APPENDIX A RECORDS AGENT SERVICES
[LETTERHEAD OF SANDLER ONEILL + PARTNERS, L.P.] | Exhibit 1.1 |
September 6, 2012
Boards of Directors
United Community MHC
United Community Bancorp
United Community Bank
92 Walnut Street
Lawrenceburg, IN 47025
Ladies and Gentlemen:
We understand that the Boards of Directors of United Community MHC (MHC) and its subsidiaries, United Community Bancorp (UCBA) and United Community Bank (the Bank), have previously adopted a Plan of Conversion, dated March 10, 2011 and amended and restated as of May 12, 2011, and which is proposed to be amended and restated in its entirety as of September 6, 2012 (the Plan), pursuant to which the Company will be converted from mutual holding company form to full stock holding company form and all of the shares of UCBA currently outstanding (other than shares held by the MHC) will be exchanged for shares of common stock of a successor stock holding company to be formed in connection with the reorganization (the Holding Company). Concurrently with the reorganization, the Holding Company also intends to offer and sell certain shares of common stock (the Shares) in a public offering. The MHC, UCBA, the Holding Company and the Bank are sometimes collectively referred to herein as the Company and their respective Boards of Directors are collectively referred to herein as the Board.
Under the terms of the Plan and applicable regulations, the Shares will be offered first to eligible members of the MHC and the Companys tax-qualified employee stock benefit plans in a Subscription Offering and, concurrently and subject to the prior rights of eligible members, to the public in a Direct Community Offering (collectively, the Subscription and Direct Community Offering), with a preference given in the Direct Community Offering to UCBAs existing shareholders and residents of the Banks community. Shares not subscribed for in the Subscription and Direct Community Offering will be offered to the general public in a Syndicated Community Offering or an Underwritten Public Offering (referred to herein collectively as the Syndicated Offering and, together with the Subscription and Direct Community Offering, the Offering). Sandler ONeill & Partners, L.P. (Sandler ONeill) is pleased to assist the Company with the Offering and in connection therewith entered previously into a letter agreement with the Company dated February 11, 2011 and amended by letter dated May 11, 2011 (the 2011 Engagement Letter). This letter is to re-confirm the terms and conditions of our engagement and amends and restates in its entirety the 2011 Engagement Letter.
Boards of Directors
United Community MHC
United Community Bancorp
United Community Bank
September 6, 2012
Page 2
Marketing Agent Services
In connection with our engagement, we anticipate that our services will include the following:
1. | Consulting as to the financial and securities marketing implications of the Plan; |
2. | As requested, reviewing with the Board the financial impact of the Offering on the Company, based upon the independent appraisers appraisal of the common stock of the Holding Company; |
3. | Reviewing all offering documents, including the Prospectus, stock order forms and related offering materials (it being understood that preparation and filing of such documents will be the responsibility of the Company and its counsel); |
4. | Assisting in the design and implementation of a marketing strategy for the Offering; |
5. | Assisting management in scheduling and preparing for meetings with potential investors and other broker-dealers in connection with the Offering; and |
6. | Providing such other general advice and assistance as may be reasonably necessary to promote the successful completion of the Offering. |
Sandler ONeill will act as exclusive marketing agent for the Company in the Subscription and Direct Community Offering and will serve as sole manager of the Syndicated Offering. Sandler ONeill may also seek to form a syndicate of registered dealers to assist in the Syndicated Offering (all such registered dealers participating in the Syndicated Offering, including Sandler ONeill, the Syndicate Member Firms). Sandler ONeill will consult with the Company in selecting the Syndicate Member Firms and the extent of their participation in the Offering. Pursuant to the terms of the Plan, Sandler ONeill will endeavor to distribute the Shares among dealers in a fashion that best meets the distribution objectives of the Company and the requirements of the Plan, which may result in limiting the allocation of stock to certain Syndicate Member Firms. It is understood that in no event shall any Syndicate Member Firm be obligated to take or purchase any Shares in the Offering unless, and only to the extent agreed to, in any Underwriting Agreement entered into by any such Syndicate Member Firm in an Underwritten Public Offering.
