
Company or the Bank as a loan for the purchase of the Common Stock or made any
other payment of funds prohibited by law, and no funds have been set aside to be
used for any payment prohibited by law except as disclosed in the Prospectus
with respect to the ESOP.
(z) Prior to the Conversion, the Bank was not authorized to issue
shares of capital stock; neither the Bank nor the Company has: (i) issued any
securities within the last 18 months (except for notes to evidence other bank
loans and reverse repurchase agreements); (ii) had any material dealings within
the 12 months prior to _______________, 1998 with any member of the NASD, or any
person related to or associated with such member, other than discussions and
meetings relating to the
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Conversion and routine purchases and sales of U.S. government securities; (iii)
entered into a financial or management consulting agreement except as
contemplated hereunder; and (iv) engaged any intermediary between the Agent and
the Company or the Bank in connection with the offering of Common Stock, and no
person is being compensated in any manner for such service.
(aa) Neither the Company nor the Bank is required to be registered
under the Investment Company Act of 1940, as amended.
(bb) Except for information provided in writing to the Company or Bank
by the Agent for use in the Prospectus, the Company and the Bank have not relied
upon the Agent or its legal or other advisors for any legal, tax or accounting
advice in connection with the Conversion.
(cc) To the best knowledge of the Company and the Bank, each of them is
in compliance in all material respects with all laws, rules and regulations
relating to environmental protection except where such failure would not have a
material adverse effect on the financial condition of the Company and the Bank
taken as a whole, and neither the Company nor the Bank has been notified or is
otherwise aware that either of them is potentially liable, or is considered
potentially liable, under the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended, or any similar state law. No action,
suits, regulatory investigations or other proceedings are pending, or, to the
best knowledge of the Company and the Bank, threatened against the Company or
the Bank relating to environmental protection, nor does the Company or the Bank
have any reason to believe any such proceedings may be brought against either of
them. To the best knowledge of the Company and the Bank, no disposal, release or
discharge of hazardous or toxic substances, pollutants or contaminants,
including petroleum and gas products, as any of such terms may be defined under
federal, state or local law, has occurred on, in, at or about any of the
facilities or properties of the Company or the Bank.
(dd) No labor dispute with the employees of the Company or the Bank
exists or, to the knowledge of the Company or the Bank, is imminent.
(ee) All of the loans represented as assets on the most recent
financial statements or selected financial information of the Bank included in
the Prospectus meet or are exempt from all requirements of federal, state and
local law pertaining to lending, including, without limitation' truth in lending
(including the requirements of Regulations Z and 12 C.F.R. Part 226), real
estate settlement procedures, consumer credit protection, equal credit
opportunity and all disclosure laws applicable to such loans, except for
violations which, if asserted, would not result in a material adverse
▇▇▇▇, ▇▇▇▇ & Co., Inc.
________________, 1998
Page 13
effect on the financial condition, results of operations or business of the
Company and the Bank taken as a whole. Any certificate signed by an officer of
the Bank or of the Company and delivered to the Agent or its counsel that refers
to this Agreement shall be deemed to be a representation and warranty by the
Bank or the Company 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. Covenants of the Company and Bank. The Company and the Bank
hereby jointly and severally covenant with you as follows.
(a) The Company has filed the Registration Statement with the
Commission. The Company will not, at any time before the Registration Statement
is declared effective by the Commission, file any amendment to such Registration
Statement without providing you and your counsel an opportunity to review such
amendment and to reasonably object in writing. 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 you and
your counsel an opportunity to review such amendment or to which amendment you
or your counsel shall reasonably object.
(b) The Company and the Bank will use their best efforts to cause the
Registration Statement to be declared effective by the Commission and the
Conversion Application to be approved by the OTS and will immediately upon
receipt of any information concerning the events listed below notify you: (i)
when the Registration Statement has become effective; (ii) of the receipt of any
comments from the Commission, the OTS, or any other governmental entity with
respect to the Conversion or the transactions contemplated by this Agreement;
(iii) of the request by the Commission, the OTS, or any other governmental
entity for any amendment or supplement to the Registration Statement or for
additional information; (iv) of the issuance by the Commission, the OTS, or any
other governmental entity of any order or other action suspending the
effectiveness of the Registration Statement or the approval of the Conversion
Application or the use of the Registration Statement or the Prospectus or any
other filing of the Company and the Bank under the Conversion Regulations, the
1933 Act, 1933 Act Regulations or other applicable law, or the threat of any
such action; (v) the issuance by the Commission, the OTS, or any other state
authority of any stop order suspending the effectiveness of the Registration
Statement or the Conversion Application or of the initiation or threat of
initiation or threat of any proceedings for such purposes; or (vi) of the
occurrence of any event mentioned in paragraph (g) below.
The Company and the Bank will make every reasonable effort to prevent the
issuance by the Commission, the OTS, or any other state authority of any
▇▇▇▇, ▇▇▇▇ & Co., Inc.
________________, 1998
Page 14
such order and, if any such order shall at any time be issued, to obtain the
lifting thereof at the earliest possible time.
(c) The Company will provide you with notice of its intention to file
and reasonable time to review prior to filing any amendment or supplement to the
Conversion Application, the Holding Company Application or to the Registration
Statement or the Prospectus (including a prospectus filed pursuant to Rule 424
which differs from the prospectus on file at the time the Registration Statement
and any amendments thereto become effective) and will not file any such
amendment or supplement to which you shall reasonably object or which shall be
reasonably objected to by your counsel in writing.
