<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 11, 1997
REGISTRATION NO. 333-30469
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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PRE-EFFECTIVE AMENDMENT NO. 2*
TO
FORM S-1
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
---------------
EQUALITY BANCORP, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 6035 43-1785126
(STATE OR OTHER (PRIMARY STANDARD (I.R.S. EMPLOYER
JURISDICTION OF INDUSTRIAL CLASSIFICATION IDENTIFICATION NO.)
INCORPORATION OR CODE NUMBER)
ORGANIZATION) EQUALITY BANCORP, INC.
9920 WATSON ROAD
ST. LOUIS, MISSOURI 63126
(314) 965-7090
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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RICHARD C. FELLHAUER
PRESIDENT AND CHIEF EXECUTIVE OFFICER
EQUALITY BANCORP, INC.
9920 WATSON ROAD
ST. LOUIS, MISSOURI 63126
(314) 965-7090
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
PLEASE ADDRESS A COPY OF ALL COMMUNICATIONS TO:
CHRISTOPHER J. ZINSKI, ESQ. PAUL M. AGUGGIA, ESQ.
SCHIFF HARDIN & WAITE BREYER & AGUGGIA
7200 SEARS TOWER 1300 "I" STREET, N.W., SUITE 470 EAST
CHICAGO, ILLINOIS 60606 WASHINGTON, D.C. 20005
(312) 258-5548 (202) 737-7900
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO THE
PUBLIC: As soon as practicable after the effective date of this Registration
Statement.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [_]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933, check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act of 1933, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
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*Pre-effective Amendment No. 2 relates solely to revisions of Exhibit No. 1.2
filed herewith.
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
HAS DULY CAUSED THIS AMENDMENT TO THE REGISTRATION STATEMENT TO BE SIGNED ON
ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF ST.
LOUIS, STATE OF MISSOURI, ON AUGUST 11, 1997.
Equality Bancorp, Inc.
(Registrant)
/s/ Richard C. Fellhauer
By: _________________________________
Richard C. Fellhauer
Chairman of the Board, President,
Chief
Executive Officer and Director
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS AMENDMENT TO
THE REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES SET FORTH OPPOSITE THEIR NAMES AND ON AUGUST 11, 1997:
<TABLE>
<CAPTION>
SIGNATURE TITLE
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<S> <C>
/s/ Richard C. Fellhauer Chairman of the Board, President, Chief
___________________________________________ Executive Officer and Director (Principal
Richard C. Fellhauer Executive Officer)
/s/ Michael A. Deelo Treasurer, Chief Financial Officer and
___________________________________________ Director (Principal Financial Officer and
Michael A. Deelo Principal Accounting Officer)
LeRoy C. Crook* Director
___________________________________________
LeRoy C. Crook
Kenneth J. Hrdlicka* Director
___________________________________________
Kenneth J. Hrdlicka
Michael J. Walsh* Director
___________________________________________
Michael J. Walsh
Daniel C. Aubuchon* Director
___________________________________________
Daniel C. Aubuchon
Stacey W. Braswell* Director
___________________________________________
Stacey W. Braswell
Berenice J. Mahacek* Director
___________________________________________
Berenice J. Mahacek
Charles J. Wolter* Director
___________________________________________
</TABLE> Charles J. Wolter
/s/ Richard C. Fellhauer
*By: ________________________________
Richard C. Fellhauer
Attorney-in-Fact
II-3
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
ITEM EXHIBIT
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<C> <S> <C> <C>
1. Underwriting agreement 1.1 Engagement Letter with Trident
Securities, Inc.*
1.2 Form of Agency Agreement with Trident
Securities, Inc.
2. Plan of acquisition, 2.1 Amended Plan of Conversion and
reorganization, arrangement, Reorganization of First Missouri
liquidation, or succession Financial, M.H.C. and Equality Savings
and Loan Association, F.A.*
3. Articles of Incorporation 3.1 Certificate of Incorporation of
and Bylaws Registrant as filed in Delaware on May
14, 1997*
3.2 Bylaws of Registrant as adopted by the
Board of Directors of Registrant on
June 20, 1997*
4. Instruments defining the 4.1 Specimen Stock Certificate of
rights of holders, incl. Registrant*
indentures
4.2 Articles IV, V, VI, VII, XI, XII,
XIII, XIV, XVI and XVII of the
Registrant's Certificate of
Incorporation (see Exhibit 3.1)*
4.3 Articles II, III, IV, VIII and XI of
the Registrant's Bylaws (see Exhibit
3.2)*
5. Opinion re: legality 5.1 Opinion of Schiff Hardin & Waite,
counsel to the Registrant*
8. Opinion re: tax matters 8.1 Form of Opinion of KPMG Peat Marwick
LLP regarding federal income tax
consequences and Missouri income tax
consequences of the Conversion and
Reorganization*
10. Material contracts 10.1 Equality Savings and Loan Association
1993 Stock Option and Incentive Plan*
10.2 Credit Agreement between Registrant
and Equality Savings and Loan
Association, F.A. Employee Stock
Ownership Plan*
10.3 Equality Bancorp, Inc. 1997 Stock
Option and Incentive Plan*
10.4 Equality Bancorp, Inc. 1997 Management
Development and Recognition Plan*
10.5 Form of Employment Agreement to be
entered into between Equality Bancorp,
Inc. and Richard C. Fellhauer*
10.6 Form of Employment Agreement to be
entered into between Equality Bancorp,
Inc. and Michael A. Deelo*
10.7 Form of Employment Agreement to be
entered into between Equality Bancorp,
Inc. and Leonard O. Wolter*
21. Subsidiaries of the 21.1 List of subsidiaries of the
registrant Registrant*
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
ITEM EXHIBIT
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<C> <S> <C> <C>
23. Consent of experts and 23.1 Consent of KPMG Peat Marwick LLP (and
counsel included in Exhibit 8.1)*
23.2 Consent of Schiff Hardin & Waite
(contained in the opinion filed as
Exhibit 5.1)*
23.3 Consent of RP Financial, L.C.*
23.4 Consent of Rubin, Brown, Gornstein &
Co. LLP*
24. Power of attorney 24.1 Powers of attorney are included on the
signature page to the Registration
Statement*
27. Financial Data Schedule 27.1 Financial Data Schedule*
99. Additional exhibits 99.1 Engagement Letter with RP Financial,
L.C. as Appraiser*
99.2 Appraisal Report of RP Financial,
L.C.*
99.3 Stock Order Form and Order Form
Instructions for Offering*
99.4 Proxy Statement for Special Meeting of
Members of First Missouri Financial,
M.H.C.*
99.5 Form of Proxy for Special Meeting of
Members of First Missouri Financial,
M.H.C.*
</TABLE>
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*Previously filed.
II-5
<PAGE>
EXHIBIT 1.2
EQUALITY BANCORP, INC.
FIRST MISSOURI FINANCIAL, M.H.C.
EQUALITY SAVINGS AND LOAN ASSOCIATION, F.A.
Up to 1,729,323 Shares of Common Stock
of Equality Bancorp, Inc.
($0.01 Par Value Per Share)
AGENCY AGREEMENT
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August ___, 1997
Trident Securities, Inc.
4601 Six Forks Road, 4th Floor
Raleigh, North Carolina 27609
Ladies and Gentlemen:
Equality Bancorp, Inc., St. Louis, Missouri, a Delaware corporation
("Company"), First Missouri Financial, M.H.C., St. Louis, Missouri ("MHC"), a
federally chartered mutual holding company, and Equality Savings and Loan
Association, F.A., St. Louis, Missouri ("Association"), a federally chartered
stock savings association, the deposit accounts of which are insured by the
Federal Deposit Insurance Corporation ("FDIC") through the Savings Association
Insurance Fund ("SAIF"), and the majority owned subsidiary of the MHC (the
Company, MHC and Association are collectively referred to herein as the "Primary
Parties"), hereby confirm, jointly and severally, their agreement with Trident
Securities, Inc., Raleigh, North Carolina ("Trident") as of the date hereof, as
follows:
Introduction. On October 22, 1993, the Association reorganized into the
mutual holding company structure in a transaction in which the MHC was formed.
The MHC owns 52.3% of the issued and outstanding shares of common stock of the
Association and the remaining 47.7% of the outstanding shares of common stock of
the Association are owned by persons other than the MHC. The foregoing
transaction is hereinafter referred to as the "MHC Reorganization."
The MHC and the Association desire to eliminate the mutual holding company
structure. In accordance with a Plan of Conversion and Reorganization of First
Missouri Financial, M.H.C. and Equality Savings and Loan Association, F.A.
("Plan") adopted on May 16, 1997 and subsequently amended on June 20, 1997 by
the Boards of Directors of the Primary Parties, the MHC proposes to convert from
a federally chartered mutual holding company to a stock holding company with the
Association reorganizing simultaneously as a wholly owned subsidiary of the
Company (collectively, the "Conversion and Reorganization").
Pursuant to the Plan, the Conversion and Reorganization will be effected as
follows: (i) the MHC will convert to an interim federal stock savings
association and merge with and into the Association, with the Association as the
surviving entity and with the cancellation of the shares of common stock of the
Association, $1.00 par value per share ("Association Common Stock"), issued and
outstanding to the MHC as of the Closing Date (as hereinafter defined) and (ii)
an interim federal stock savings association formed by the Company will merge
with and into the Association, resulting in (a) the Association becoming a
wholly owned subsidiary of the
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Trident Securities, Inc.
Page 2
Company and (b) the outstanding shares of Association Common Stock held by
persons other than the MHC ("Public Association Shares") being exchanged for
shares of common stock, $0.01 par value per share, of the Company ("Exchange
Shares") pursuant to a specified exchange ratio ("Exchange Ratio") ("Exchange
Offering"), all as described in the Plan.
In addition to the Exchange Offering, pursuant to the Plan and as part of
the Conversion and Reorganization, the Company is also offering up to 920,000
shares (subject to adjustment up to 1,058,000 shares) of its common stock, $0.01
par value per share ("Conversion Shares" and together with the Exchange Shares,
"Common Stock" or "Shares") in a subscription offering ("Subscription Offering")
to (i) Eligible Account Holders (as defined in the Plan), (ii) the ESOP (as
defined in the Plan), (iii) Supplemental Eligible Account Holders (as defined in
the Plan), (iv) Other Members (as defined in the Plan), (v) officers, directors
and employees of the Primary Parties, and (vi) stockholders of the Association
other than the MHC ("Public Stockholders"). The Company may offer any
Conversion Shares not subscribed for in the Subscription Offering for sale in a
community offering ("Community Offering" and, when referred to together with the
Subscription Offering, the "Subscription and Community Offering") to certain
members of the general public to whom a Prospectus (as herein after defined) is
delivered by us on behalf of the Company with preference given to natural
persons residing in the Missouri counties of St. Louis City, St. Louis,
Jefferson, St. Charles and Franklin. If any Conversion Shares are not
subscribed for or purchased in the Subscription and Community Offering, Trident
may seek to form a syndicate of selected registered broker-dealers to assist in
the sale of the Conversion Shares on a best efforts basis in a syndicated
community offering ("Syndicated Community Offering"). The Subscription
Offering, Community Offering, and Syndicated Community Offering, if any,
together with the Exchange Offering, are collectively referred to as the
"Offering."
The Company has filed with the Securities and Exchange Commission
("Commission") a registration statement on Form S-1 (File No. 333-30469),
including exhibits and as may be amended and/or supplemented ("Registration
Statement"), containing a prospectus relating to the Offering, for the
registration of the Shares under the Securities Act of 1933 ("1933 Act"), and
has filed such amendments and supplements thereto, if any, and such amended
prospectuses and supplemented prospectuses as may have been required to the date
hereof. The prospectus, as amended and/or supplemented, on file with the
Commission at the time the Registration Statement initially becomes effective is
hereinafter called the "Prospectus," except that if any prospectus is filed by
the Company pursuant to Rule 424(b) or (c) of the rules and regulations of the
Commission under the 1933 Act ("1933 Act Regulations") differing from the
prospectus on file at the time the Registration Statement initially becomes
effective, the term "Prospectus" shall refer to the prospectus filed pursuant to
Rule 424(b) or (c) from and after the time said prospectus is filed with the
Commission.
The MHC has filed with the Office of Thrift Supervision ("OTS") an
Application for Approval of Conversion, including exhibits and as may be amended
and/or supplemented ("Conversion Application"), including the Prospectus
contained therein, and has filed such amendments or supplements thereto, if any,
as may have been required pursuant to the Home Owners' Loan Act, as amended
("HOLA"), 12 C.F.R. 575.12(a) and 12 C.F.R. Part 563b ("Conversion
Regulations"). In addition, the Company has filed with the OTS an application
on Form H-(e)1-S, with exhibits (including such required filings in connection
with the interim mergers described above which are part of the Conversion and
Reorganization) and as may be amended and/or supplemented (collectively, the
"Holding Company Application"), and has filed
<PAGE>
Trident Securities, Inc.