Marketing Agent Fees
If the Offering is consummated, the Company agrees to pay Sandler ONeill for its marketing
Boards of Directors
United Community MHC
United Community Bancorp
United Community Bank
September 6, 2012
Page 3
agent services a fee of 1.00% of the aggregate Actual Purchase Price of all Shares sold in the Subscription and Direct Community Offering, excluding Shares purchased by or on behalf of (i) any employee benefit plan or trust of the Company established for the benefit of its directors, officers and employees, (ii) any charitable foundation established or maintained by the Company (or any shares contributed to such charitable foundation), and (iii) any director, officer or employee of the Company or members of their immediate families (whether directly or through a personal trust).
With respect to any Shares sold in any Syndicated Community Offering, the Company agrees to pay (a) a management fee of 1.00% of the aggregate Actual Purchase Price of all Shares sold in the Syndicated Community Offering, which shall be paid to Sandler ONeill, and (b) a selling concession on each Share sold in the Syndicated Community Offering, which shall not exceed 4.50% of the Actual Purchase Price of the Shares, which shall be paid to the Syndicate Member Firm credited with selling such Shares.
With respect to any Shares sold in any Underwritten Public Offering, the Company agrees to pay an aggregate fee of 5.50% of the aggregate Actual Purchase Price of all Shares sold in the Underwritten Public Offering, which shall be paid to Sandler ONeill and the Syndicate Member Firms.
For purposes of this letter, the term Actual Purchase Price shall mean the price at which the Shares are sold in the Offering. It is understood and agreed that no fee shall be paid with respect to any shares issued to minority shareholders in exchange for their current shares as a result of the reorganization. All marketing agent fees payable hereunder shall be payable in cash at the time of the closing of the Offering.
Records Agent Services and Fees
Sandler ONeill also agrees to serve as records management agent for the Company in connection with the Offering and to assist the Company in its solicitation of proxies in connection with the special meeting of members to consider and vote upon the conversion and reorganization. In this role, we anticipate that our services will include the services outlined below, each as may be necessary and as the Company may reasonably request:
1. | Consolidation of Deposit Accounts and Vote Calculation; |
2. | Design and Preparation of Proxy Forms for Member Vote and Stock Order Forms for the Subscription and Direct Community Offering; |
3. | Organization and Supervision of the Conversion Center; |
4. | Coordination of Proxy Solicitation of Members and Special Meeting Services; and |
5. | Subscription Services. |
Boards of Directors
United Community MHC
United Community Bancorp
United Community Bank
September 6, 2012
Page 4
Each of these services is further described in Appendix A to this agreement. It is understood and agreed that proxy solicitation and tabulation for the required stockholder vote will be provided separately by another agent of the Company.
For its records management and proxy solicitation/subscription services hereunder, the Company agrees to pay Sandler ONeill a fee of $30,000. In recognition that these services are administrative in nature and a substantial portion of the services will be performed prior to the commencement of the offering (records consolidation) or are not directly related to the offering (proxy solicitation), the Company agrees that (a) $15,000 of the fee shall be payable upon execution of this agreement by the Company, which has been paid and is non-refundable, (b) $7,500 shall be payable on the mailing of proxy and subscription materials to the MHCs members, and (c) $7,500 shall be payable on completion of the special meeting of members or, if the special meeting is not held as a result of a termination of the conversion, at the time of termination. 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, resolicitation or other similar events may result in extra charges that will be covered in a separate agreement if and when they occur.
The Company will furnish Sandler ONeill with such information as Sandler ONeill reasonably believes appropriate to its assignment (all such information so furnished being the Records). The Company recognizes and confirms that Sandler ONeill (a) will use and rely primarily on the Records without having independently verified the same, and (b) does not assume responsibility for the accuracy or completeness of the Records. Sandler ONeill, as Records 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, firm or corporation 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.
Expenses
In addition to any fees that may be payable to Sandler ONeill hereunder and the expenses to be borne by the Company pursuant to the following paragraph, the Company agrees to reimburse Sandler
Boards of Directors
United Community MHC
United Community Bancorp
United Community Bank
September 6, 2012
Page 5
ONeill, 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, legal fees and expenses, travel and syndication expenses, up to a maximum of $200,000; provided, however, that Sandler ONeill shall document such expenses to the reasonable satisfaction of the Company. In the event that a resolicitation of subscribers is required, this expense cap shall be increased to $220,000. The provisions of this paragraph are not intended to apply to or in any way impair the indemnification provisions of this letter.