(d) The Company and the bank will deliver to you and to your counsel
two conformed copies of each of the following documents, with all exhibits: The
Conversion Application and the Holding Company Application, as originally filed
and of each amendment or supplement thereto, and the Registration Statement, as
originally filed and each amendment or supplement thereto.
(e) The Company and the Bank will deliver to you such number of copies
of the Prospectus, as amended or supplemented, as you may reasonably request.
The Company authorizes the Agent to use the Prospectus (as amended or
supplemented, if amended or supplemented) for any lawful manner in connection
with the sale of the Common Stock by the Agent.
(f) During the periods prior to the Closing Date, when the Prospectus
is required to be delivered and subsequent to the Closing Date, the Company and
the Bank will comply, at their own expense, with any and all terms, conditions
requirements and provisions with respect to the Conversion and the transactions
contemplated thereby imposed upon them by the Commission and the OTS, by
applicable state law or the Conversion Regulations, and by the 1933 Act, the
1933 Act Regulations, the 1934 Act and the rules and regulations of the
Commission promulgated under such statutes, including, without limitation,
Regulation M under the 1934 Act, in each case as from time to time in force, in
accordance with the provisions hereof and the Prospectus.
(g) 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 or the Bank shall occur, as a result of which it is necessary or
appropriate, in the opinion of counsel for the Company and the Bank 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 it is delivered to a
▇▇▇▇, ▇▇▇▇ & Co., Inc.
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Page 15
purchaser, the Company and the Bank will, at their expense, forthwith prepare,
file with the Commission and furnish to you 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 you and your
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 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 existing at the time the Prospectus is delivered to a purchaser,
not misleading.
(h) The Company and the Bank will take all necessary actions, in
cooperation with you, and furnish to whomever the Agent may direct such
information as may be required to qualify or register the Common Stock and sale
by the Company under the applicable securities or Blue Sky laws of such
jurisdictions as you and the Company and the Bank and its counsel may 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 Common Stock shall have been qualified or registered as above provided, the
Company will make and file such statements and reports as are or may be required
by the laws of such jurisdiction.
(i) The Company will not sell or issue, contract to sell or otherwise
dispose of, for a period of 90 days after the date hereof, without your prior
written consent, any shares of Common Stock other than the Common Stock or other
than in connection with any plan or arrangement described in the Prospectus.
(j) During the period during which the Company's Common Stock is
registered under the 1934 Act, the Company will furnish to its stockholders as
soon as practicable after the end of each fiscal year an annual report
(including a consolidated balance sheet and statements of consolidated income,
stockholders' equity or cash flow statement 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).
(k) During the period of three years from the date hereof, the Company
will furnish to you: (i) as soon as available, a copy of each report of the
Company furnished generally to stockholders of the Company or 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), a copy of each other
report of the Company mailed to its stockholders
▇▇▇▇, ▇▇▇▇ & Co., Inc.
________________, 1998
Page 16
or filed with the Commission 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 articles released by the Company or the Bank
and (u) from time to time, such other public information concerning the Company
and the Bank as you may reasonably request.
(l) The Company and the Bank will use the net proceeds from the sale of
the Common Stock substantially in the manner set forth in the Prospectus under
the caption "Use of Proceeds."
(m) Other than as permitted by the Conversion Regulations, the 1933
Act, the 1933 Act Regulations and the laws of any state in which the shares of
Common Stock are qualified for sale, neither the Company nor the Bank will
distribute any prospectus, offering circular or other offering material in
connection with the offer and sale of the Common Stock.
(n) The Company will make generally available to its security holders
as soon as practicable, but not later than 60 days after the close of the period
covered thereby, an earnings statement (in form complying with the provisions of
Rule 158 of the regulations promulgated under the ▇▇▇▇ ▇▇▇) 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.
(o) The Company will file with the Commission such reports on Form SR
as may be required pursuant to Rule 463 under the 1933 Act.
(p) The Company will promptly register the Common Stock under Section
12(g) of the 1934 Act.
(q) The Company will use its best efforts to obtain approval for and
maintain quotation of the Common Stock on the OTC Bulletin Board of the Nasdaq
Stock 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
Common Stock in the Subscription Offering and Community Offering 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 Common
Stock in the Subscription Offering and Community Offering in accordance with the
Plan as described in the Prospectus or until refunds of such funds have been
made to the persons entitled thereto in accordance with
▇▇▇▇, ▇▇▇▇ & Co., Inc.
________________, 1998
Page 17
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 SAIF (to the maximum extent allowable) and to enable the Bank to
make 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 take such actions and furnish such information as
are reasonably requested by the Agent in order for ▇▇▇▇, ▇▇▇▇ to ensure
compliance with the NASD's "Interpretation to Free Riding and Withholding."
(t) The Bank will not amend the Plan without the Agent's prior written
consent in any manner that, in the opinion of the Agent, would affect the sale
of the Common Stock or the terms of this Agreement, which approval shall not be
unreasonably withheld.
(u) The Company and the Bank will use all reasonable efforts to comply
with, or cause to be complied with, the conditions precedent to the several
obligations of the Agent specified in Section 9 hereof.