Page 3
such amendments or supplements thereto, if any, as may have been required to
become a registered savings and loan holding company under the HOLA.
Section 1. Appointment of Trident; Trident's Services; Compensation and
Expenses; Sale and Delivery of Shares.
(a) Subject to the terms and conditions herein set forth, the Primary
Parties hereby appoint Trident to serve as their exclusive financial advisor to
exercise its best efforts to sell the Conversion Stock in the Offering.
(i) On the basis of the representations and warranties and the
agreements herein, but subject to the terms and conditions herein, Trident
hereby accepts such appointment. The Primary Parties acknowledge that Trident
shall not be required to purchase any Conversion Stock and shall not be
obligated to take any action inconsistent with all applicable laws, regulations,
decisions or orders. Trident may assemble and manage a selling group of broker-
dealers, which are members of the National Association of Securities Dealers,
Inc. ("NASD"), to participate in the solicitation of purchase orders for
Conversion Stock in the event of the Syndicated Community Offering. Members of
such selling group will enter into a selected dealers' agreement ("Dealers'
Agreement"), the form of which is set forth as Exhibit A to this Agreement.
(ii) Trident agrees to perform the services described in the
engagement letter dated May 16, 1997 and agreed to and accepted by the
Association on May 19, 1997 (a copy of which is attached hereto as Exhibit B).
The obligations of Trident pursuant to this Agreement shall terminate in
accordance with Section 9 hereof.
(b) Trident shall receive the following compensation for its services
hereunder:
(i) A management fee in the amount of $90,000 on the Closing Date
(as hereinafter defined);
(ii) For Conversion Shares sold by other NASD member firms in the
Syndicated Community Offering, if any, pursuant to the Dealers' Agreement,
a commission not to exceed a fee to be agreed upon jointly by Trident and
the Association to reflect market requirements at the time of the stock
allocation in the Syndicated Community Offering; and
(iii) Trident shall be reimbursed for all allocable expenses
incurred by it, including, but not limited to, legal fees, whether or not
the Conversion and Reorganization is consummated. Reimbursement for such
legal fees and other out-of-pocket expenses shall not exceed $22,500, and
$7,500, respectively. Trident acknowledges receipt of $7,500 to be applied
toward the payment of such expenses. Neither of the Primary Parties shall
pay or reimburse Trident for any of the foregoing expenses which are
incurred or accrued after Trident shall have notified either of the Primary
Parties of its election to terminate this Agreement pursuant to Section 9
hereof or after such time as the Primary Parties shall have given notice to
Trident of its or their
<PAGE>
Trident Securities, Inc.
Page 4
election to terminate this Agreement pursuant to Section 9 hereof that
Trident is in breach of this Agreement.
To the extent not previously paid, full payment of Trident's actual and
accountable expenses shall be made in next day funds on the Closing Date (as
hereinafter defined) or, if the Conversion and Reorganization is not completed
and is abandoned or terminated for any reason, within five (5) days of receipt
by the Primary Parties of a reasonable accounting from Trident of its expenses;
provided, however, that the failure to renegotiate will not result in a
termination of the Agreement.
In the event of a resolicitation of subscribers, the parties agree to
renegotiate the expense cap on legal fees and out-of-pocket expenses applicable
to Trident.
(c) The release of Shares against payment therefor shall be made on a
date acceptable to Trident and at the principal office of the Company or
Association or at such other place as shall be agreed upon between the parties
hereto. The date upon which the Company shall release or deliver the Shares
sold in the Offering in accordance with the terms hereof is herein called the
"Closing Date." If all conditions precedent to the consummation of the
Conversion and Reorganization are satisfied, including, without limitation, the
sale of all Shares required by the Plan to be sold, the Company agrees to issue
or have issued the Shares sold in the Offerings and to release for delivery
certificates for such Shares within three business days after the Closing Date
against payment to the Company by any means authorized by the Plan; provided,
however, that no Shares shall be released for delivery by the Company until the
conditions specified in Section 4 hereof shall have been complied with to the
reasonable satisfaction of Trident or waived in writing by Trident.
In the event the Company is unable to sell a minimum of 680,000 Conversion
Shares (or such lesser number as the OTS may authorize) by __________, 1997 any
extension of such period as may be approved by the OTS), the Company shall
refund to any persons who have subscribed for any of the Conversion Shares the
full amount which it may have received from them, plus accrued interest as set
forth in the Prospectus and none of the parties to this Agreement shall
thereafter have any obligation to the other parties hereunder, except as set
forth in this Section 1 and in Sections 5, 6, 7, 8 and 9 hereof.
Section 2. Representations and Warranties of the Primary Parties. The
Primary Parties, jointly and severally, represent and warrant to Trident as
follows:
(a) The MHC Reorganization was conducted in accordance with all applicable
OTS rules and regulations, then in effect and the Primary Parties received, and
complied in all materials respects with, all applicable regulatory approvals.
(b) The Company has filed with the Commission the Registration Statement,
including exhibits, amendments or supplements thereto. The Registration
Statement was declared effective by the Commission on August ___, 1997. No stop
order or equivalent order has been issued with respect to the Registration
Statement and no proceedings therefor have been initiated or, to the best
knowledge of the Primary Parties, threatened by the Commission.
(c) As of the date of the Prospectus, and at all times subsequent thereto
through and including the Closing Date, the Registration Statement complied in
all material respects with the
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Trident Securities, Inc.
Page 5
1933 Act and the 1933 Act Regulations. No order has been issued by the
Commission preventing or suspending the use of the Prospectus. No action by or
for the Commission revoking such action is pending, or to the best knowledge of
Primary Parties, threatened.
(d) As of the date of the Prospectus, and at all times subsequent thereto,
through and including the Closing Date, the Registration Statement and the
Prospectus did not and will not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading. Representations and warranties in this subsection (d)
shall not apply to statements or omissions which relate to Trident and which
were made in reliance upon and in conformity with written information furnished
to the Primary Parties by Trident, expressly for use in the Registration
Statement or the Prospectus.
(e) The MHC has filed the Conversion Application with the OTS. The
Conversion Application was approved by the OTS on __________, 1997. No stop
order or equivalent order has been issued with respect to the Conversion
Application and, to the best knowledge of the Primary Parties, no proceedings
therefor have been initiated or threatened by the OTS.
(f) The Conversion Application complies in all material respects with the
Conversion Regulations. The Prospectus, which is included in the Conversion
Application, has been approved for use by the OTS and such approval is in full
force and effect. All solicitation and marketing materials which are included in
the Conversion Application have been approved for use by the OTS and such
approval is in full force and effect. No order has been issued by the OTS
preventing or suspending the use of the Prospectus. No action by or before the
OTS revoking such approval is pending or, to the best knowledge of the Primary
Parties, threatened.
(g) The Company has filed the Holding Company Application with the OTS,
which was approved on ___________, 1997. The Holding Company Application
complies in all material respects with the Conversion Regulations.
(h) The Company has been duly incorporated and is validly existing and in
good standing under the laws of the State of Delaware, with full power and
authority to own its properties and conduct its business as described in the
Registration Statement and the Prospectus. The Certificate of Incorporation and
Bylaws of the Company comply in all material respects with applicable laws and
regulations. The Company has obtained all licenses, permits and other
governmental authorizations currently required for the conduct of its business,
except where the failure to obtain such licenses, permits or authorizations
would not have a material adverse effect upon the business or operations of the
Company. All of such licenses, permits and other governmental authorizations are
in full force and effect, and the Company is in all material respects in
compliance therewith. On the Closing Date, the Company will be duly qualified as
a foreign corporation to transact business and will be in good standing in each
jurisdiction in which its ownership of property or leasing of property or the
conduct of its business requires such qualification, unless the failure to be so
qualified in one or more of such jurisdictions would not have a material adverse
effect on the Company, taken as a whole.
(i) The Association is a stock savings association organized and validly
existing under the laws of the United States, with full power and authority to
own its properties and conduct its business as described in the Prospectus. The
Federal Stock Charter and Bylaws of the Association comply in all material
respects with applicable laws and regulations. The
<PAGE>
Trident Securities, Inc.
Page 6
Association has obtained all licenses, permits and other governmental
authorizations currently required for the conduct of its business, except where
the failure to obtain such licenses, permits or authorizations would not have a
material adverse effect upon the business or operations of the Association. All
of such licenses, permits and other governmental authorizations are in full
force and effect, and the Association is in all material respects in compliance
therewith. The deposit accounts of the Association are insured up to applicable
limits by the FDIC under the SAIF. The Association is a member of the Federal
Home Loan Bank ("FHLB") of Des Moines. The Association is duly qualified as a
foreign corporation to transact business and is in good standing or is exempt
from such qualification in each jurisdiction in which its ownership of property
or leasing of property or the conduct of its business requires such
qualification, unless the failure to be so qualified in one or more of such
jurisdictions would not have a material adverse effect on the Association, taken
as a whole.
(j) The MHC is a mutual holding company organized and validly existing
under the laws of the United States, with full power and authority to own its
properties and conduct its business as described in the Prospectus. The Charter
and Bylaws of the MHC comply in all material respects with applicable laws and
regulations. The MHC has obtained all licenses, permits and other governmental
authorizations currently required for the conduct of its business, except where
the failure to obtain such licenses, permits or authorizations would not have a
material adverse effect on the MHC, taken as a whole. All of such licenses,
permits and other governmental authorizations are in full force and effect, and
the MHC is in all material respects in compliance therewith. The MHC is duly
qualified as a foreign corporation to transact business and is in good standing
in each jurisdiction in which its ownership of property or leasing of properties
or the conduct of its business requires such qualification, unless the failure
to be so qualified in one or more of such jurisdictions would not have a
material adverse effect on the MHC, taken as a whole.
(k) The authorized capital stock of the Association consists of 1,000,000
shares of preferred stock, none of which are issued, and 4,000,000 shares of
common stock, par value $1.00 per share, 445,000 of which are owned by the MHC,
free, clear and unencumbered, and 391,400 of which are owned of record by Public
Stockholders. All issuances and sales by the Association of its securities prior
to the date hereof were exempt from registration under the 1933 Act, and all
such issuances and sales complied in all material respects with the provisions
of all applicable federal and state securities laws then in effect.
(l) The Plan has been duly and validly adopted by the Boards of Directors
of the Primary Parties. Prior to the Closing Date, the Plan will be duly and
validly approved by the requisite vote of members of the MHC and by the
requisite votes of the stockholders of the Association.
(m) Prior to the Closing Date, the offer and sale of the Shares will have
been conducted in all material respects in accordance with the Plan, the
Conversion Regulations and all other applicable laws and regulations, including
all items, conditions, requirements and provisions precedent to the Conversion
and Reorganization imposed upon the Primary Parties by the OTS, the Commission
or any other regulatory authority and in the manner described in the Prospectus;
provided, however, that no representation or warranty is made with respect to
any action on the part of Trident or its agents. To the best knowledge of the
Primary Parties, no person has sought to obtain review of the final action of
the OTS in approving the Plan or the Conversion Application pursuant to the HOLA
or any other statute or regulation.
<PAGE>
Trident Securities, Inc.
Page 7
(n) Except as disclosed in the Prospectus, neither of the Primary Parties
owns of record or beneficially any equity securities of, or an equity interest
in, any entity or business enterprise.
(o) The Primary Parties each has good title to all assets material to its
respective businesses and to those assets described in the Prospectus as owned
by it, free and clear of all liens, charges, encumbrances or restrictions,
except as set forth in the Prospectus or as are not materially significant or
important in relation to the business of the Primary Parties, taken as a whole.
All of the leases and subleases material to the business of the Primary Parties
under which any one of them holds property, including those set forth in the
Prospectus, are in full force and effect as described therein.
(p) This Agreement has been duly and validly authorized, executed and
delivered by the Primary Parties. Assuming due execution and delivery by
Trident, this Agreement constitutes the valid and legally binding obligation of
the Primary Parties, enforceable against them in accordance with its terms,
except as the enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, reorganization or similar laws relating to or affecting the
enforcement of creditors' rights or by general equity principles regardless of
whether such enforceability is considered in a proceeding in equity or at law.
(q) The Primary Parties have received (i) the opinion of KPMG Peat Marwick
LLP, to the effect that the Conversion and Reorganization will constitute a tax-
free reorganization under the Internal Revenue Code of 1986, as amended
("Code"), and (ii) the opinion of KPMG Peat Marwick LLP, to the effect that the
Conversion and Reorganization will not be a taxable transaction under the laws
of the State of Missouri; and the facts relied upon by such firm as set forth in
such opinions are accurate and complete as of the date of such opinions.
(r) The Primary Parties have all such power, authority, authorizations,
approvals and orders as may be required to enter into this Agreement, to perform
all of their respective obligations hereunder and to consummate the transactions
contemplated hereby. Without limiting the generality of the foregoing sentence,
on or before the Closing Date, the Company will have the power, authority,
authorizations, approvals and orders to issue and sell the Shares in accordance
with this Agreement, the Plan and the Prospectus.
