[Sandler O’Neill + Partners, L.P.letterhead]
Exhibit 10.5
[Sandler O’Neill + Partners, L.P. letterhead]
January 3, 2014
Mr. N. Alan Anthony
President and Chairman of the Board of Directors
Midstate Community Bank
6810 York Road
Baltimore, MD 21212
Dear Mr. Anthony:
We understand that the Board of Directors of Midstate Community Bank (the “Bank”) is considering the adoption of a Plan of Conversion (the “Plan”), pursuant to which the Bank will be converted from a mutual bank to full stock holding company form, and shares of the common stock (the “Common Stock”) of the proposed new holding company for the Bank (the “Holding Company”) will be offered and sold to the Bank’s eligible account holders in a Subscription Offering, to members of the Bank’s community and the public in a Community Offering and, under certain circumstances, to the general public in a Syndicated Community Offering (collectively, the “Offering”). The Bank and the Holding Company are collectively referred to herein as the “Company.” Sandler O’Neill & Partners, L.P. (“Sandler O’Neill”) is pleased to act as records management agent for the Company in connection with the Offering. This letter is to confirm the terms and conditions of our engagement.
SERVICES AND FEES
In our role as records management agent, we anticipate that our services will include the services outlined below, each as may be necessary and as the Company may reasonably request:
I. | Consolidation of Accounts |
II. | Design and Preparation of Stock Order Forms |
III. | Organization and Supervision of the Conversion Center |
IV. | Subscription Services |
Each of these services is further described in Appendix A to this agreement.
Mr. N. Alan Anthony
January 3, 2014
Page 2
FEES
For its services hereunder, the Company agrees to pay Sandler O’Neill a fee of $10,000. This fee is based upon the requirements of current regulations and the Plan as currently contemplated. Any unusual or additional items or duplication of service required as a result of a material change in the regulations or the Plan or a material delay or other similar events may result in extra charges that will be covered in a separate agreement if and when they occur.
All fees under this agreement shall be payable in cash, as follows: (a) $5,000 payable upon execution of this agreement; and (b) the balance upon completion of the conversion.
COSTS AND EXPENSES
In addition to any fees that may be payable to Sandler O’Neill hereunder, the Company agrees to reimburse Sandler O’Neill, upon request made from time to time, for its reasonable out-of-pocket expenses incurred in connection with its engagement hereunder, regardless of whether the Offering is consummated, including, without limitation, travel, lodging, meals, telephone, postage, listings, forms and other similar expenses, up to a maximum of $30,000. It is understood that all expenses associated with the operation of the Conversion Center (e.g., postage, telephones, supplies, temporary employees, etc.) will be borne by the Company. The provisions of this paragraph are not intended to apply to or in any way impair the indemnification provisions of this agreement.
RELIANCE ON INFORMATION PROVIDED
The Company will provide Sandler O’Neill with such information as Sandler O’Neill may reasonably require to carry out its duties hereunder. The Company recognizes and confirms that Sandler O’Neill (a) will use and rely on such information in performing the services contemplated by this agreement without having independently verified the same, and (b) does not assume responsibility for the accuracy or completeness of the information. The Company will also inform Sandler O’Neill within a reasonable period of time of any changes in the Plan that require changes in Sandler O’Neill’s services. If a substantial expense results from any such change, the parties shall negotiate an equitable adjustment in the fee.
LIMITATIONS
Sandler O’Neill, as records management agent hereunder, (a) shall have no duties or obligations other than those specifically set forth herein; (b) will be regarded as making no representations and having no responsibilities as to the validity, sufficiency, value or genuineness of any order form or any stock certificates or the shares represented thereby, and will not be required to and will make no representations as to the validity, value or genuineness of the offer; (c) shall not be liable to any person or entity, including the Company, by reason of any error of judgment or for any act done by it in good faith, or for any mistake of law or fact in connection with this agreement and the performance hereof unless caused by or arising out of its own willful misconduct, bad faith or gross negligence; (d) will not be obliged to take any legal action hereunder which might in its judgment involve any expense or liability, unless it shall have been furnished with reasonable indemnity satisfactory to it; and (e) may rely on and shall be protected in acting in reliance upon any certificate, instrument, opinion, notice, letter, telex, telegram, or other document or security delivered to it and in good faith believed by it to be genuine and to have been signed by the proper party or parties.