SECTION 6. Payment of Expenses. The Company and the Bank jointly and
severally agree to pay all expenses incident to the performance of the
obligations of the Company and the Bank under this Agreement, including the
following: (i) the preparation, issuance and delivery of certificates for the
Common Stock to the subscribers and purchasers in the Offerings; (ii) the fees
and disbursements of the Company's and the Bank's counsel, accountants and other
advisors; (iii) the qualification of the Common Stock under all applicable
securities or Blue Sky laws, including filing fees and the reasonable fees and
disbursements of counsel in connection therewith and in connection with the
preparation of a Blue Sky Survey; (iv) the printing and delivery to you in such
quantities as you shall reasonably request of copies of the Registration
Statement, the Prospectus and the Conversion Application and Holding Company
Application as originally filed and as amended or supplemented and all other
documents in connection with the Conversion and this Agreement; (v) the filing
fees incurred in connection with the review of the Registration Statement, the
Conversion Application, or any other application, form, or filing by the
Commission, the OTS and the NASD; (vi) the fees for listing the shares on the
OTC Bulletin Board of the Nasdaq Stock Market; (vii) the fees and expenses
relating to the appraisal; (viii) the fees and expenses relating to advertising
expenses, temporary personnel expenses, conversion center expenses, investor
meeting expenses, and other miscellaneous expenses relating to the marketing by
the Agent of the Common Stock; and (ix) the cost of printing all stock
certificates and all other documents applicable to the Conversion and the fees
and charges of any transfer agent, registrar and other agent. In the event that
the Agent incurs any of the above expenses on behalf of the Company or the Bank,
the Company or the Bank, as the case may be, shall pay or reimburse the Agent
for such
▇▇▇▇, ▇▇▇▇ & Co., Inc.
________________, 1998
Page 18
reasonable fees and expenses regardless of whether the Conversion is
successfully completed. The Agent will not incur any single expense exceeding
$2,000 pursuant to this paragraph without the prior authorization of the Company
or the Bank The Company and the Bank also shall pay or reimburse the Agent for
its legal fees not to exceed $12,500 and other out-of-pocket expenses. The
parties hereto acknowledge that such expense limitations may also be exceeded in
the event of a material delay in the offering that requires an update of
financial information contained in the Registration Statement for a period later
than September 30, 1997.
SECTION 7. Indemnification.
(a) The Bank and the Company 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 you 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, subject to the limitation in the last sentence of
paragraph (c) below), joint or several, that the Agent or any of them may suffer
or to which the Agent or any of them may become subject under all applicable
federal and state laws or otherwise, and to promptly reimburse the Agent and any
such persons upon written demand for any expenses (including reasonable 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 statements, of any material fact contained in the Conversion
Application, Holding Company Application or the Registration Statement (the
"Applications"), (or any amendment or supplement thereto), the Prospectus (or
any amendment or supplement thereto), the Proxy Statement (or any amendment or
supplement thereto), or any Blue Sky application or other instrument or document
of the Bank or based upon written information supplied by the Bank or their
representatives (including counsel) in any state or jurisdiction to register or
qualify any or all of the shares of Common Stock under the securities laws
thereof (or any amendment or supplement thereto) (collectively, the "Blue Sky
Application"), or any application or other document, advertisement, or
communication prepared, made or executed by or on behalf of the Bank with its
consent after review ("Sales Information") or based upon written information or
statements furnished or made by or on behalf of the Bank or the Company, whether
or not filed in any jurisdiction in order to qualify or register the shares of
Common Stock under the securities law thereof; (ii) arise out of, or are 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 herein, 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 any Application
(or any amendment or supplement thereto), the Prospectus (or any amendment or
supplement thereto), the Proxy Statement (or any amendment
▇▇▇▇, ▇▇▇▇ & Co., Inc.
________________, 1998
Page 19
or supplement thereto), Blue Sky Application or Sales Information or other
documentation prepared by the Bank or the Company and distributed in connection
with the Offerings; except to the extent such losses, claims, damages,
liabilities or actions arise out of or are based upon any untrue material
statements or alleged untrue material statements in, or material omission or
alleged material omission from an Application (or any amendment or supplement
thereto), the Prospectus (or any amendment or supplement thereto), the Proxy
Statement (or any amendment or supplement thereto), Blue Sky Application, or
Sales Information made in reliance upon and in conformity with information
furnished in writing to the Bank by the Agent regarding the Agent expressly for
use in the Prospectus, which the Bank and the Company acknowledge includes only
the information contained in the Prospectus under the captions "Market for
Common Stock" and "The Conversion-Marketing Arrangements"; nor shall
indemnification be required for material oral misstatements to a purchaser of
shares of Common Stock made by the Agent, which are not based upon information
provided by the Bank orally or in writing or based upon information contained in
the Application (or any amendment or supplement thereto), the Prospectus (or any
amendment or supplement thereto), the Proxy Statement (or any amendments or
supplements thereto), Blue Sky Application or any Sales Information distributed
in connection with the Conversion. In addition, neither the Company nor the Bank
will be liable under the foregoing indemnification provision to the extent that
any loss, claim, damage, liability or action is found in a final judgment by a
court to have resulted from the Agent's bad faith or negligence in performing
the services to be performed by the Agent under this Agreement. Notwithstanding
the foregoing, the indemnification provided for in this paragraph (a) shall not
apply to the Bank to the extent that such indemnification by the Bank would
constitute a covered transaction under Section 23A of the Federal Reserve Act.
For purposes of this section, the term "expense" shall include, but not be
limited to, counsel fees and costs, court costs, out-of-pocket costs and
compensation for the time spent by the Agent's directors, officers, employees
and counsel according to his or her normal hourly billing rates. The foregoing
agreement to indemnify shall be in addition to any liability the Company may
otherwise have to the Agent or the persons entitled to the benefit of these
indemnification provisions.