(s) Neither of the Primary Parties is in violation of any rule or
regulation of the OTS or the FDIC or any other agency which materially and
adversely affect the condition, financial or otherwise, operations, business or
properties of the Primary Parties, taken as a whole. Neither of the Primary
Parties is subject to any directive from the OTS or the FDIC (or their
predecessors) or any other agency to make any change in the method of conducting
its business or affairs. Each of the Primary Parties has conducted its business
in material compliance with all applicable statutes and regulations (including,
without limitation, all regulations, decisions, directives and orders of the
FHLB of Des Moines, the OTS and the FDIC, or their predecessors). Except as set
forth in the Registration Statement and the Prospectus, there is not pending or,
to the best knowledge of the Primary Parties, threatened any litigation, charge,
investigation, action, suit or proceeding before or by any court, regulatory
authority or governmental agency or body which, individually or in the
aggregate, might materially affect the performance of the terms and conditions
of this Agreement or the consummation of the transactions contemplated hereby or
which, individually or in the aggregate, might result in any
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Trident Securities, Inc.
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material adverse effect on the Primary Parties, taken as a whole.
(t) The capitalization, assets, properties and business of the Primary
Parties conform in all material respects to the descriptions thereof contained
in the Prospectus as of the dates specified therein. Since such dates, there
have been no material adverse changes in either the condition, financial or
otherwise, assets, properties, operations or earnings of the Primary Parties,
taken as a whole. Neither of the Primary Parties has any material contingent
liabilities of any kind, except as set forth in the Prospectus.
(u) No material default exists, and no event has occurred which, with
notice or lapse of time, or both, would constitute a default, on the part of any
of the Primary Parties, in the due performance and observance of any term,
covenant or condition of any agreement which is material to the condition,
financial or otherwise, assets, properties or operations of the Primary Parties,
taken as a whole. Such agreements are in full force and effect. No other party
to any such agreement has instituted or, to the best knowledge of the Primary
Parties, threatened any action or proceeding wherein any of the Primary Parties
is alleged to be in default thereunder.
(v) Neither of the Primary Parties is in violation of its respective
Certificate of Incorporation or Charter, as applicable, or Bylaws or in default
in any respect in the performance of any material obligation, agreement or
condition contained in any bond, debenture, note or any other evidence of
indebtedness by which it is bound, except where such default would not
materially and adversely affect the condition, financial or otherwise, assets,
properties or operations of the Primary Parties, taken as a whole. The
execution, delivery and performance of this Agreement by the Primary Parties and
the consummation of the transactions contemplated hereby do not and will not (i)
violate or conflict with the Charter or Certificate of Incorporation, as
applicable, or Bylaws of the Primary Parties or (ii) in any respect violate,
conflict with or constitute a breach of, or a default (or an event which, with
notice or lapse of time, or both, would constitute a default), except where such
violation, conflict, breach or default would not materially and adversely affect
the condition, financial or otherwise, assets, properties or operations of the
Primary Parties, taken as a whole under (I) any agreement, indenture or other
instrument by which any of the Primary Parties is bound, or (II) any
governmental license or permit or any law, administrative regulation or
authorization, approval, court decree, injunction or order.
(w) Subsequent to the respective dates as of which information is given in
the Prospectus and before the Closing Date, except as otherwise may be
specifically provided for in this Agreement, neither of the Primary Parties will
(i) issue any securities or incur any liability or obligation, direct or
contingent for borrowed money, except (a) the shares of common stock to be
issued by the Company in the Conversion and Reorganization and (b) borrowings
from the FHLB of Des Moines and other borrowings and liabilities in the ordinary
course of business, including, but not limited to, borrowings in the form of
deposits, or (ii) enter into any other transaction not in the ordinary course of
business which is material in light of the businesses and properties of the
Primary Parties, taken as a whole.
(x) On the Closing Date, the authorized, issued and outstanding equity
capital of the Company will be within the range set forth in the Prospectus
under the caption "Capitalization."
(y) When issued in accordance with the terms of the Plan, the Shares will
be validly issued, fully paid and nonassessable, will conform in all material
respects to the description
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Page 9
thereof set forth in the Registration Statement and the Prospectus and will be
issued in compliance in all material respects with all applicable securities
laws. The issuance of the Shares is not subject to preemptive rights other than
for subscription rights granted pursuant to the Plan. Upon issuance of the
Shares thereof against payment therefor, purchasers shall have good title to
such Shares free and clear of all claims, encumbrances, security interests and
liens caused or created by any act or omission of the Company whatsoever. The
certificates evidencing the Shares will conform in all material respects to the
requirements of applicable laws and regulations.
(z) Neither of the Primary Parties has: (i) placed any securities within
the last 18 months (except for notes to evidence bank loans and mortgage-backed
securities in the ordinary course of business); (ii) had any material dealings
within the 12 months prior to the date hereof with any member of the NASD, or
any person related to or associated with such member, other than discussions and
meetings relating to the Conversion and Reorganization and routine purchases and
sales of securities for or from its portfolio; (iii) an officer or director who
has any affiliation with the NASD; (iv) entered into a financial or management
consulting agreement, except for the engagement letter attached hereto as
Exhibit B (iv) engaged any intermediary between Trident and the Company in
connection with any offering of the Shares, and no person is being compensated
in any manner for such service.
(aa) Appropriate arrangements have been made for placing the funds
received from subscriptions for Shares in a segregated interest-bearing account
with the Association until all Shares are paid for, with provision (i) for
prompt refund to subscribers if the transactions contemplated by the Plan and
the Prospectus are otherwise not consummated or (ii) for delivery to the Company
if the transactions contemplated by the Plan and the Prospectus are consummated.
(bb) No approval of any regulatory, supervisory or other public authority
is required of any of the Primary Parties in connection with the execution and
delivery of this Agreement or the issuance and sale of the Shares, except the
approval of the OTS, the Commission and the NASD and as may be otherwise
required under the securities laws of various states.
(cc) All contracts and other documents required to be filed as exhibits to
the Conversion Application and the Registration Statement have been filed with
the OTS and the Commission, respectively.
(dd) KPMG Peat Marwick LLP, the public accounting firm which has certified
the consolidated financial statements of the Association included in the
Prospectus, are independent certified public accountants within the meaning of
the Code of Professional Ethics of the American Institute of Certified Public
Accountants.
(ee) Rubin, Brown, Gornstein & Co. LLP, the public accounting firm which
has certified the financial statements of EMC not included in the Prospectus,
are independent certified public accountants within the meaning of the Code of
Professional Ethics of the American Institute of Certified Public Accountants.
(ff) Since the consummation of the MHC Reorganization, each of the Primary
Parties has (i) timely filed all required federal and state tax returns and no
deficiency has been asserted with respect to such returns by any taxing
authorities, (ii) paid all taxes that have become due,
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Trident Securities, Inc.
Page 10
and (iii) made adequate reserves for similar current tax liabilities, except
where the failure to make such filings, payments and reserves, or the assertion
of such a deficiency, would not have a material adverse effect on the Primary
Parties, taken as a whole.
(gg) The records of account holders, depositors, borrowers and other
members of the Association delivered to Trident by the Association or its agent
for use in connection with the Conversion and Reorganization are reliable and
accurate in all material respects.
(hh) RP Financial, LC. ("Appraiser"), the corporation which prepared an
appraisal of the estimated pro forma fair market value of the Common Stock, is
independent with respect to the Primary Parties within the meaning of the
Conversion Regulations.
(ii) The Primary Parties comply in all material respects with applicable
financial record keeping and reporting requirements of the Currency and Foreign
Transactions Reporting Act of 1970 as amended, and the regulations and rules
thereunder.
(jj) All supplemental sales literature, including but not limited to,
marketing materials, used by the Company in connection with the Offering, which
is required by the Conversion Regulations to be filed with the OTS or by the
1933 Act Regulations to be filed with the Commission, has been filed with and
cleared by the OTS and the SEC.
(kk) To their best knowledge, the Primary Parties comply with all laws,
rules and regulations relating to environmental protection, and neither of the
Primary Parties has been notified or is otherwise aware that any 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, except for violations which, if asserted, would not have
a material adverse affect on the Primary Parties, taken as a whole. There are no
actions, suits, regulatory investigations or other proceedings pending, or, to
the best knowledge of the Primary Parties, threatened against the Primary
Parties relating to environmental protection, nor does any of the Primary
Parties have any reason to believe any such proceedings may be brought against
any of them. To the best knowledge of the Primary Parties, 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, at or about any of the facilities
or properties owned or leased by any of the Primary Parties.
(ll) Neither of the Primary Parties, has made any payment of funds of the
Primary Parties as a loan for the purpose of purchasing the Shares (except for
the loan to be made by the Company to the ESOP).
(mm) Equality Commodity Corporation ("ECC") is a wholly owned subsidiary
of the Association; ECC is organized, validly existing and in good standing
under the laws of the State of Missouri, with full power and authority to own
its property and conduct its business and is not required to be qualified to do
business as a foreign corporation in any jurisdiction where non-qualification
has or would have a material adverse effect on the Primary Parties, taken as a
whole; ECC holds all licenses, certificates and permits from governmental
authorities necessary for the conduct of its business, except where failure to
hold such licenses, permits or authorizations would not have a material adverse
effect on the financial condition, earnings, capital, assets or properties of
the Primary Parties, taken as a whole; all of the outstanding capital stock of
ECC has been duly authorized and is fully paid and non-assessable, and is owned
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Page 11
directly by the Association, free and clear of any liens or encumbrances; the
activities of ECC are permitted to subsidiaries of a federally-chartered savings
association by the HOLA and OTS regulations.
(nn) Equality Mortgage Corporation ("EMC") is a wholly-owned subsidiary of
the Association; EMC is organized, validly existing and in good standing under
the laws of the State of Missouri, with full power and authority to own its
property and conduct its business and is not required to be qualified to do
business as a foreign corporation in any jurisdiction where non-qualification
has or would have a material adverse effect on the financial condition,
earnings, capital, assets or properties of the Primary Parties, taken as a
whole; EMC holds all licenses, certificates and permits from governmental
authorities necessary for the conduct of its business, except where failure to
hold such licenses, permits or authorizations would not have a material adverse
effect on the financial condition, earnings, capital, assets or properties of
the Primary Parties, taken as a whole; all of the outstanding capital stock of
EMC has been duly authorized and is fully paid and non-assessable, and is owned
directly by the Association, free and clear of any liens or encumbrances; the
activities of EMC are permitted to subsidiaries of a federally-chartered savings
association by the HOLA and OTS regulations.
(oo) Dutch Town Development Co. ("Dutch Town") is a wholly-owned
subsidiary of ECC; Dutch Town is organized, validly existing and in good
standing under the laws of the State of Missouri, with full power and authority
to own its property and conduct its business and is not required to be qualified
to do business as a foreign corporation in any jurisdiction where non-
qualification has or would have a material adverse effect on the financial
condition, earnings, capital, assets or properties of the Primary Parties, taken
as a whole; Dutch Town holds all licenses, certificates and permits from
governmental authorities necessary for the conduct of its business, except where
failure to hold such licenses, permits or authorizations would not have a
material adverse effect on the financial condition, earnings, capital, assets or
properties of the Primary Parties, taken as a whole; all of the outstanding
capital stock of Dutch Town has been duly authorized and is fully paid and non-
assessable, and is owned directly by ECC, free and clear of any liens or
encumbrances; the activities of Dutch Town are permitted to subsidiaries of a
federally-chartered savings association by the HOLA and OTS regulations and the
policies and practices of the OTS.
(pp) EMC and ECC are the only direct subsidiaries of the Association, and
Dutch Town is the only direct subsidiary of ECC.
(qq) The consolidated financial statements of the Association which are
included in the Registration Statement, the Conversion Application and the
Prospectus present fairly the balance sheet, statements of income, stockholders'
equity and cash flows of the Association at the respective dates thereof and for
the respective periods covered thereby, and comply as to form in all material
respects with the applicable accounting requirements of the Conversion
Regulations, Regulation S-X of the Commission, and generally accepted accounting
principles ("GAAP") consistently applied through the periods involved (except as
noted therein). Such financial statements are consistent with the most recent
financial statements and other reports filed by the Association with the OTS,
except that accounting principles employed in such regulatory filings conform to
the requirements of such authorities and not necessarily to GAAP. The other
financial, statistical and pro forma information and related notes included in
the Prospectus present fairly the information shown therein on a basis
consistent with the audited and unaudited consolidated financial statements of
the Association included in the Registration Statement and
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Trident Securities, Inc.
Page 12
the Prospectus, and as to the pro forma adjustments, the adjustments made
therein have been consistently applied on the bases described therein.
(rr) The balance sheet of Equality Mortgage Corporation ("EMC") as of
March 31, 1997 and 1996, and the related statements of income, retained earnings
and cash flows for the years ended March 31, 1997, 1996 and 1995, which were
examined and reported upon by Rubin, Brown, Gornstein & Co. LLP, independent
certified public accountants for EMC, and which are not included in the
Registration Statement and the Prospectus, have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis (except
as may be otherwise noted in the footnotes thereto) and fairly present the
consolidated financial position of EMC at such dates and the results of its
operations, its retained earnings and its cash flows for such periods.