As is customary, the Company will bear all other expenses incurred in connection with the Offering and the Conversion Center, including, without limitation, (a) the cost of obtaining all securities and bank regulatory approvals, including any required FINRA filing fees; (b) the cost of printing and distributing the offering materials; (c) the costs of blue sky qualification (including fees and expenses of blue sky counsel) of the Shares in the various states; (d) listing fees; (e) all fees and disbursements of the Companys counsel, accountants and other advisors; and (f) the establishment and operational expenses for the Conversion Center (e.g., postage, telephones, supplies, temporary employees, etc.). In the event Sandler ONeill incurs any such fees and expenses on behalf of the Company, the Company will reimburse Sandler ONeill for such fees and expenses whether or not the Offering is consummated.
Due Diligence Review
Sandler ONeills obligation to perform the services contemplated by this letter shall be subject to the satisfactory completion of such investigation and inquiries relating to the Company and its directors, officers, agents and employees as Sandler ONeill and its counsel in their sole discretion may deem appropriate under the circumstances. In this regard, the Company agrees that, at its expense, it will make available to Sandler ONeill all information that Sandler ONeill requests, and will allow Sandler ONeill the opportunity to discuss with the Companys management the financial condition, business and operations of the Company. The Company acknowledges that Sandler ONeill will rely upon the accuracy and completeness of all information received from the Company and its directors, officers, employees, agents, independent accountants and counsel.
Blue Sky Matters
Sandler ONeill and the Company agree that the Companys counsel shall serve as counsel with respect to blue sky matters in connection with the Offering. The Company shall cause such counsel to prepare a Blue Sky Memorandum related to the Offering, including Sandler ONeills participation therein, and shall furnish Sandler ONeill a copy thereof addressed to Sandler ONeill or upon which such counsel shall state Sandler ONeill may rely.
Boards of Directors
United Community MHC
United Community Bancorp
United Community Bank
September 6, 2012
Page 6
Confidentiality
Except as contemplated in connection with the performance of its services under this agreement, as authorized by the Company or as required by law, regulation or legal process, Sandler ONeill agrees that it will treat as confidential all material, non-public information relating to the Company obtained in connection with its engagement hereunder (the Confidential Information); provided, however, that Sandler ONeill may disclose such information to its agents, consultants and advisors who are assisting or advising Sandler ONeill in performing its services hereunder, provided they have agreed to be bound by the terms and conditions of this paragraph. As used in this paragraph, the term Confidential Information shall not include information which (a) is or becomes generally available to the public other than as a result of a disclosure by Sandler ONeill, (b) was available to Sandler ONeill on a non-confidential basis prior to its disclosure to Sandler ONeill by the Company, or (c) becomes available to Sandler ONeill on a non-confidential basis from a person other than the Company who is not otherwise known to Sandler ONeill to be bound not to disclose such information pursuant to a contractual, legal or fiduciary obligation.
Indemnification
The Company agrees to indemnify and hold Sandler ONeill and its affiliates and their respective partners, directors, officers, employees, agents and controlling persons within the meaning of Section 15 of the Securities Act of 1933 or Section 20 of the Securities Exchange Act of 1934 (Sandler ONeill 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 Offering or the engagement of Sandler ONeill pursuant to, or the performance by Sandler ONeill of the services contemplated by, this letter, and will reimburse any Indemnified Party for all expenses (including reasonable legal 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; provided, however, that the Company shall only be obligated to pay for one separate counsel (in addition to any required local counsel) in any one action or proceeding or group of related actions or proceedings for all Indemnified Parties collectively, and provided further that the Company will not be liable in any such case to the extent that any such loss, claim, damage, liability or expense (a) arises out of or is based upon any untrue statement of a material fact or the omission of a material fact required to be stated therein or necessary to make not misleading any statements contained in any final prospectus, or any amendment or supplement thereto, made in reliance on and in conformity with written information furnished to the Company by Sandler ONeill expressly for use therein, or (b) is primarily attributable to the gross negligence, willful misconduct or bad faith of Sandler ONeill. If the foregoing indemnification is
Boards of Directors
United Community MHC
United Community Bancorp
United Community Bank
September 6, 2012
Page 7
unavailable for any reason other than for the reasons stated in subparagraph (a) or (b) above, the Company agrees to contribute to such losses, claims, damages, liabilities and expenses in the proportion that its financial interest in the Offering bears to that of Sandler ONeill.
The Company agrees to notify Sandler ONeill promptly of the assertion against it or any other person of any claim or the commencement of any action or proceeding relating to any transaction contemplated by this agreement.