(b) The Agent jointly and severally agrees to indemnify and hold
harmless the Bank, the Company, the directors, officers, agents, servants and
employees of each of them, and each person, if any, who controls the Bank or the
Company 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 Bank or the Company, 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: (i)
▇▇▇▇, ▇▇▇▇ & Co., Inc.
________________, 1998
Page 20
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in any Application (or any amendment or supplement
thereto) or the Prospectus (or any amendment or supplement thereto), the Proxy
Statement (or any amendments or supplements thereto), or the Sales Information;
or (ii) arise out of or which 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 light of the
circumstances under which they were made, not misleading; provided, however,
that its obligations under this Section 7(b) shall exist only if, and only to
the extent, that such untrue statement or alleged untrue statement was made in,
or such material fact or alleged material fact was omitted from an Application
(or any amendment or supplement thereto), the Prospectus (or any amendment or
supplement thereto), the Proxy Statement (or any amendments or supplements
thereto), or the Sales Information in reliance upon and in conformity with
information furnished in writing to the Bank by the Agent or its representatives
(including counsel) expressly for use in the Prospectus, which the Bank and the
Company acknowledge includes only the information contained in the Prospectus
under the captions "Market for the Common Stock" and "The Conversion-Marketing
Arrangements." In addition, the Agent will not be liable under the foregoing
indemnification provision to the extent that any loss, claim, damage, liability
or action is found in a final judgment by a court to have resulted from the
Bank's bad faith or negligence.
(c) Each indemnified party shall give 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 7 and
Section 8 herein. 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 the defense of such
action with counsel chosen by it and reasonably acceptable to 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 claims, other than reasonable costs
of investigation. In no event shall the indemnifying parties be liable for the
fees and expenses of more than one firm of attorneys for the indemnified parties
(unless an indemnified party or parties shall have reasonably concluded that
there may be defenses available to it or them which are different from or
additional to those of the other indemnified parties) 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
▇▇▇▇, ▇▇▇▇ & Co., Inc.
________________, 1998
Page 21
same general allegations or circumstances. The indemnifying party shall not be
liable for any settlement of such action, proceeding or suit effected without
its prior written consent.
(d) The agreement contained in this Section 7 and in Section 8 hereof
and the representations and warranties of the Bank and the Company 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
Bank, the Company or any officers, directors or controlling persons, agents or
employees of the Bank or the Company; (ii) delivery of and payment hereunder for
the shares of Common Stock; or (iii) any termination of this Agreement.
SECTION 8. Contribution. If the indemnification of an indemnified party
provided for in Section 7 of this Agreement is for any reason held
unenforceable, the Bank or the Company and the Agent agree to contribute to the
losses, claims, damages and liabilities for which such indemnification is held
unenforceable: (i) in such proportion as is appropriate to reflect the relative
benefits to the Bank or the Company, on the one hand, and the Agent, on the
other hand, of the Conversion as contemplated (whether or not the Conversion is
consummated), or (ii) if the application provided for in clause (i) is for any
reason held unenforceable, 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 Bank or the Company, on the one hand, and the Agent, on the other
hand, as well as other equitable considerations. The Bank or the Company agrees
that for the purposes of this Section 8, the relative benefits of the Bank or
the Company and the Agent of the Conversion as contemplated shall be deemed to
be in the same proportion that the total net proceeds from the Conversion
received by the Bank or the Company in connection with the Conversion bear to
the total fees paid or to be paid to the Agent under this Agreement. No person
found guilty of any fraudulent misrepresentation (within the meaning of Section
11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person who was
not found guilty of such fraudulent misrepresentation. For purposes of this
Section 8, each of the Agent's officers and directors and each person, if any,
who controls the Agent within the meaning of the 1933 Act and the 1934 Act shall
have the same rights to contribution as the Agent, and each person, if any, who
controls the Bank or the Company within the meaning of the 1933 Act and the 1934
Act, and each officer, director and each person, if any, who controls the Bank
or the Company, shall have the same rights to contribution as the Bank and the
Company. Any party entitled to contribution shall promptly after receipt of
notice of commencement of any action, suit, claim or proceeding against such
party in respect to which a claim for contribution may be made against another
party, notify such other party, 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 8. The
Bank, the Company and the Agent agree that it would not be just and equitable if
contribution pursuant to this Section 8 were determined by pro rata allocation
or by other method of allocation that does not take into account the
▇▇▇▇, ▇▇▇▇ & Co., Inc.
________________, 1998
Page 22
equitable considerations referred to above in this Section 8. It is expressly
agreed that the Agent shall not be required to contribute to the Bank or the
Company for any loss, liability, claim, damage or expense any amount that in the
aggregate exceeds the amount paid to the Agent under this Agreement.
SECTION 9. Conditions of Your Obligations. Your obligations hereunder,
as to the Common Stock to be delivered at the Closing Date, are subject, in your
discretion, to the condition that all representations and warranties and other
statements of the Bank and the Company herein are, at and as of the commencement
of each of the Offerings and at and as of the Closing Date, true and correct in
all material respects, the condition that the Bank and the Company shall have
performed in all material respects all of its obligations hereunder to be
performed on or before such dates, and to the following further conditions.
(a) The Registration Statement shall have been declared effective by the
Commission not later than 5:30 p.m. on the _______________, 199_, or with your
consent at a later time and date; and at the Closing Date no stop order
suspending the effectiveness of the Registration Statement or the consummation
of the Conversion shall have been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission or any state authority, and
no order or other action suspending the effectiveness of the Prospectus or the
consummation of the Conversion shall have been issued or proceedings therefor
initiated or threatened by the Commission, any state authority, the OTS or the
FDIC.