Section 3. Representations and Warranties of Trident. Trident represents
and warrants to the Primary Parties that:
(a) Trident is registered as a broker-dealer with the Commission and no
withdrawal of its registration is pending or, to the knowledge of Trident,
threatened. Trident is in good standing with the Commission and the NASD.
(b) Trident is validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation.
(c) The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly and validly authorized by
all necessary action on the part of Trident, and this Agreement is a legal,
valid and binding obligation of Trident, enforceable in accordance with its
terms (except as the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, reorganization or similar laws relating to or affecting
the enforcement of creditors' rights generally or the rights of creditors of
registered broker-dealers accounts of whose may be protected by the Securities
Investor Protection Corporation or by general equity principles, regardless of
whether such enforceability is considered in a proceeding in equity or at law,
and except to the extent that the provisions of Sections 6 and 7 hereof may be
unenforceable as against public policy. Trident has all corporate power and
authority necessary to perform all of its obligations under this Agreement.
(d) Trident is authorized and has all licenses, approvals and permits
necessary to perform the services to be rendered by it pursuant to this
Agreement, and Trident is a registered selling agent in the jurisdictions in
which the Shares will be offered for sale and no withdrawal of its registration
is pending or, to the knowledge of Trident, threatened. Trident will remain
registered in such jurisdictions in which the Company is relying on such
registration for the sale of the Shares, until the Conversion and Reorganization
is consummated or terminated.
(e) The execution and delivery of this Agreement by Trident, the
fulfillment of the terms set forth herein and the consummation of the
transactions contemplated hereby shall not violate or conflict with the
corporate charter or bylaws of Trident or violate, conflict with or constitute a
breach of, or default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, any material agreement, indenture or other
instrument to which Trident is a party or by which it or its property is bound,
except where such events would not materially and adversely affect the financial
conditions or operations of Trident.
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Trident Securities, Inc.
Page 13
(f) Any funds received by Trident to purchase Shares will be handled in
accordance with Rule 15c2-4 under the Securities Exchange Act of 1934, as
amended ("Exchange Act").
(g) No action or proceeding before the Commission, the NASD, any state
securities commission or any state or federal court is pending, or to Trident's
best knowledge, threatened concerning Trident's activities as a broker-dealer
(provided that for this purpose, Trident shall not regard any action as
"threatened" unless the Commission, the NASD, or any state securities commission
or such court has manifested to the management of Trident or to its counsel the
present intention to initiate such action or proceeding).
(h) No action, suit, charge or proceeding is pending, or to the knowledge
of Trident, threatened, against Trident which, if determined adversely to
Trident, would have a material adverse effect upon the ability of Trident to
perform its obligations under this Agreement.
Section 4. Covenants and Agreements of the Primary Parties. The Primary
Parties, jointly and severally, covenant and agree that:
(a) The Company shall deliver to Trident, from time to time, such
number of copies of the Prospectus as Trident may reasonably request. The
Company hereby authorizes and directs Trident to use the Prospectus in any
lawful manner in connection with the offer and sale of the Shares.
(b) The MHC will notify Trident immediately upon obtaining knowledge
of the following, and confirm the notice in writing: (i) when any amendment or
supplement to the Conversion Application is filed with the OTS or when any
supplement to the Prospectus is filed with the OTS; (ii) of the issuance by the
OTS of any stop order relating to the Conversion Application or the Prospectus
or of the initiation or the threat of any proceedings for such purpose; (iii) of
the receipt of any notice with respect to the suspension of the qualification of
the Shares for offering or sale in any jurisdiction; and (iv) of the receipt of
any comments from the OTS relating to the Conversion Application or the
Prospectus. In the event the OTS enters a stop order relating to the Conversion
Application or the Prospectus at any time, the MHC will make every reasonable
effort to obtain the lifting of such order at the earliest possible moment.
(c) The Company will notify Trident immediately upon obtaining
knowledge of the following, and confirm the notice in writing: (i) when any
amendment or supplement to the Registration Statement is filed with the
Commission or when any supplement to the Prospectus is filed with the
Commission; (ii) of the issuance by the Commission of any stop order relating to
the Registration Statement or the Prospectus or of the initiation or the threat
of any proceedings for such purpose; (iii) of the receipt of any notice with
respect to the suspension of the qualification of the Shares for offering or
sale in any jurisdiction; and (iv) of the receipt of any comments from the
Commission relating to the Registration Statement or the Prospectus. In the
event the Commission enters a stop order relating to the Registration Statement
or the Prospectus at any time, the Company will make every reasonable effort to
obtain the lifting of such order at the earliest possible moment.
(d) During the time when the Prospectus is used in connection with the
offer and sale of the Shares, the Primary Parties will comply in all material
respects with all applicable requirements of the 1933 Act and the 1933 Act
Regulations, as now in effect and as hereafter
<PAGE>
Trident Securities, Inc.
Page 14
amended, as from time to time in force, so far as is necessary to permit the
continuance of offers and sales of or dealings in the Shares, in accordance with
the provisions hereof and the Prospectus. If, during the period when the
Prospectus is used in connection with the offer and sale of the Shares, any
event relating to or affecting any of the Primary Parties shall occur as a
result of which it is necessary, to amend or supplement the Prospectus in order
to make the Prospectus not false or misleading in light of the circumstances
existing at the time the Prospectus is delivered to a purchaser of the Shares,
the Primary Parties shall prepare and furnish to Trident a reasonable number of
copies of an amendment or amendments or of a supplement or supplements to the
Prospectus (in form and substance reasonably satisfactory to counsel for
Trident) which shall amend or supplement the Prospectus so that, as amended or
supplemented, the Prospectus 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 of the Shares, not misleading. The Primary Parties will
not file or use any amendment or supplement to the Conversion Application, the
Registration Statement or the Prospectus of which Trident has not first been
furnished a copy or as to which Trident shall reasonably object after having
been furnished such copy. For the purpose of this subsection (d), the Primary
Parties shall furnish such information with respect to themselves as Trident
from time to time reasonably may request.
(e) The Company will take all reasonably necessary action as may be
required to qualify or register the Shares for offer and sale by the Company, if
necessary, under the state securities or "blue sky" laws of such jurisdictions
as Trident and the Company may agree upon; provided, however, that the Company
will not be obligated to qualify as a foreign corporation under the laws of any
such jurisdiction. In each jurisdiction in which such qualification or
registration will be effected, the Company, unless Trident agrees that such
action is not necessary or advisable in connection with the distribution of the
Shares, will file and make such statements or reports as are, or reasonably may
be, required by the laws of such jurisdiction.
(f) The Company shall file with the Commission a registration
statement for the Shares under Section 12(g) of the Securities Exchange Act of
1934, as amended ("Exchange Act"), prior to the completion of the Conversion and
Reorganization and will request that such registration statement become
effective upon the completion of the Conversion and Reorganization, and the
Company will maintain the effectiveness of such registration under Section 12(g)
of the Exchange Act for not less than three years or such shorter period as may
be permitted by law.
(g) For a period of three years from the date of this Agreement or for
such shorter period of time during which the Company has a class of securities
registered under the Exchange Act, the Company will furnish the following to
Trident: (i) as soon as publicly available after the end of each fiscal year, a
copy of the Annual Report to Stockholders for such year; (ii) as soon as
publicly available, a copy of each report or definitive proxy statement of the
Company filed with the Commission under the Exchange Act or mailed to
stockholders; and (iii) from time to time, such other public information
concerning the Association and the Company as Trident may reasonably request.
(h) The Company and the Association will use the net proceeds from the
sale of the Shares in the manner set forth in the Prospectus under the caption
"Use of Proceeds."
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Trident Securities, Inc.
Page 15
(i) The Company will not deliver the Shares until each and every
condition set forth in Section 4 hereof has been satisfied in full, unless such
condition is waived in writing by Trident.
(j) The Primary Parties will take such actions and furnish such
information as are reasonably requested by Trident in order for Trident to
ensure compliance with the NASD's "Interpretation Relating to Free-Riding and
Withholding."
(k) The liquidation account for the benefit of Eligible Account
Holders and Supplemental Eligible Account Holders will be duly established and
maintained in accordance with the requirements of the OTS.
(l) The Company and the Association will not sell, issue, contract to
sell or otherwise dispose of, for a period of 90 days after the Closing Date,
without Trident's prior written consent, any shares of common stock other than
(i) the Shares, or (ii) other than in connection with any plan or arrangement
described in the Prospectus, including existing stock benefit plans.
(m) The Company will use its best efforts to (i) encourage and assist
at least three market makers to establish and maintain a market for the Shares
and (ii) list the Shares on a national or regional securities exchange or on The
Nasdaq Stock Market effective on or prior to the Closing Date.
(n) The Company and the Association will maintain appropriate
arrangements for depositing all funds received from persons mailing
subscriptions for or orders to purchase Shares in the Offerings on an interest-
bearing basis at the rate described in the Prospectus until the Closing Date and
satisfaction of all conditions precedent to the release of their obligation to
refund payments received from persons subscribing for or ordering Shares in the
Offerings in accordance with the Plan and as described in the Prospectus or
until refunds of such funds have been made to the persons entitled thereto or
withdrawal authorizations canceled in accordance with the Plan and as described
in the Prospectus. The Primary Parties will maintain such records of all funds
received to permit the funds of each subscriber to be separately insured by the
FDIC (to the maximum extent allowable) and to enable the Association to make the
appropriate refunds of such funds in the event that such refunds are required to
be made in accordance with the Plan and as described in the Prospectus.
(o) The Company will promptly take all necessary action to register as
a savings and loan holding company under the HOLA within 90 days after the
Closing Date.
(p) Neither of the Primary Parties will amend the Plan without
notifying Trident prior thereto.
(q) The Primary Parties shall assist Trident, if necessary, in
connection with the allocation of the Shares in the event of an oversubscription
and shall provide Trident with any information necessary to assist the Company
in allocating the Shares in such event ("Allocation Instructions"), and to the
best knowledge of the Primary Parties, such information shall be accurate and
reliable in all material respects.
Section 5. Conditions of Trident's Obligations. The obligations of
Trident set forth
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Trident Securities, Inc.
Page 16
in this Agreement shall be subject to the accuracy of the representations and
warranties contained in Section 2 hereof as of the date hereof and as of the
Closing Date, to the performance by the Primary Parties of their respective
covenants and obligations hereunder and to the following additional conditions:
(a) On the Closing Date, the Primary Parties shall have satisfied the
conditions precedent to, and will have conducted the Conversion and
Reorganization in all material respects in accordance with, the Plan, the
Conversion Regulations and all applicable laws, regulations, decisions and
orders, including all terms, conditions, requirements and conditions precedent
to the Conversion and Reorganization imposed by the OTS.
(b) The Registration Statement shall have been declared effective by the
Commission and the Conversion Application approved by the OTS not later than
5:30 p.m. on the date of this Agreement or, with Trident's consent, at a later
time and date. At the Closing Date, no stop order suspending the effectiveness
of the Registration Statement 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 authorization of the
Prospectus or the consummation of the Conversion and Reorganization shall have
been issued or proceedings therefor initiated or, to the best knowledge of the
Primary Parties, threatened by the Commission, the OTS, the FDIC, or any state
authority.
(c) On the Closing Date, Trident shall receive an opinion of Schiff Hardin
& Waite, Chicago, Illinois, special counsel to the Primary Parties, as to
matters of the laws of the United States and the Delaware Business Corporation
Act, as set forth in Exhibit C hereto, dated as of the Closing Date and
addressed to Trident.
In giving the foregoing opinion, such counsel may rely, as to matters of
fact, on certificates of officers of the Primary Parties and on certificates of
public officials delivered pursuant hereto For purposes of the opinion, counsel
may assume that any agreement is the valid and binding obligation of any parties
to such agreement other than the Primary Parties.
Such opinion may be governed by, and interpreted in accordance with, the
Legal Opinion Accord of the American Bar Association Section of Business Law
(1991) ("Accord"), and references in such opinion to counsel's "best knowledge"
may be limited to "actual knowledge" as defined in the Accord. Such opinion may
be limited to present statutes, regulations and judicial interpretations and to
facts as they presently exist. In rendering such opinion, counsel need assume no
obligation to revise or supplement it should the present laws be changed by
legislative or regulatory action, judicial decision or otherwise, and counsel
need express no view, opinion or belief with respect to whether any proposed or
pending legislation, if enacted, or any proposed or pending regulations or
policy statements issued by any regulatory agency, whether or not promulgated
pursuant to any such legislation, would affect the validity of the execution and
delivery by the Primary Parties of this Agreement or the issuance of the Shares.
(d) On the Closing Date, Trident shall receive an opinion of Julius H.
Berg, P.C., St. Louis, Missouri, local counsel to the Primary Parties, as to
matters of the laws of the State of Missouri, as set forth in Exhibit D hereto,
dated as of the Closing Date and addressed to Trident.