Mr. N. Alan Anthony
January 3, 2014
Page 3
Anything in this agreement to the contrary notwithstanding, in no event shall Sandler O’Neill be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if Sandler O’Neill has been advised of the likelihood of such loss or damage and regardless of the form of action.
INDEMNIFICATION
The Company agrees to indemnify and hold Sandler O’Neill and its affiliates and their respective partners, directors, officers, employees, agents and controlling persons (Sandler O’Neill and each such person being an “Indemnified Party”) harmless from and against any and all losses, claims, damages and liabilities, joint or several, to which such Indemnified Party may become subject under applicable federal or state law, or otherwise, related to or arising out of the engagement of Sandler O’Neill pursuant to, and the performance by Sandler O’Neill of the services contemplated by, this letter, and will reimburse any Indemnified Party for all expenses (including reasonable counsel fees and expenses) as they are incurred, including expenses incurred in connection with the investigation of, preparation for or defense of any pending or threatened claim or any action or proceeding arising therefrom, whether or not such Indemnified Party is a party. The Company will not be liable under the foregoing indemnification provision to the extent that any loss, claim, damage, liability or expense is found in a final judgment by a court of competent jurisdiction to have resulted primarily from Sandler O’Neill’s willful misconduct, bad faith or gross negligence.
MISCELLANEOUS
The following addresses shall be sufficient for written notices to each other:
If to you: | Midstate Community Bank | |
6810 York Road | ||
Baltimore, MD 21212 | ||
Attention: Mr. N. Alan Anthony | ||
If to us: | Sandler O’Neill & Partners, L.P. | |
1251 Avenue of the Americas, 6th Floor | ||
New York, New York 10020 | ||
Attention: General Counsel |
Mr. N. Alan Anthony
January 3, 2014
Page 4
The Agreement and appendix hereto constitute the entire Agreement between the parties with respect to the subject matter hereof and can be altered only by written consent signed by the parties. This Agreement is governed by the laws of the State of New York.
Please confirm that the foregoing correctly sets forth our agreement by signing and returning to Sandler O’Neill the duplicate copy of this letter enclosed herewith.
Very truly yours, | ||||
SANDLER O’NEILL & PARTNERS, L.P. | ||||
By: | Sandler O’Neill & Partners Corp., | |||
the sole general partner | ||||
By: | /s/ William L. Boyan III | |||
William L. Boyan III | ||||
Authorized Signatory | ||||
Accepted and agreed to as of | ||||
the date first above written: | ||||
MIDSTATE COMMUNITY BANK | ||||
By: | /s/ N. Alan Anthony | |||
N. Alan Anthony | ||||
President and Chairman of the Board of Directors |
APPENDIX A
OUTLINE OF RECORDS MANAGEMENT AGENT SERVICES
I. | Management of the Offering and Customer Voting Processes |
1. | Assist in developing a Bank Customer proxy solicitation plan |
2. | Prepare procedures for processing Bank Customer proxy votes, stock orders, deposit account withdrawals and cash, and for handling requests for Offering Materials. |
II. | Consolidation of Deposit Accounts/Vote Calculation |
1. | Consolidate files in accordance with regulatory guidelines and create central file. |
2. | Our EDP format will be provided to your IT representatives. |
III. | Design and Preparation of Stock Order Forms |
1. | Assist in designing stock order forms for ordering stock and related marketing materials. |
2. | Prepare deposit account holder data for stock order forms. |
IV. | Organization and Supervision of Conversion Center |
1. | Advising on physical organization of the Conversion Center, including materials requirements. |
2. | Assist in training of all Bank/temporary personnel who will staff the Conversion Center. |
3. | Establish processing/reporting procedures for order forms. |
4. | On-site supervision of the Conversion Center during the offering period. |
V. | Subscription Services |
1. | Produce list of depositors by state (Blue Sky report). |
2. | Production of subscription rights and research books. |
3. | Stock order form processing. |
4. | Acknowledgment letter to confirm receipt of stock order. |
5. | Daily reports and analysis. |
6. | Proration calculation and share allocation in the event of an oversubscription. |
7. | Produce charter shareholder list. |
8. | Interface with transfer agent for stock certificate issuance. |
9. | Refund and interest calculations. |
10. | Confirmation letter to confirm purchase of stock. |
11. | Notification of full/partial rejection of orders. |
12. | Production of 1099/Debit tape. |
A-1 |