(b) At the Closing Date you shall have received the documents, certificates or
opinions.
(1) The favorable opinion, dated as of the Closing Date addressed to
the Agent and for its and its counsel's benefit, of ▇▇▇▇▇▇▇, Spidi, Sloane
& ▇▇▇▇▇, P.C., special counsel for the Company and the Bank, in form and
substance satisfactory to the Agent and its counsel, that opines as to
legal matters set forth below.
(i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the Commonwealth
of Pennsylvania. The Bank is duly organized and validly exists as a
federally chartered savings bank under the laws of the United States
of America and upon the Conversion will become a duly organized and
validly existing federally chartered savings bank in the capital stock
form of organization.
▇▇▇▇, ▇▇▇▇ & Co., Inc.
________________, 1998
Page 23
(ii) The Company and the Bank each has the corporate power
and authority to own, lease and operate its properties and to conduct
its business as described in the Registration Statement and
Prospectus; and the Company is duly qualified as a foreign corporation
to transact business and is in good standing in each jurisdiction
where it owns or leases any material properties or conducts any
material business.
(iii) The deposit accounts of the Bank are insured by the SAIF
up to applicable limits in accordance with applicable regulations;
and, to the best of such counsel's knowledge, no proceeding for the
termination or revocation of such insurance is pending or threatened.
The Bank is a member of the Federal Home Loan Bank of Pittsburgh.
(iv) Upon consummation of the Conversion, the authorized, issued
and outstanding capital stock of the Company will be within the range
set forth in the Registration Statement and the Prospectus under the
caption "Capitalization" and, to the best of such counsel's knowledge,
no shares of Common Stock have been issued prior to the Closing Date;
the shares of Common Stock to be sold in the Offerings, have been duly
and validly authorized for issuance and, when issued and delivered by
the Company against payment therefor as set forth in the Plan and
stated on the cover page of the Prospectus, will be duly and validly
issued and fully paid and nonassessable; and the issuance of the
shares of Common Stock is not subject to statutory preemptive rights.
(v) Upon consummation of the Conversion, all of the issued
and outstanding capital stock of the Bank will be duly authorized and
validly issued and fully paid and nonassessable, and all such capital
stock will be owned of record and, to such counsel's knowledge,
beneficially, by the Company free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity.
(vi) The Company's acquisition of the Bank has been approved by
the OTS and, to the best of such counsel's knowledge, no action has
been taken or is pending or threatened to revoke such approval.
(vii) The Conversion Application, as amended or supplemented,
if amended or supplemented, as filed with the OTS, complied as to form
in all material respects with the requirements of the HOLA and the
Conversion Regulations. The OTS has authorized the Conversion, subject
to the satisfaction of the conditions set forth in its
▇▇▇▇, ▇▇▇▇ & Co., Inc.
________________, 1998
Page 24
approval and, to the best of such counsel's knowledge, no action has
been taken or is pending or threatened to revoke such authorization.
(viii) The OTS' approval of the Plan remains in full force and
effect; the Bank has duly adopted a federal stock charter and by-laws
effective upon consummation of the Conversion; to the best of such
counsel's knowledge, the Company and the Bank have conducted the
Conversion in all material respects in accordance with applicable
requirements of the Conversion Regulations, federal law, all other
applicable regulations, decisions and orders thereunder and the Plan,
including all material applicable terms, conditions, requirements and
conditions precedent to the Conversion imposed upon the Company and
the Bank by the Commission and the OTS; no order has been issued by
the Commission or the OTS to suspend the Offerings and no action for
such purpose has been instituted or, to the best of such counsel's
knowledge, threatened by the Commission or the OTS; and, to the best
of such counsel's knowledge, no person has sought to obtain review of
the final action of the OTS in approving the Conversion Application or
the Plan.
(ix) This Agreement has been duly authorized, executed and
delivered by the Company and the Bank.
(x) The Registration Statement is effective under the 1933 Act
and no stop order suspending effectiveness has been issued under the
1933 Act and, to the best of such counsel's knowledge, no proceedings
therefor have been initiated or threatened by the Commission.
(xi) Subject to satisfaction of conditions of the OTS in
connection with its approval of the Conversion Application and Holding
Company Application, no further approval, authorization, consent or
other order of any federal or state board or body is required in
connection with the execution and delivery of this Agreement, the
issuance of the shares of Common Stock and the consummation of the
Conversion, except as may be required under the securities or Blue Sky
laws of various jurisdictions as to which counsel need render no
opinion.
(xii) At the time the Registration Statement became effective, (i)
the Registration Statement (as amended or supplemented, if so amended
or supplemented) (other than the financial statements, stock valuation
information and other financial and statistical data included
▇▇▇▇, ▇▇▇▇ & Co., Inc.
________________, 1998
Page 25
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, stock valuation information and other financial and
statistical data included therein, as to which no opinion need be
rendered) complied as to form in all material respects with the
requirements of the Conversion Regulations and federal law.
(xiii) The information in the Registration Statement and Prospectus
under the captions "Risk Factors - Anti-Takeover Provisions and
Statutory Provisions That Could Discourage Hostile Acquisitions of
Control", "The Conversion", "Regulation", "Taxation", "Restrictions on
Acquisition of SFSB Holding Company" and "Description of Capital
Stock" to the extent that it constitutes matters of law, summaries of
legal matters, documents or proceedings, or legal conclusions, has
been reviewed by such counsel and is correct in all material respects;
provided, however, that as it relates to the information under the
caption "Taxation" the opinion need only address matters of Federal
law.