In giving the foregoing opinion, such counsel may rely, as to matters of
fact, on certificates of officers of the Primary Parties and on certificates of
public officials delivered
<PAGE>
Trident Securities, Inc.
Page 17
pursuant hereto. For purposes of the opinion, counsel may assume that any
agreement is the valid and binding obligation of any parties to such agreement
other than the Primary Parties.
Such opinion may be governed by, and interpreted in accordance with, the
Legal Opinion Accord of the American Bar Association Section of Business Law
(1991) ("Accord"), and references in such opinion to counsel's "best knowledge"
may be limited to "actual knowledge" as defined in the Accord. Such opinion may
be limited to present statutes, regulations and judicial interpretations and to
facts as they presently exist. In rendering such opinion, counsel need assume no
obligation to revise or supplement it should the present laws be changed by
legislative or regulatory action, judicial decision or otherwise, and counsel
need express no view, opinion or belief with respect to whether any proposed or
pending legislation, if enacted, or any proposed or pending regulations or
policy statements issued by any regulatory agency, whether or not promulgated
pursuant to any such legislation, would affect the validity of the execution and
delivery by the Primary Parties of this Agreement or the issuance of the Shares.
(e) On the Closing Date, Trident shall receive a letter of Schiff Hardin &
Waite, dated as of the Closing Date, addressed to Trident as set forth in
Exhibit E hereto.
(f) Counsel for Trident shall have been furnished such documents as such
counsel reasonably may require for the purpose of enabling such counsel to
review or pass upon the matters required by Trident and for the purpose of
evidencing the accuracy, completeness or satisfaction of any of the
representations, warranties or conditions herein contained, including, but not
limited to, resolutions of the Boards of Directors of the Primary Parties
regarding the authorization of this Agreement and the transactions contemplated
hereby.
(g) Prior to and at the Closing Date, in the reasonable opinion of
Trident: (i) there shall have been no material adverse change in the Primary
Parties, taken as a whole, from that as of the latest date as of which such
condition is set forth in the Prospectus except as referred to therein; (ii)
there shall have been no material transaction entered into by either of the
Primary Parties from the latest date as of which the financial condition of the
Primary Parties is set forth in the Prospectus, other than transactions referred
to or contemplated therein and transactions in the ordinary course of business;
(iii) neither of the Primary Parties shall not have received from the OTS or the
FDIC any direction (oral or written) to make any material change in the method
of conducting their respective businesses with which it has not complied (which
direction if any, shall have been disclosed to Trident) or which materially and
adversely would affect the business, operations, condition, financial or
otherwise, or income of the Primary Parties, taken as a whole; (iv) no action,
suit or proceeding, at law or in equity, or before or by any federal or state
commission, board or other administrative agency, or before any arbitrator or
arbitrators, shall be pending or, to the best knowledge of the Primary Parties,
threatened against any of the Primary Parties or affecting any of their
respective assets that would materially and adversely affect the business,
operations, financial condition or income of the Primary Parties, taken as a
whole; and (v) the Shares shall have been qualified or registered, if necessary,
for offering and sale by the Company under the securities or "blue sky" laws of
each jurisdiction upon which Trident and the Company shall have agreed.
(h) At the Closing Date, Trident shall receive a certificate of the
President and the Principal Financial Officer of each of the Primary Parties on
behalf of the Primary Parties, dated the Closing Date, to the effect that: (i)
they have carefully examined the Prospectus and, at the time the Prospectus
became authorized for use and at the Closing Date, the Prospectus did not
<PAGE>
Trident Securities, Inc.
Page 18
contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading; (ii) since the date the Prospectus
became authorized for use, no event has occurred which should have been set
forth in an amendment or supplement to the Prospectus which has not been so set
forth, including, without limitation, any material adverse change in the
business, financial condition, income or operations of the Association; (iii)
since the date the Prospectus became authorized for use, the conditions set
forth in clauses (ii) through (iv) inclusive of subsection (e) of this Section 5
have been satisfied; (iv) no order has been issued by the Commission or the OTS
to suspend the effectiveness of the Prospectus or to terminate the Offerings
and, to their best knowledge, no action for such purposes has been instituted or
threatened by the Commission or the OTS; (v) to their best knowledge, no person
has sought to obtain review of the final action of the OTS approving the Plan
pursuant to the HOLA; and (vi) all of the representations and warranties
contained in Section 2 hereof are true and correct with the same force and
effect as though expressly made on the Closing Date and all of the covenants and
obligations of the Primary Parties set forth in this Agreement have been
fulfilled.
(i) At the Closing Date, Trident shall, if it has not already received,
receive, among other documents, (i) a copy of the order from the Commission
declaring the Registration Statement effective; (ii) a copy of the letters from
the OTS approving the Conversion Application and authorizing the use of the
Prospectus; and (iii) a copy of the letter from the OTS approving the Holding
Company Application.
(j) Concurrently with the execution of this Agreement, Trident shall have
received a letter from KPMG Peat Marwick LLP, independent certified public
accountants for the Association, dated the date hereof and addressed to Trident,
in substance and form reasonably satisfactory to counsel for Trident, with
respect to the financial statements and certain financial information contained
in the Prospectus.
(k) Concurrently with the execution of this Agreement, Trident shall have
received a letter from Rubin, Brown, Gornstein & Co. LLP, independent certified
public accountants for EMC, dated the date hereof and addressed to Trident, in
substance and form reasonably satisfactory to counsel for Trident, with respect
to the financial statements and certain financial information contained in the
Prospectus.
(l) At the Closing Date, Trident shall receive a letter in form and
substance reasonably satisfactory to counsel for Trident from KPMG Peat Marwick
LLP, independent certified public accountants, dated the Closing Date and
addressed to Trident, confirming the statements made by them in the letter
delivered by them pursuant to the preceding subsection as of a specified date
not more than five (5) business days prior to the Closing Date.
(m) At the Closing Date, Trident shall receive a letter in form and
substance reasonably satisfactory to counsel for Trident from Rubin, Brown,
Gornstein & Co. LLP, independent certified public accountants for EMC, dated the
Closing Date and addressed to Trident, confirming the statements made by them in
the letter delivered by them pursuant to the preceding subsection as of a
specified date not more than five (5) business days prior to the Closing Date.
(n) All opinions, certificates, letters and documents prepared for
Trident's reliance shall be in compliance with the provisions hereof only if
they are, in the reasonable opinion of
<PAGE>
Trident Securities, Inc.
Page 19
Trident, satisfactory to Trident. Any certificates signed by an officer or
director of either of the Primary Parties prepared for Trident's reliance and
delivered to Trident or to counsel for Trident that specifically references this
Agreement, shall be deemed a representation and warranty by the Primary Parties
to Trident as to the statements made therein. If any condition to Trident's
obligations hereunder to be fulfilled prior to or at the Closing Date is not so
fulfilled, Trident may terminate this Agreement or, if Trident so elects, may
waive any such conditions which have not been fulfilled, or may extend the time
of their fulfillment. If Trident terminates this Agreement in accordance with
the foregoing, the Association shall reimburse Trident for its accountable
expenses as provided in Section 1 hereof.
Section 6. Indemnification. (a) The Primary Parties, jointly and
severally, hereby agree to indemnify and hold harmless Trident, its officers,
directors and employees and each person, if any, who controls Trident within the
meaning of Section 15 of the 1933 Act or Section 20(a) of the Exchange Act:
(i) Against any and all loss, liability, claim, damage and expense
whatsoever, including but not limited to, legal fees and expenses, reasonably
incurred by any of them in investigating, preparing to defend or defending
against any action, proceeding or claim (whether commenced or threatened) (A)
arising out of or based upon any breach of any representation or warranty by the
Primary Parties contained in this Agreement, (B) arising out of or based upon
the failure of any of the Primary Parties to fulfill any covenant or obligation
set forth in this Agreement, (C) arising out of or based upon any untrue or
alleged untrue statement of a material fact or the omission or alleged omission
of a material fact required to be stated or necessary to make not misleading any
statements contained in (I) the Registration Statement or the Prospectus or (II)
any application (including the Conversion Application and the Holding Company
Application) or other document or communication (in this Section 6, collectively
the "Application") prepared or executed by or on behalf of either of the Primary
Parties and based upon written information furnished by or on behalf of either
of the Primary Parties with the consent of either of the Primary Parties to
qualify the Shares under the securities laws of the United States or any state
or filed with the Commission or the OTS , unless such statement or omission was
made in reliance upon and in conformity with written information furnished to
the Primary Parties with respect to Trident by or on behalf of Trident expressly
for use in the Registration Statement the Prospectus or any Application, or any
amendment or supplement thereof, or (D) arising out of or based upon the
Conversion and Reorganization or the engagement of Trident under this Agreement.
This indemnity shall be in addition to any liability that any of the Primary
Parties may have to Trident otherwise;
(ii) Against any and all loss, liability, claim, damage and expense
whatsoever to the extent of the aggregate amount paid in settlement of any
litigation, investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any untrue
statement or omission referenced in subsection (i) of this Section 6(a), or any
alleged untrue statement or omission referenced in subsection (i) of this
Section 6(a), if such settlement is effected with the prior written consent of
the Primary Parties; and
(iii) Against any and all loss, liability, claim, damage and expense
whatsoever arising out of (A) the Allocation Instructions or (B) any records of
any account holders, depositors, borrowers and other members of the Association
delivered to Trident by the Association or its agents for use during the
Conversion and Reorganization.
<PAGE>
Trident Securities, Inc.
Page 20
(b) Trident hereby agrees to indemnify and hold harmless the Primary
Parties, their respective officers, directors and the employees and each person,
if any, who controls the Primary Parties within the meaning of Section 15 of the
1933 Act or Section 20(a) of the Exchange Act to the same extent as the
foregoing indemnity from the Primary Parties to Trident, but only with respect
to (A) statements or omissions, if any, made in the Prospectus, the Registration
Statement, any Application in reliance upon, and in conformity with, written
information furnished to the Primary Parties with respect to Trident by or on
behalf of Trident expressly for use in the Prospectus, the Registration
Statement, or any Application; or (B) any liability of the Primary Parties found
in a final judgment by a court of competent jurisdiction (not subject to further
appeal) to have principally and directly resulted from gross negligence or
willful misconduct of Trident. This indemnity shall be in addition to any
liability that Trident may have to the Primary Parties otherwise.
(c) Promptly after receipt by an indemnified party under this Section 5 of
notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 5, notify the indemnifying party of the commencement thereof; provided,
however, that the omission to so notify the indemnifying party will not relieve
the indemnifying party from any liability which it may have to any indemnified
party unless the failure to provide such notice to the indemnifying party
results in the forfeiture by such party of substantial rights or defenses. In
case any such action is brought against any indemnified party, and the
indemnified party notifies the indemnifying party of the commencement thereof,
the indemnifying party will be entitled to participate therein and, to the
extent that the indemnifying party may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of the indemnifying party's election so to
assume the defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section 5 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof, other than the reasonable cost of investigation, except as otherwise
provided herein. In the event the indemnifying party elects to assume the
defense of any such action and retain counsel acceptable to the indemnified
party, the indemnified party may retain additional counsel, but shall bear the
fees and expenses of such counsel, unless: (i) the indemnifying party shall have
specifically authorized the indemnified party to retain such counsel, or (ii)
the parties to such suit include such indemnifying party and the indemnified
party, and such indemnified party shall have been advised by counsel that one or
more material legal defenses may be available to the indemnified party which may
not be available to the indemnifying party, in which case the indemnifying party
shall not be entitled to assume the defense of such suit notwithstanding the
indemnifying party's obligation to bear the fees and expenses of such counsel.
In no event shall the indemnifying parties be liable for the fees and expenses
of more than one separate firm of attorneys (and any special counsel) that said
firm may retain for all indemnified parties in connection with any one action,
proceeding or claim or separate but similar or related actions, proceedings or
claims in the same jurisdiction arising out of the same general allegations or
circumstances. An indemnifying party against whom indemnity may be sought shall
not be liable to indemnify an indemnified party under this Section 5 if any
settlement of any such action is effected without such indemnifying party's
consent.
Section 7. Contribution. (a) The parties agree that the provisions of
this Section 6 shall apply to the fullest extent permitted by Sections 23A and
23B of the Federal Reserve Act.
<PAGE>
Trident Securities, Inc.
Page 21
In order to provide for just and equitable contribution in circumstances in
which the indemnity provided for in Section 6 hereof is for any reason held to
be unavailable to Trident or the Primary Parties other than in accordance with
its terms, the Primary Parties, on the one hand, and Trident, on the other,
shall contribute to the aggregate losses, liabilities, claims, damages, and
expenses of the nature contemplated by such indemnity incurred by the Primary
Parties and Trident (i) in such proportion to reflect the relative benefits
received by the Primary Parties, on the one hand, and Trident, on the other,
from the offering of the Conversion Shares or, (ii) if the allocation provided
by clause (i) in this Section 7 is not permitted by applicable law, in such
proportion as to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Primary Parties, on the one hand,
and Trident, on the other, in connection with the actions that resulted in such
losses, claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative benefits received by the Primary Parties,
on the one hand, and Trident, on the other, shall be deemed to be in the same
proportions as the total gross proceeds from the sale of the Conversion Shares
received by the Primary Parties bear to the total fees received by Trident under
this Agreement. The relative fault of the Primary Parties, on the one hand, and
Trident, on the other, shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Primary Parties or by Trident, the relative intent of the
parties, the knowledge of the parties, access to information and opportunity to
correct or prevent such statement or omission.