Miscellaneous
The Company hereby acknowledges and agrees that the financial models and presentations used by Sandler ONeill in performing its services hereunder have been developed by and are proprietary to Sandler ONeill and are protected under applicable copyright laws. The Company agrees that it will not reproduce or distribute all or any portion of such models or presentations without the prior written consent of Sandler ONeill.
Sandler ONeill and the Company agree that (a) except as set forth in clause (b) below, the foregoing represents the general intention of the Company and Sandler ONeill with respect to the services to be provided by Sandler ONeill in connection with the Offering, which will serve as a basis for Sandler ONeill commencing activities, and (b) the only legal and binding obligations of the Company and Sandler ONeill with respect to the Offering shall be (i) the obligations set forth under the captions Records Agent Services and Fees, Expenses, Confidentiality and Indemnification, and (ii) as set forth in a duly negotiated and executed definitive Agency Agreement and, if applicable, definitive Underwriting Agreement, to be entered into prior to the commencement of the Subscription and Direct Community Offering, in the case of the Agency Agreement, and prior to the commencement of the Underwritten Public Offering, in the case of any Underwriting Agreement, relating to the services of Sandler ONeill in connection with the Offering. Such Agency Agreement and, as applicable, Underwriting Agreement, shall be in form and content satisfactory to Sandler ONeill and the Company and their respective counsel and shall contain standard indemnification and contribution provisions consistent herewith. For the avoidance of doubt, in the event that Sandler ONeills engagement hereunder is terminated for any reason, the Company shall not be obligated to pay any fees to Sandler ONeill in connection with Sandler ONeills marketing agent or records agent services and shall only be responsible for the reimbursement of Sandler ONeills documented out of pocket expenses incurred in connection with its engagement hereunder pursuant to the Expenses section above, including the expense cap contained therein.
Sandler ONeills execution of such Agency Agreement and, as applicable, Underwriting Agreement, shall also be subject to (a) Sandler ONeills continued satisfaction with its investigation of
Boards of Directors
United Community MHC
United Community Bancorp
United Community Bank
September 6, 2012
Page 8
the Companys business, financial condition and results of operations, (b) preparation of offering materials that are satisfactory to Sandler ONeill, (c) compliance with all relevant legal and regulatory requirements to the reasonable satisfaction of Sandler ONeill, (d) agreement that the price established by the independent appraiser for the Offering is reasonable, and (e) market conditions at the time of the proposed Offering. Sandler ONeill may terminate this agreement if such Agency Agreement is not entered into prior to December 31, 2012.
This Agreement constitutes 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 shall be construed and enforced in accordance with the laws of the State of New York, without regard to the conflicts of laws principles thereof.
Please confirm that the foregoing correctly sets forth our agreement by signing and returning to Sandler ONeill the duplicate copy of this letter enclosed herewith.
Very truly yours, | ||
SANDLER ONEILL & PARTNERS, L.P. | ||
By: | Sandler ONeill & Partners Corp., | |
the sole general partner | ||
By: | /s/ Catherine A. Lawton | |
Catherine A. Lawton | ||
An officer of the Corporation |
Accepted and agreed to as of
the date first written above:
UNITED COMMUNITY MHC
UNITED COMMUNITY BANCORP
UNITED COMMUNITY BANK
By: | /s/ William F. Ritzmann | |
William F. Ritzmann | ||
President and Chief Executive Officer |
APPENDIX A
RECORDS AGENT SERVICES
I. | 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 data processing people. |
3. | Vote calculation. |
II. | Design and Preparation of Member Proxy and Stock Order Forms |
1. | Assist in designing member proxies and stock order forms for voting and ordering stock. |
2. | Prepare deposit account holder data for proxy cards and stock order forms (stockholder data to be supplied by Companys transfer agent). |
III. | Organization and Supervision of Conversion Center |
1. | Advising on physical organization of the Conversion Center, including materials requirements. |
2. | Assist in the training of all Bank personnel and temporary employees who will be staffing the Conversion Center. |
3. | Establish reporting procedures. |
4. | On-site supervision of Conversion Center during solicitation/subscription offering period. |
IV. | Coordination of Proxy Solicitation of Members and Special Meeting Services |
1. | Coordinate proxy solicitation, and interface with proxy tabulator. |
2. | Act as or support inspector of election, it being understood that Sandler ONeill will not act as inspector of election in the case of a contested election. |
3. | Produce final report of vote. |
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. |