(xiv) The terms and provisions of the Common Stock conform in all
material respects to the description thereof contained in the
Prospectus, and the form of certificate used to evidence the shares of
Common Stock is in due and proper form.
(xv) To the best of such counsel's knowledge, there are no
material contracts, indentures, loan agreements, notes, leases or
other instruments required to be described or referred to in the
Registration Statement and Prospectus or to be filed as exhibits
thereto other than those described or referred to therein or filed as
exhibits thereto.
(xvi) To the best of such counsel's knowledge, the Company and the
Bank have obtained all material federal licenses, permits and other
governmental authorizations currently required under HOLA for the
conduct of their respective businesses as described in the Prospectus
or the Registration Statement, and all such licenses, permits and
other governmental authorizations are in full force and effect.
(xvii) The Plan has been duly authorized by the Board of Directors
of the Company and the Board of Directors of the Bank and, effective
upon consummation of the Conversion, the Bank will be authorized to
issue capital stock.
▇▇▇▇, ▇▇▇▇ & Co., Inc.
________________, 1998
Page 26
(xviii) To the best of such counsel's knowledge, the Company is not
in violation of its articles of incorporation or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument described in the Prospectus
or filed as an exhibit to the Registration Statement 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 and
the Bank taken as a whole; the execution and delivery of this
Agreement, the incurrence of the obligations herein set forth and the
consummation of the transactions contemplated herein have been duly
authorized by all necessary corporate action on the part of the
Company and will not conflict with or constitute a breach of, or
default under, or result in the creation or imposition of any material
lien, charge or encumbrance upon any property or assets of the Company
pursuant to any material contract, indenture, loan agreement, note,
lease or other instrument described in the Prospectus or filed as an
exhibit to the Registration Statement, nor will such action result in
any violation of the provisions of the articles of incorporation or
bylaws of the Company.
(xix) To the best of such counsel's knowledge, the Bank is not
in violation of its federal mutual charter (and the Bank will not be
in violation of its charter in stock form upon consummation of the
Conversion) or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any material
contract, indenture, loan agreement, note, lease or other instrument
described in the Prospectus or filed as an exhibit to the Registration
Statement 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 and the Bank taken as a whole; the execution
and delivery of this Agreement, the incurrence of the obligations
herein set forth and the consummation of the transaction contemplated
herein, will not conflict with or constitute a breach of, or default
under, or result in the creation or imposition of any material lien,
charge or encumbrance upon any property or assets of the Bank pursuant
to any material contract indenture, loan agreement, note, lease or
other instrument, described in the Prospectus or filed as an exhibit
to the Registration Statement, nor will such action result in any
violation of the provisions of the charter or bylaws of the Bank.
▇▇▇▇, ▇▇▇▇ & Co., Inc.
________________, 1998
Page 27
(xx) To the best of such counsel's knowledge, the Company and the
Bank are not in violation of any written directive from the OTS or the
FDIC to make any material change in the method of conducting their
businesses.
(xxi) Neither the Company nor the Bank is required to be registered
as an investment company under the Investment Company Act of 1940.
(xxii) Based on the certificate of the inspector of election, the
Plan has been duly adopted by the required vote of the members of the
Bank.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction or the United States, to
the extent such counsel deems proper and specified in such opinion, upon the
opinion of other counsel of good standing (providing that such counsel states
that the Agent and its counsel are justified in relying upon such specified
opinion or opinions), and (B) as to matters of fact, to the extent such counsel
deems proper, on certificates of responsible officers of the Company and the
Bank and public officials.
(2) The favorable opinion, dated as of the Closing Date and addressed
to ▇▇▇▇ ▇▇▇▇ and for its benefit, of _____________________, the Bank's local
counsel, in form and substance to the effect that:
(i) The Bank has the corporate power and authority to own, operate
and lease its properties and to conduct its business as described in
the Registration Statement and Prospectus; and the Bank is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction where it owns or leases any material
properties or conducts any material business.
(ii) There are no legal or governmental proceedings pending or, to
the best of such counsel's knowledge, threatened against the Company
or the Bank which are required to be disclosed in the Registration
Statement and Prospectus, other than those disclosed therein, and all
pending legal and governmental proceedings to which the Company or the
Bank is the subject which are not disclosed in the Registration
Statement, including ordinary routine litigation incidental to the
business, are, considered in the aggregate, not material.
▇▇▇▇, ▇▇▇▇ & Co., Inc.
________________, 1998
Page 28
(iii) The Company and the Bank have obtained all material state
and local licenses, permits and other governmental authorizations
currently required for the conduct of their respective businesses as
described in the Registration Statement and Prospectus, and all such
licenses, permits and other governmental authorizations are in full
force and effect, and the Company and the Bank are in all material
respects complying therewith.
(iv) To the best of such counsel's knowledge, the Company and the
Bank have good and marketable title to all properties and assets which
are material to the business of the Company and the Bank,
respectively, and to those properties and assets described in the
Registration Statement as owned by them, free and clear of all liens,
charges, encumbrances or restrictions, except such as are described in
the Registration Statement (including the Liquidation Account) or are
not material in relation to the business of the Company and the Bank
considered as one enterprise.
(3) the letter of special counsel for the Company and the Bank
addressed to the Agent, dated the Closing Date, in form and substance to the
effect that:
During the preparation of the Conversion Application, the
Registration Statement and the Prospectus, such counsel participated
in conferences with management of and the independent public
accountants for the Company and the Bank based upon such conferences
and a review of corporate records of the Company and the Bank as such
counsel conducted in connection with the preparation of the
Registration Statement, nothing has come to their attention that would
lead them to believe that, the Registration Statement, the Prospectus,
or any amendment or supplement thereto (other than the financial
statements, notes to financial statements, financial tables and other
financial and statistical data and stock valuation information
included therein, as to which such counsel need express no view),
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.