(b) The Primary Parties agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
or by any other method of allocation which does not take into account the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, Trident shall not be required
to contribute any amount in excess of the amount by which fees payable to
Trident pursuant to this Agreement exceed the amount of any damages which
Trident has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person adjudicated guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933
Act) shall be entitled to contribution from any person who is not adjudicated
guilty of such fraudulent misrepresentation.
Section 8. Survival of Agreements, Representations, Warranties and
Indemnities. The respective indemnities of the Primary Parties and of Trident
and the representations and warranties of the Primary Parties set forth in or
made pursuant to this Agreement shall remain in full force and effect regardless
of any termination or cancellation of this Agreement or any investigation made
by or on behalf of Trident or the Primary Parties or any controlling person or
indemnified party referred to in Section 6 hereof, and shall survive any
termination of this Agreement and/or the issuance of the Shares. Any successor
or assign of Trident or of the Primary Parties, any controlling person and any
legal representative of Trident or the Primary Parties shall be entitled to the
benefit of the respective agreements, indemnities, warranties and
representations contained in this Agreement.
Section 9. Termination. (a) The obligations of Trident pursuant to this
Agreement shall terminate upon the earliest to occur of (i) completion,
termination or abandonment of the
<PAGE>
Trident Securities, Inc.
Page 22
Plan by the Primary Parties, (ii) termination of the Offerings, or (iii) 45 days
after the completion of the Offerings unless extended by written agreement of
all parties.
(b) Notwithstanding the foregoing, Trident may terminate this Agreement by
giving notice at any time after this Agreement becomes effective, as follows:
(i) If the obligations of Trident cannot, in the reasonable opinion of
Trident, be fulfilled because of the material breach of any of the
representations or warranties contained in Section 2 hereof, the failure of the
Primary Parties to perform their covenants and obligations under this Agreement
or the failure of the Primary Parties to fulfill any of the other conditions set
forth under Section 4 hereof;
(ii) If any domestic or international event or act or occurrence has
materially disrupted the United States securities markets, such as to make
impracticable, in the reasonable opinion of Trident, proceeding with the
Offerings; or if trading on the New York Stock Exchange shall have been
suspended or if limits in prices or volumes or the manner of trading shall have
been imposed by the New York Stock Exchange; or if the United States shall have
become involved in a war or major hostilities; or if a general banking
moratorium has been declared by a state or federal authority; or if a moratorium
in foreign exchange trading by major international banks or persons has been
declared; or if the Primary Parties shall have sustained a material or
substantial loss by, but not limited to, fire, flood, accident, hurricane,
earthquake, theft, sabotage or other calamity or malicious act, whether or not
said loss shall have been insured; or if there shall have been a material
adverse change in the condition or prospects of the Primary Parties; or
(iii) If Trident elects to terminate this Agreement under any other
section of this Agreement.
(c) If Trident elects to terminate this Agreement as provided in this
Section 9(b), the Primary Parties shall be notified promptly by Trident by
telephone or telegram, confirmed by letter.
(d) (i) The Primary Parties may terminate this Agreement by giving notice
of a material breach of this Agreement by Trident at any time after this
Agreement becomes effective.
(ii) If the Primary Parties elect to terminate this Agreement as
provided in this Section 8(d), Trident shall be notified promptly by the Primary
Parties by telephone or telegram, confirmed by letter.
(e) If this Agreement is terminated for any of the reasons set forth in
this Section 8, the Primary Parties shall reimburse Trident for any expenses
incurred by Trident which are reimbursable in accordance with Section 1 hereof.
Section 10. Notices. All communications hereunder, except as herein
otherwise specifically provided, shall be in writing and:
If sent to Trident, shall be mailed, delivered or telegraphed and confirmed
by letter to:
R. Lee Burrows, Jr.
<PAGE>
Trident Securities, Inc.
Page 23
Trident Securities, Inc.
4601 Six Forks Road, 4th Floor
Raleigh, North Carolina 27609
with a copy to:
Paul M. Aguggia, Esquire
Breyer & Aguggia
1300 I Street, N.W.
Suite 470 East
Washington, D.C. 20005
If sent to the Primary Parties, shall be mailed, delivered or telegraphed
and confirmed by letter to:
Richard C. Fellhauer
President and Chief Executive Officer
Equality Savings and Loan Association, F.A.
4131 South Grand Boulevard
St. Louis, Missouri 63118
with a copy to:
Christopher J. Zinski, Esquire
Schiff Hardin & Waite
7200 Sears Tower
Chicago, Illinois 60606
Section 11. Parties. The Primary Parties shall be entitled to act and rely
on any request, notice, consent, waiver or agreement purportedly given on behalf
of Trident when the same shall have been given by the undersigned. Trident shall
be entitled to act and rely on any request, notice, consent, waiver, or
agreement purportedly given on behalf of the Primary Parties, when the same
shall have been given by the undersigned or any other officer of the Primary
Parties. This Agreement shall inure solely to the benefit of, and shall be
binding upon, Trident, the Primary Parties, and their controlling persons and
indemnified parties referred to in Section 6 hereof, and their respective
successors, legal representatives and assigns, and no other person shall have or
be construed to have any legal or equitable right, remedy or claim under, or in
respect of, or by virtue of, this Agreement or any provision herein contained.
Section 12. Closing. At the Closing Date, Trident shall submit a list of
the persons subscribing for the Shares and the number of Shares so subscribed.
The Primary Parties shall deliver to Trident in next day funds the management
fee and remaining expenses due and owing to Trident as set forth in Section 1
hereof, and the opinions and certificates required hereby and other documents
deemed reasonably necessary by Trident shall be executed and delivered to effect
the sale of the Shares as contemplated hereby and pursuant to the terms of the
Prospectus.
Section 13. Partial Invalidity. In the event that any term, provision or
covenant of this Agreement or the application thereof to any circumstance or
situation shall be invalid or unenforceable in whole or in part, the remainder
hereof and the application of such term,
<PAGE>
Trident Securities, Inc.
Page 24
provision or covenant to any other circumstance or situation shall not be
affected thereby, and each term, provision or covenant of this Agreement shall
be valid and enforceable to the full extent permitted by law. If, however, any
term, provision or covenant of this Agreement is declared invalid as
unenforceable by a court or competent jurisdiction, then the parties hereto
shall in good faith amend this Agreement to include an alternative provision
that accomplishes a similar result.
Section 13. Construction. This Agreement shall be construed in accordance
with the internal laws of the State of North Carolina (without regard to
conflicts of laws principles).
Section 14. Counterparts. This Agreement may be executed in separate
counterparts, each of which when so executed and delivered shall be an original,
but all of which together shall constitute but one and the same instrument.
* * *
<PAGE>
Trident Securities, Inc.
Page 25
If the foregoing correctly sets forth the arrangement between the Primary
Parties and Trident, please indicate acceptance thereof in the space provided
below for that purpose, whereupon this letter and Trident's acceptance shall
constitute a binding agreement.
Very truly yours,
EQUALITY BANCORP, INC.
By:
-------------------------------
Its:
-------------------------------
FIRST MISSOURI FINANCIAL, M.H.C.
By:
-------------------------------
Its:
-------------------------------
EQUALITY SAVINGS AND LOAN ASSOCIATION, F.A.
By:
-------------------------------
Its:
-------------------------------
Agreed to and accepted as of
the date first above written
TRIDENT SECURITIES, INC.
By:
-----------------------
Its:
-----------------------
<PAGE>
Trident Securities, Inc.
Page 1
EXHIBIT A
EQUALITY BANCORP, INC.
FIRST MISSOURI FINANCIAL, M.H.C.
EQUALITY SAVINGS AND LOAN ASSOCIATION, F.A.
Up to 1,729,323 Shares of Common Stock
of Equality Bancorp, Inc.
($0.01 Par Value Per Share)
Selected Dealers' Agreement
---------------------------
____________, 1997
Gentlemen:
We have agreed to assist First Missouri Financial, M.H.C., St. Louis,
Missouri ("MHC"), a federally chartered mutual holding company, and Equality
Savings and Loan Association, F.A., St, Louis, Missouri ("Association"), a
federally chartered stock savings association, in connection with the offer and
sale of up to 920,000 shares of the common stock, par value $0.01 per share
("Conversion Shares"), of Equality Bancorp, Inc., St. Louis, Missouri
("Company"), a Delaware corporation, to be issued in connection with the
conversion of the MHC from a mutual holding company to a stock holding company
and simultaneous reorganization of the Association as a wholly owned subsidiary
of the Company ("Conversion and Reorganization"), pursuant to the Home Owners'
Loan Act, as amended, and 12 C.F.R. 575.12(a). The MHC, Association and Company
are collectively referred to as the "Primary Parties."
The total number of Conversion Shares to be offered may be decreased to a
minimum of 680,000 shares and increased to a maximum of 1,058,000 shares. The
price per share has been fixed at $10.00. The Conversion Shares, the number of
shares to be issued, and certain of the terms on which they are being offered,
are more fully described in the enclosed Prospectus dated August ____, 1997
("Prospectus"). In connection with the Conversion and Reorganization, the
Company, is offering for sale such Conversion Shares, in a Subscription Offering
(as defined in the Prospectus). Any Shares not sold in the Subscription Offering
shall be offered to the general public in the Community Offering (as defined in
the Prospectus).
The Subscription and Community Offerings are being conducted under a Plan
of Conversion and Reorganization adopted on May 16, 1997 and subsequently
amended on June 30, 1997, by the Boards of Directors of the Primary Parties. The
Subscription and Community Offerings are further being conducted in accordance
with the regulations of the OTS and subject to the provisions contained in the
Plan.
A-1
<PAGE>
The Conversion Shares are also being offered in accordance with the Plan by
broker/dealers licensed by the National Association of Securities Dealers, Inc.
("NASD") which have been approved by the Primary Parties ("Approved Brokers").
We are offering the Approved Brokers (of which you are one) the opportunity
to participate in the solicitation of offers to buy the Conversion Shares, and
we shall pay you a fee in the amount of ____ percent (____%) of the dollar
amount of the Conversion Shares sold on behalf of the Company by you, as
evidenced by the authorized designation of your firm on the order form or forms
for payment therefor to the special account established by the Association for
the purpose of holding such funds. It is understood, of course, that payment of
your fee shall be made only out of compensation received by us for the
Conversion Shares sold on behalf of the Company by you, as evidenced in
accordance with the preceding sentence. As soon as practicable after the closing
date of the offering, we shall remit to you, only out of our compensation as
provided above, the fees to which you are entitled hereunder.
Each order form for the purchase of Conversion Shares must set forth the
identity and address of each person to whom the certificates for such Conversion
Shares should be issued and delivered. Such order form also must clearly
identify you firm in order for you to receive compensation. You shall instruct
any subscriber who elects to send his order form to you to make any accompanying
check payable to "Equality Bancorp, Inc."
This offer is made subject to the terms and conditions herein set forth and
is made only to Approved Brokers who are members in good standing of the NASD
who are to comply with all applicable rules of the NASD, including, without
limitation, the NASD's Interpretation With Respect to Free-Riding and
Withholding and Section 24 of Article III of the NASD's Rules of Fair Practice.
Orders for Conversion Shares shall be subject to confirmation and we,
acting on behalf of the Primary Parties, reserve the right in our unfettered
discretion to reject any order in whole or in part, to accept or reject orders
in the order of their receipt or otherwise, and to allot. Neither you nor any
other person is authorized by the Primary Parties, or by us to give any
information or make any representations other than those contained in the
Prospectus in connection with the sale of any of the Conversion Shares. No
Approved Broker is authorized to act as agent for us when soliciting offers to
buy the Conversion Shares from the public or otherwise. No Approved Broker shall
engage in any stabilizing (as defined in Rule 10b-7 promulgated under the
Securities Exchange Act of 1934) with respect to the Conversion Shares during
the offering.
We and each Approved Broker assisting in selling Conversion Shares pursuant
hereto agree to comply with the applicable requirements of the Securities
Exchange Act of 1934 and applicable state laws and regulations. Each customer-
carrying selected dealer that is not a $250,000 net capital reporting
broker/dealer agrees that it shall not use a sweep arrangement and that it shall
transmit all customer checks by noon of the next business day after receipt
thereof. In addition, we and each selected dealer confirm that the Securities
and Exchange Commission interprets Rule 15c2-8 promulgated under the Securities
Exchange Act of 1934 as requiring that a Prospectus be supplied to each person
who is expected to receive a confirmation of sale 48 house prior to delivery of
such person's order form.
We and each Approved Broker further agree that to the extent that your
customers desire to pay for shares with funds held by or to be deposited with
us, in accordance with the interpretations of the Securities and Exchange
Commission of Rule 15c2-4 promulgated under
A-2
<PAGE>
Trident Securities, Inc.
Page 3
the Securities Exchange Act of 1934, either (a) upon receipt of an executed
order form or direction to execute an order form on behalf of a customer to
forward the offering price of the Conversion Shares ordered on or before noon of
the next business day following receipt or execution of an order form by us to
the Company for deposit in a segregated account or (b) to solicit indications of
interest in which event (i) we shall subsequently contact any customer
indicating interest to confirm the interest and give instructions to execute and
return an order form or to receive authorization to execute the order form on
the customer's behalf, (ii) we shall mail acknowledgments of receipt of orders
to each customer confirming interest on the business day following such
confirmation, (iii) we shall debit accounts of such customers of the third
business day ("Debit Date") following receipt of the confirmation referred to in
(i), and (iv) we shall forward complete order forms together with such funds to
the Company on or before twelve noon on the next business day and each selected
dealer acknowledges that if the procedure in (b) is adopted, our customers'
funds are not required to be in their accounts until the Debit Date.
Unless earlier terminated by us, this Agreement shall terminate upon the
closing date of the Conversion and Reorganization. We may terminate this
Agreement or any provisions hereof any time by written or telegraphic notice to
you. Of course, our obligations hereunder are subject to the successful
completion of the Conversion and Reorganization.
You agree that at any time or times prior to the termination of this
Agreement you shall, upon our request, report to us the number of Conversion
Shares sold on behalf of the Company by you under this Agreement.
We shall have full authority to take such actions as we may deem advisable
in respect of all matters pertaining to the offering. We shall be under no
liability to you except for lack of good faith and for obligations expressly
assumed by us in this Agreement.
Upon application to us, we shall inform you as to the states in which we
believe the Conversion Shares have been qualified for sale under, or are exempt
from the requirements of, the respective blue sky laws of such states, but we
assume no responsibility or obligation as to your rights to sell Conversion
Shares in any state.
Additional copies of the Prospectus and any supplements thereto shall be
supplied in reasonable quantities upon request.
Any notice from us to you shall be deemed to have been duly given if
mailed, telephoned, or telegraphed to you at the address to which this Agreement
is mailed.
This Agreement shall be construed in accordance with the laws of the State
of North Carolina.
Please confirm your agreement hereto by signing and returning the
confirmations accompanying this letter at once to us at Trident Securities,
Inc., 4601 Six Forks Road, 4th Floor, Raleigh, North Carolina 27609. The
enclosed duplicate copy shall evidence the agreement between us.
A-3
<PAGE>
Trident Securities, Inc.
Page 4
TRIDENT SECURITIES, INC.
By:
---------------------------
Its:
---------------------------
CONFIRMED AS OF:
___________________, 1997
- ------------------------------
(Name of Dealer)
By:
-------------------------
Its:
-------------------------
A-4
<PAGE>
EXHIBIT C
---------
___________, 1997
Trident Securities, Inc.
4601 Six Forks Road, Suite 400
Raleigh, North Carolina 27609
Re: First Missouri Financial, M.H.C.
Mutual-to-Stock Conversion
-------------------------------
Ladies and Gentlemen:
We have acted as special counsel to First Missouri Financial, M.H.C., a
federally-chartered-mutual-holding company (the "MHC"), in connection with the
MHC's conversion from the mutual form to the stock form of organization, the
concurrent formation of Equality Bancorp, Inc., a Delaware corporation (the
"Company"), as the holding company for Equality Savings and Loan Association,
F.A. (the "Association"), and the issuance and sale of ______ shares of the
Company's authorized but unissued common stock, $0.01 par value (the "Common
Stock"), as more fully described in the Company's registration statement on Form
S-1, Registration No. 333-30469, as amended by pre-effective amendment no. 1
thereto (the
<PAGE>
Trident Securities, Inc.
Page 2
"Registration Statement"), and the related final prospectus dated ________, 1997
(the "Prospectus") in the form first filed under Rule 424(b) under the
Securities Act of 1933, as amended (the "1933 Act"). The MHC, the Association
and the Company are referred to herein as the Primary Parties.
This opinion is being delivered to you pursuant to Section 4(c) of that
certain Agency Agreement, dated ___________, 1997, by and among the MHC, the
Association, the Company and Trident Securities, Inc. ("Trident") (the
"Agreement"). Except as specifically defined herein, all capitalized terms used
in this letter shall have the meanings given them under the Agreement.
In connection with this opinion, we have examined the following documents:
(a) the executed Agreement;
(b) the Registration Statement and Prospectus;
(c) the Application for Conversion on Form AC and amendment thereto filed
with the Office of Thrift Supervision (the "Conversion Application");
(d) the Certificate of Incorporation of the Company;
(e) the Bylaws of the Company, certified by the Secretary of the Company;
(f) the definitive special meeting proxy statement for the special meeting
of stockholders of the Association held on ___________, 1997;
(g) a certificate of the Secretary of State of Delaware, attesting to the
continued existence and good standing of the Company in Delaware;
(h) copies of resolutions adopted by the Board of Directors of the MHC at
meetings held on _______________, copies of resolutions adopted by the Board of
Directors of the Association at meetings held on _____________ and copies of
resolutions adopted by the Board of Directors of the Company by unanimous
written consent effective _______________ and at meetings held on
____________________; and
(i) a specimen certificate of the Common Stock.
We also have examined and relied upon such other documents and instruments,
including certificates of public officials, and have made such other
investigations and inquiries as we have deemed necessary or appropriate for
purposes of this opinion.
For purposes of this opinion, we have assumed without investigation: (a)
the legal capacity of each natural person; (b) the full power and authority of
each person, other than the Primary Parties and their officers, to execute,
deliver and perform each document heretofore executed and delivered, and to do
each other act heretofore done by such person; (c) the due authorization,
execution and delivery by each person, other than the Primary Parties and their
C-2
<PAGE>
Trident Securities, Inc.
Page 3
officers, of each document heretofore executed and delivered by such person; (d)
the legality, validity, binding effect and enforceability as to each person,
other than the Primary Parties and their officers, of each document heretofore
executed and delivered, and of each other act heretofore done by such person;
(e) the genuineness of each signature (other than signatures of the officers of
the Primary Parties) on and the completeness of each document submitted to us as
an original; (f) the conformity to, and the authenticity of, the original of
each document submitted to us as a copy; (g) no modification of any provision of
any document, nor waiver of any right or remedy; and (h) no exercise of any
right or remedy other than in a commercially reasonable and conscionable manner
and in good faith.
As to the factual basis for those parts of our opinion that are stated to
be qualified with the statement "to the best of our knowledge," or "to our
knowledge" or words of similar import, we have relied upon, without independent
verification, the accuracy of the relevant facts stated in certificates or
comparable documents of officers of the Primary Parties, Equality Mortgage
Corporation ("EMC"), Equality Commodity Corporation ("ECC") and Dutch Town
Development Co. ("DTDC")(EMC, ECC and DTDC are collectively referred to herein
as the "Subsidiaries") and upon the accuracy of the representations and
warranties contained in the Agreement. As to references in our opinion to
"pending" matters or to future actions or events, such as references to "will be
complied with," or "will have" or words of similar import, we have relied upon,
without independent verification, the accuracy of the relevant facts stated in
certificates or comparable documents of officers of the Primary Parties and the
Subsidiaries. Although we have made no verification of each matter set forth
therein, nothing has come to our attention indicating that such reliance by us
or by you is not justified.
As to the opinion in paragraph (x), we have not regarded any litigation or
governmental procedure to be "threatened" unless the potential litigant or
government authority has manifested to the management of the Primary Parties or
the Subsidiaries, as the case may be, or to us, a present intention to initiate
such litigation or proceeding.
On the basis of and subject to the foregoing and the qualifications stated
below, we are of the following opinion.
(i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware,
and its Certificate of Incorporation and Bylaws comply in all material
respects with the Delaware General Corporation Law.
(ii) The Company has full power and authority to own, lease and
operate its properties and to conduct its business as such properties and
business are described in the Prospectus.
(iii) The Association is a stock savings association validly existing
under the HOLA with full power and authority to own its properties and
conduct its business as described in the Prospectus. To the best of our
knowledge, the Association has obtained all federal banking licenses,
permits and other federal banking governmental authorizations currently
required for the conduct of its business as described in the Prospectus,
all of which are in full force and effect, except where the failure to
obtain
C-3
<PAGE>
Trident Securities, Inc.
Page 4
such licenses, permits or governmental authorizations would not have
a material adverse effect on the Primary Parties, taken as a whole. The
deposit accounts of the Association are insured up to applicable limits by
the FDIC, and the Association is a member of the FHLB of Des Moines.
(iv) The MHC is a federal mutual holding company validly existing
under the HOLA with full corporate power and authority to own its
properties and conduct its business as such properties and business are
described in the Prospectus. To the best of our knowledge, the MHC has
obtained all federal banking licenses, permits and other federal banking
governmental authorizations currently required for the conduct of its
business as described in the Prospectus, all of which are in full force and
effect, except where the failure to obtain such licenses, permits or
governmental authorizations would not have a material adverse effect on the
Primary Parties, taken as a whole.
(v) Upon consummation of the Conversion and Reorganization, the
Company will have authorized and outstanding Common Stock as set forth in
the Prospectus, and the description of the Common Stock in the Prospectus
is accurate in all material respects;
(vi) The Plan complies in all material respects with the Conversion
Regulations (or appropriate waivers have been obtained) and has been duly
and validly approved and adopted by the Boards of Directors of the Primary
Parties. The Plan has been duly approved by the members of the MHC and the
stockholders of the Association. To the best of our knowledge, no person
has sought to obtain regulatory or judicial review of the final action of
the OTS in approving the Plan or the Conversion Application pursuant to the
HOLA or the Conversion Regulations.
(vii) To the best of our knowledge, the Conversion and Reorganization
will not result in the termination of insurance of the Association's
deposit accounts by the FDIC and no proceedings for the termination or
revocation of FDIC insurance of accounts are pending or threatened. The
description of the liquidation account in the Prospectus is accurate in all
material respects.
(viii) The Agreement has been duly and validly executed and delivered
by the Primary Parties. The execution and delivery of the Agreement by the
Primary Parties and the consummation of the Conversion and Reorganization
have been duly and validly authorized by all necessary corporate action on
the part of the Primary Parties. The Agreement is a legal, valid and
binding obligation of the Primary Parties, enforceable in accordance with
its terms (except as the enforceability thereof may be limited by
bankruptcy, insolvency, moratorium, reorganization, receivership,
conservatorship or similar laws relating to or affecting the enforcement of
creditors' rights generally or the rights of creditors of depository
institutions whose accounts are insured by the FDIC or savings and loan
holding companies the accounts of whose subsidiaries are insured by the
FDIC or by general equity principles, regardless of whether such
enforceability is considered in a proceeding in equity or at law, and
except to the extent that the provisions of Sections 6 and 7 of the
Agreement may be unenforceable as against public policy as to
C-4
<PAGE>
Trident Securities, Inc.
Page 5
which no opinion is expressed hereby).
(ix) The Primary Parties have all corporate power and authority
necessary to perform all of their respective obligations under the
Agreement and to consummate the Conversion and Reorganization. Subject to
the satisfaction of the conditions to the OTS' approval of the Conversion
Application and the Holding Company Application, (A) the Company has the
corporate power and authority to enable the Company to offer, issue and
sell the Shares in accordance with the Plan and the Prospectus, (B) the OTS
has approved the Holding Company Application, and (C) to the best of our
knowledge, no action has been taken or is pending and none is threatened to
revoke any such authorization or approval.
(x) Except as set forth in the Prospectus, (A) there are no pending
or, to the best of our knowledge, threatened legal or governmental
proceedings against or involving the assets of the Primary Parties that
would have a material adverse effect on the Primary Parties, taken as a
whole, (B) to the best of our knowledge, the Primary Parties are not in
violation of their respective charter and bylaws, which violation would
have a material adverse effect on the Primary Parties, taken as a whole,
and (C) to the best of our knowledge, 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 Primary Parties in any material respect in the
performance of any material obligation, agreement or condition contained in
any material contract or agreement, indenture or other instrument filed as
an exhibit to the Registration Statement, except where such a violation
would not have a material adverse effect on the Primary Parties, taken as a
whole.
(xi) The execution, delivery and fulfillment of the terms of the
Agreement and the consummation of the Conversion and Reorganization by the
Primary Parties (A) do not and will not violate or conflict with the
respective Certificate of Incorporation or Charter, as applicable, or
Bylaws of the Primary Parties or (B) to the best of our knowledge, in any
material respect, violate, conflict with or constitute a breach of, or
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under (I) any material agreement, indenture or other
instrument filed as an exhibit to the Registration Statement or (II) any
published banking law (subject to the satisfaction of certain post-
Conversion and Reorganization conditions imposed by the OTS in connection
with its approval of the Conversion Application), except where such
violation, conflict, breach or default would not have a material adverse
effect on the Primary Parties, taken as a whole.