(4) The favorable opinion, dated as of the Closing Date, of Tucker,
Arensberg, P.C., your counsel, with respect to such matters as you may
▇▇▇▇, ▇▇▇▇ & Co., Inc.
________________, 1998
Page 29
reasonably require. Such opinion may rely upon the opinions of counsel to the
Bank and the Company, and as to matters of fact, upon certificates of officers
and directors of the Company and the Bank delivered pursuant hereto or as such
counsel shall reasonably request.
(c) At the Closing Date, you shall receive a certificate of the Chief
Executive Officer and the Chief Financial Officer of the Company and of the
Chief Executive Officer; and Chief Financial Officer of the Bank, dated as of
such Closing Date, to the effect that: (i) since the respective dates as of
which information is given in the Registration Statement and the Prospectus,
there has been no material adverse change in the financial condition, results of
operations or business of the Company and the Bank considered as one enterprise,
whether or not arising in the ordinary course of business; (ii) the
representations and warranties in Section 4 of this Agreement are true and
correct with the same force and effect as though expressly made at and as of the
Closing Date; (iii) the Company and the Bank have complied with all agreements
and satisfied all conditions on their part to be performed or satisfied at or
prior to the Closing Date and will comply with all obligations to be satisfied
by them after the Conversion; (iv) no stop order suspending the effectiveness of
the Registration Statement has been initiated or threatened by the Commission or
any state authority; and (v) no order suspending any of 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 have been initiated or threatened by the Commission, any state
authority, the FDIC or the OTS.
(d) Prior to and at the Closing Date: (i) there shall have been no
material adverse change in the financial condition, results of operations or
business of the Company or the Bank independently, or of the Company or the
Bank, considered as one enterprise, from that as of the latest dates as of which
such condition is set forth in the Prospectus, except as referred to therein;
(ii) there shall have been no material transaction entered into by the Company
and the Bank, considered as one enterprise, from 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; (iii) the Company
or the Bank shall not have received from the FDIC or the OTS 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 Agent) or which materially and adversely would affect the
financial condition, results of operations or business of the Company or the
Bank; (iv) neither the Company nor the Bank shall have been in default (nor
shall an 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
▇▇▇▇, ▇▇▇▇ & Co., Inc.
________________, 1998
Page 30
commission, board or other administrative agency, shall be pending or, to the
knowledge of the Company or the Bank, threatened against the Company or the Bank
or affecting any of their properties wherein an unfavorable decision, ruling or
finding would materially and adversely affect the financial condition, results
of operations or business of the Company or the Bank, taken as a whole; and (vi)
the shares of Common Stock shall have been qualified or registered for offering
and sale under the securities or blue sky laws of the jurisdictions as set forth
in the Preliminary Blue Sky Survey of the law firm of ▇▇▇▇▇▇▇, Spidi, Sloane &
▇▇▇▇▇, P.C.
(e) Concurrently with the execution of this Agreement, the Agent, the
Company and the Bank shall receive a letter from La France, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇ dated _______________, 1998 and addressed to the Agent: (i) confirming
that La France, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ is a firm of independent public
accountants with respect to the Company and the Bank within the meaning of the
1933 Act and the 1933 Act Regulations and stating in effect that in its opinion
the financial statements of the Bank for the years ended December 31, 1996 and
1995, as are included in the Prospectus and, with respect to such audited
financial statements covered by its opinion included therein, comply as to form
in all material respects with the applicable accounting requirements of the 1933
Act, the 1934 Act and the related published rules and regulations of the
Commission thereunder and generally accepted accounting principles; (ii) stating
in effect that, on the basis of certain agreed upon procedures (but not an
examination in accordance with generally accepted auditing standards) consisting
of a reading of the latest available unaudited interim financial statements of
the Bank prepared by the Bank, a reading of the minutes of the meetings of the
Board of Directors and members of the Bank and consultations with officers of
the Bank responsible for financial and accounting matters, nothing came to its
attention which caused it to believe that: during the period from that date of
the latest audited financial statements included in the Prospectus to a
specified date not more than five business days prior to the date hereof, there
was any material increase in borrowings by the Company or the Bank (increases in
borrowings (which shall not include deposits) will not be deemed material if
such increase in total borrowings outstanding does not exceed $1.0 million); or
there was any material decrease in surplus and reserves of the Bank at the date
of such letter as compared with amounts shown in the latest audited statement of
condition included in the Prospectus or there was any material decrease in net
income or net interest income of the Bank for the number of full months
commencing immediately after the period covered by the latest audited income
statement included in the Prospectus and ended on the latest month end prior to
the date of the Prospectus or in such letter as compared to the corresponding
period in the preceding year; and (iii) stating that, in addition to the
examination referred to in its opinion included in the Prospectus and the
performance of the procedures referred to in clause (ii) of this subsection (e),
it has compared with the general accounting records of the Company
▇▇▇▇, ▇▇▇▇ & Co., Inc.
________________, 1998
Page 31
and/or the Bank, as applicable, which are subject to the internal controls of
the Company's and/or the Bank's, as applicable, accounting system and other data
prepared by the Company and/or the Bank, as applicable, directly from such
accounting records, to the extent specified in such letter, such amounts and/or
percentages set forth in the Prospectus as you may reasonably request; and they
have found such amounts and percentages to be in agreement therewith (subject to
rounding).
(f) At the Closing Date, you shall receive a letter from La France,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, dated the Closing Date, addressed to the Agent,
confirming the statements made by it in the letter delivered by it pursuant to
subsection (e) of this Section 9, the "specified date" referred to in clause
(ii) (C) thereof to be a date specified in such letter, which shall not be more
than five business days prior to the Closing Date.
(g) At the Closing Date, you shall have received a letter from FinPro,
dated as of the Closing Date, confirming its appraisal.
(h) At the Closing Date, your counsel shall have been furnished with
such documents and opinions as they may reasonably require for the purpose of
enabling them to pass upon the sale of the shares as herein contemplated and
related proceedings or in order to evidence the accuracy or completeness of any
of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company or the
Bank in connection with the Conversion and the sale of the shares of Common
Stock as herein contemplated shall be satisfactory in form and substance to you
and your counsel.
(i) The Company and the Bank shall not have sustained since the date of
the latest audited financial statements included in the Registration Statement
and Prospectus any loss or interference with its business 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 or otherwise provided to the
Agent in writing and in any such case described above, is in your judgment
sufficiently material and adverse as to make it impracticable or inadvisable to
proceed with any of the Offerings or the delivery of the Common Stock on the
terms and in the manner contemplated in the Prospectus.
(j) 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 American Stock Exchange or in the
over-the-counter market, or quotations halted generally on the Nasdaq Stock
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
▇▇▇▇, ▇▇▇▇ & Co., Inc.
________________, 1998
Page 32
or any other governmental authority; (ii) a general moratorium on the operation
of commercial banks, federal savings and loan associations or savings and loan
associations in Pennsylvania or a general moratorium on the withdrawal of
deposits from commercial banks, federal savings and loan associations or savings
and loan associations in Pennsylvania declared by either federal or Pennsylvania
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 decline, in your judgment, makes it
impracticable or inadvisable to proceed with any of the Offerings or the
delivery of the shares of Common Stock on the terms and in the manner
contemplated in the Prospectus.
If any of the conditions specified in this Section 9 shall not have
been fulfilled when and as required by this Agreement, or by September 30, 1998,
this Agreement and all of your obligations hereunder may be canceled by you by
notifying 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 1, 6, 7 and 8 hereof. Notwithstanding the above, if this Agreement is
canceled pursuant to this paragraph, the Bank and the Company jointly and
severally agree to reimburse you for all of your out-of-pocket expenses
reasonably incurred by you, including any legal fees to be paid to the Agent's
counsel which shall not exceed $12,500, and an advisory and administrative
services fee of $25,000 in connection with the preparation of the Registration
Statement and the Prospectus, and in contemplation of the proposed Offerings.
SECTION 10. Termination.
(a) In the event the Company fails to sell all of the Common Stock
within the period specified, and in accordance with the provisions of the Plan
or as required by the Conversion Regulations, this Agreement shall terminate
upon refund by the Bank to each person who has subscribed for or ordered any of
the Common 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 Bank and/or the Company as set forth in Sections 1, 6, 7 and 8 hereof.
(b) This Agreement may be terminated by the Agent, with respect to the
Agent's obligations hereunder, by notifying the Company at any time at or prior
to the Closing Date, if any of the conditions specified in Section 9 hereof
shall not have been fulfilled when and as required by this Agreement or if the
Conversion has not been completed by September 30, 1998.
▇▇▇▇, ▇▇▇▇ & Co., Inc.
________________, 1998
Page 33
SECTION 11. Survival. The respective indemnities, agreements,
representations, warranties and other statements of the Bank, the Company and
you, as set forth in this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of you or any of your officers or directors of any person
controlling you, or the Bank or the Company, or any officer, director or person
controlling the Bank or the Company, and shall survive termination of this
Agreement and the receipt or delivery of any payment for the shares of Common
Stock.
SECTION 12. Miscellaneous. Notices hereunder, except as otherwise
provided herein, shall be given in writing or by telegraph, addressed (a) to the
Agent at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
(Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇), with copies to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, P.C., One PPG
Place, Suite 1500, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Esq.) and (b) to the Bank and the Company at the Bank's principal office
(Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇), President), with a copy to ▇▇▇▇▇▇▇, Spidi,
Sloane & ▇▇▇▇▇, P.C., ▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ (Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.).
This Agreement is made solely for the benefit of and will be binding
upon the parties hereto and their respective successors and the controlling
persons, directors and officers referred to in Section 7 hereof, and no other
person will have any right or obligation hereunder. The term "successors" shall
not include any purchaser of any of the shares of Common Stock.
Capitalized terms used herein but not herein defined shall have the
meanings ascribed to them in the Plan, unless the context hereof clearly
indicates otherwise.
This Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Pennsylvania.
Time shall be of the essence of this Agreement.
This Agreement may be signed in various counterparts which together
will constitute one agreement.
▇▇▇▇, ▇▇▇▇ & Co., Inc.
_______________, 1998
Page 34
If the foregoing correctly sets forth the arrangement among the
Company, the Bank and the Agent, please indicate acceptance thereof in the space
provided below for that purpose, whereupon this letter and your acceptance shall
constitute a binding agreement.
SFSB HOLDING COMPANY, ▇▇▇▇▇▇▇ FEDERAL SAVINGS BANK,
a Pennsylvania corporation a federal savings bank
By: By:
--------------------------------------- -------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President President
Accepted as of the date first above written.
▇▇▇▇, ▇▇▇▇ & CO., INC.
By:
--------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇
First Vice President