(xii) The issuance and sale of the Shares have been duly and validly
authorized by all necessary corporate action on the part of the Company.
The Shares, upon receipt of payment and issuance in accordance with the
terms of the Plan and the Agreement, will be validly issued, fully paid,
nonassessable and, except as disclosed in the Prospectus, free of
preemptive rights, and good title thereto shall be transferred by the
Company free and clear of all claims, encumbrances, security interests and
liens created by the Company. The certificates for the Shares are in proper
form and comply in all material respects with applicable Delaware law and
OTS regulations.
C-5
<PAGE>
Trident Securities, Inc.
Page 6
(xiii) Except where appropriate waivers have been received and with
respect to certain post-Conversion and Reorganization reports or other
materials required to be filed by the Primary Parties and any other actions
required to be performed after the Closing Date, the Primary Parties have,
in all material respects, satisfied, to the best of our knowledge, the
conditions of approval of the Conversion Application and the Holding
Company Application contained in the approval letters dated
__________________, 1997 and ___________, 1997, respectively.
(xiv) Subject to the satisfaction of the post-Conversion and
Reorganization conditions in the OTS' approval of the Conversion
Application and Holding Company Application, no further approval,
authorization, consent or other order of any public board or body is
required in connection with the execution and delivery of the Agreement,
and the issuance of the Shares and consummation of the Conversion and
Reorganization, except with respect to the issuance to the Association of
its amended federal stock charter, the filing or submission of certain
required post-Conversion and Reorganization reports or other material by
the Primary Parties and as may be required under the securities laws of
various jurisdictions.
(xv) The statements in the Prospectus under the captions "Dividend
Policy," "The Conversion and Reorganization," "Regulation and Supervision,"
"Federal and State Taxation -- Federal Taxation," "Restrictions on
Acquisition of the Holding Company," "Comparison of Stockholders' Rights,"
and "Description of Capital Stock," insofar as they are, or refer to,
statements of law or legal conclusions (excluding financial data included
therein, as to which no opinion is expressed hereby), have been prepared or
reviewed by us and are correct in all material respects;
(xvi) The Registration Statement is effective under the 1933 Act, no
stop order suspending its effectiveness has been issued under the 1933 Act,
and, to the best of our knowledge, no proceedings therefor have been
threatened by the Commission.
(xvii) The Conversion Application has been conditionally approved by
the OTS, and the Prospectus has been authorized for use by the OTS. To the
best of our knowledge, no proceedings are pending by or before the OTS
seeking to revoke or rescind the orders approving the Conversion
Application or the Prospectus, nor are such proceedings threatened.
(xviii) The Conversion Application and Prospectus comply as to form in
all material respects with the requirements of the Conversion Regulations
and the rules and regulations of the OTS (except as to financial
statements, notes to financial statements, financial tables and other
financial and statistical data, including the appraisal, and information
with respect to Trident included therein, as to which an opinion is not
expressed). The Registration Statement and Prospectus comply as to form in
all material respects with the requirements of the 1933 Act and the 1933
Act Regulations (except as to financial statements, notes to financial
statements, financial tables and other financial and statistical data,
including the appraisal, and information with respect to Trident
C-6
<PAGE>
Trident Securities, Inc.
Page 7
included therein, as to which an opinion is not expressed). To the best of
our knowledge, all documents and exhibits required to be filed with the
Conversion Application and the Registration Statement have been so filed.
This opinion is being furnished to you solely for your benefit pursuant to
Section 4(c) of the Agreement. It may not be relied upon by, nor a copy of it
delivered to, any other party, without our prior written consent. This opinion
is based upon the law and our knowledge of the facts as of the date hereof, and
we assume no duty to communicate with you with respect to any matter that comes
to our attention hereafter.
The foregoing opinions are limited to the General Corporation Law of the
State of Delaware and the federal laws of the United States of America, and we
express no opinion with respect to the law of any other jurisdiction.
Very truly yours,
SCHIFF HARDIN & WAITE
By:
Christopher J. Zinski
C-7
<PAGE>
EXHIBIT D
---------
______________, 1997
Trident Securities, Inc.
4601 Six Forks Road, Suite 400
Raleigh, North Carolina 27609
Re: First Missouri Financial, M.H.C.
Mutual-to-Stock Conversion
--------------------------------
Ladies and Gentlemen:
We have acted as special counsel to First Missouri Financial, M.H.C., a
federally-chartered-mutual-holding company (the "MHC"), in connection with the
MHC's conversion from the mutual form to the stock form of organization, the
concurrent formation of Equality Bancorp, Inc., a Delaware corporation (the
"Company"), as the holding company for Equality Savings and Loan Association,
F.A. (the "Association"), and the issuance and sale of ______________ shares of
the Company's authorized but unissued common stock, $0.01 par value (the "Common
Stock").
This letter is delivered to you pursuant to Section 4(c) of that certain
Agency Agreement, dated ___________, 1997, by and among the MHC, the Company,
the Association and Trident Securities, Inc. ("Trident") (the "Agreement").
Except as specifically defined herein, all capitalized terms used in this letter
shall have the meanings given them under the Agreement.
In connection with the preparation of the S-1 Registration Statement of EBI
(Registration No. 333-30469), including the Prospectus contained therein, filed
with the Securities and Exchange Commission (the "Commission") on June 30, 1997,
and amendment thereto (the "Registration Statement"), and the Application for
Conversion filed with the Office of Thrift Supervision (the "Office") on July 1,
1997, and amendment thereto (the "Conversion Application"), we have examined
various documents and other papers and participated in conferences or
discussions with representatives of the MHC, the Company, the Association, and
Trident, in which conferences and discussions the contents of the Registration
Statement and related matters were discussed. We also have examined the
certificates and other documents delivered at the closing.
We have not certified, and are not hereby passing upon and do not hereby
assume any responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement; and we have not made an
independent investigation of facts for the purpose of rendering this letter. We
confirm, however, that in the course of our examination and during the
conferences referred to above, no facts came to our attention that lead us to
believe that the Conversion Application or the Registration Statement (except as
to financial statements, notes to financial statements, financial tables and
other financial and statistical
D-1
<PAGE>
Trident Securities, Inc.
Page 2
data, including the appraisal, and information with respect to Trident contained
therein), at the time each became effective and at the time any post-effective
amendment thereto became effective or on the date hereof, contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements made therein not misleading,
or that the Prospectus, as amended or supplemented, if amended or supplemented
(except as to financial statements, notes to financial statements, financial
tables and other financial and statistical data, including the appraisal, and
information with respect to Trident contained therein) at the time the
Registration Statement became effective or at the time the Prospectus and any
amendment or supplement to the Prospectus was filed with the Commission or the
OTS or transmitted to the Commission or the OTS for filing or on the Closing
Date, 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.
This letter is being furnished to you solely for your benefit pursuant to
Section 4(c) of the Agreement. It may not be relied upon by, nor a copy of it
delivered to, any other party, without our prior written consent. This letter is
based upon the law and our knowledge of the facts as of the date hereof, and we
assume no duty to communicate with you with respect to any matter that comes to
our attention hereafter.
Very truly yours,
SCHIFF HARDIN & WAITE
By:
----------------------
Christopher J. Zinski
D-2
<PAGE>
EXHIBIT E
---------
___________, 1997
Trident Securities, Inc.
4601 Six Forks Road, Suite 400
Raleigh, North Carolina 27609
Re: First Missouri Financial, M.H.C.
Mutual-to-Stock Conversion
-------------------------------
Ladies and Gentlemen:
We have acted as local counsel to First Missouri Financial, M.H.C., a
federally-chartered-mutual-holding company (the "MHC"), in connection with the
MHC's conversion from the mutual form to the stock form of organization, the
concurrent formation of Equality Bancorp, Inc., a Delaware corporation (the
"Company"), as the holding company for Equality Savings and Loan Association,
F.A. (the "Association"), and the issuance and sale of ______ shares of the
Company's authorized but unissued common stock, $0.01 par value (the "Common
Stock"), as more fully described in the Company's registration statement on Form
S-1, Registration No. 333-30469, as amended by pre-effective amendment no. 1
thereto (the "Registration Statement"), and the related final prospectus dated
________, 1997 (the "Prospectus") in the form first filed under Rule 424(b)
under the Securities Act of 1933, as amended (the "1933 Act"). The MHC, the
Association and the Company are referred to herein as the Primary Parties.
This opinion is being delivered to you pursuant to Section 5(d) of that
certain Agency Agreement, dated ___________, 1997, by and among the MHC, the
Association, the Company and Trident Securities, Inc. ("Trident") (the
"Agreement"). Except as specifically defined herein, all capitalized terms used
in this letter shall have the meanings given them under the Agreement.
We have examined and relied upon such other documents and instruments,
including certificates of public officials, and have made such other
investigations and inquiries as we have deemed necessary or appropriate for
purposes of this opinion.
As to the factual basis for those parts of our opinion that are stated to
be qualified with the statement "to the best of our knowledge," or "to our
knowledge" or words of similar import, we have relied upon, without independent
verification, the accuracy of the relevant facts stated in certificates or
comparable documents of officers of the Primary Parties, Equality Mortgage
Corporation ("EMC"), Equality Commodity Corporation ("ECC") and Dutch Town
Development Co. ("DTDC") (EMC, ECC and DTDC are collectively referred to herein
as the "Subsidiaries") and upon the accuracy of the representations and
warranties contained in the Agreement. As to references in our opinion to
"pending" matters or to future actions or events, such as references to "will be
complied with," or "will have" or words of similar import, we
E-1
<PAGE>
Trident Securities, Inc.
Page 2
have relied upon, without independent verification, the accuracy of the relevant
facts stated in certificates or comparable documents of officers of the Primary
Parties and the Subsidiaries. Although we have made no verification of each
matter set forth therein, nothing has come to our attention indicating that such
reliance by us or by you is not justified.
As to the opinion in paragraph (x), we have not regarded any litigation or
governmental procedure to be "threatened" unless the potential litigant or
government authority has manifested to the management of the Primary Parties or
the Subsidiaries, as the case may be, or to us, a present intention to initiate
such litigation or proceeding.
On the basis of and subject to the foregoing and the qualifications stated
below, we are of the following opinion.
(i) Each Subsidiary has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Missouri,
and each of their Articles of Incorporation and Bylaws comply in all
material respects with Missouri law.
(ii) Each Subsidiary has full power and authority to own, lease and
operate its properties and to conduct its business as such properties and
business are described in the Prospectus.
(iii) To the best of our knowledge, each Subsidiary has obtained all
licenses, permits and other governmental authorizations currently required
for the conduct of its business as described in the Prospectus, all of
which are in full force and effect, except where the failure to obtain such
licenses, permits or governmental authorizations would not have a material
adverse effect on EMC, ECC or DTDC, as applicable.
(iv) Except as set forth in the Prospectus, (A) there are no pending
or, to the best of such counsel's knowledge, threatened legal or
governmental proceedings against or involving the assets of any of the
Primary Parties or the Subsidiaries that would have a material adverse
effect on the Primary Parties, taken as a whole, and the Subsidiaries,
taken as a whole (B) to the best of our knowledge, the Primary Parties and
the Subsidiaries are not in violation of their respective charter and
bylaws, which violation would have a material adverse effect on the Primary
Parties, taken as a whole, or the Subsidiaries, taken as a whole, and (C)
to the best of our knowledge, 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 Primary Parties or the Subsidiaries in any material
respect in the performance of any material obligation, agreement or
condition contained in any material contract or agreement, indenture or
other instrument filed as an exhibit to the Registration Statement, except
where such a violation would not have a material adverse effect on the
Primary Parties, taken as a whole, and the Subsidiaries, taken as a whole.
(v) The issuance of the capital stock of ECC and EMC to the
Association and the issuance of capital stock of DTDC to ECC have been duly
and validly authorized by all necessary corporate action on the part of the
EMC, ECC and DTDC, and is validly issued, fully paid, nonassessable and
good title thereto has be transferred by ECC, EMC and DTDC, free and clear
of all claims, encumbrances, security interests and liens
E-2
<PAGE>
Trident Securities, Inc.
Page 3
created by any of them.
(vi) The statements in the Prospectus under the caption "Federal and
State Taxation -- State Taxation" are correct in all material respects.
This opinion is being furnished to you solely for your benefit pursuant to
Section 4(c) of the Agreement. It may not be relied upon by, nor a copy of it
delivered to, any other party, without our prior written consent. This opinion
is based upon the law and our knowledge of the facts as of the date hereof, and
we assume no duty to communicate with you with respect to any matter that comes
to our attention hereafter.
The foregoing opinions are limited to the laws of the State of Missouri,
and we express no opinion with respect to the law of any other jurisdiction.
Very truly yours,
JULIUS A. BERG, P.C.
By:
Julius A. Berg
E-3
