Exhibit 1.1
EMCLAIRE FINANCIAL CORPORATION
200,800 Shares
(subject to increase to 30,000 shares)
at $13.50 per Share
COMMON STOCK
(Par Value $1.25 Per Share)
AGENCY AGREEMENT
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Hopper Soliday & Co., Inc.
1703 Oregon Pike
Lancaster, PA 17601
Gentlemen:
Emclaire Financial Corp. proposes to issue and sell to the public 200,800
shares of the Company's $1.25 par value per share Common Stock (the "Common
Stock"), subject to an Oversubscription Reserve (as defined herein) of 30,000
shares, in a Community Offering and a Public Offering (collectively, the
"Offering") as described below. This is to confirm the arrangements with respect
to the sale of the shares through the Agent on a best effort basis.
During the period between the date of this Agreement and COX Date* (the
"Community Offering Expiration Date") the Company will offer shares of Common
Stock for sale to persons residing in the Counties of Venango, Clarion, Butler
and Armstrong, Pennsylvania (the "Community Offering"). For a period of 15 days
following the Community Offering Expiration Date, the Company will offer shares
of Common Stock for sale to the general public (the "Public Offering"). The
Community Offering and the Public Offering are referred to herein collectively
as the "Offering". The Company, with the consent of the Agent, may extend the
period of the Public Offering for up to an additional 15 days. The last day of
the Public Offering period, as it may be extended, is referred to herein as the
Public Offering Termination Date. In the Offering, the minimum subscription per
investor will be 100 shares and the maximum subscription per investor will be
1,000 shares, subject to the waiver of such requirements by the Company.
The Company, in its sole discretion, to the extent that the
200,800 shares of Common Stock to be offered and sold pursuant to the Offering
are over subscribed, may increase the total number of shares of Common Stock
available in the Offering by 30,000 shares (the "Oversubscription Reserve"). The
200,800 shares to be offered and sold pursuant to the Offering, together with
the 30,000 shares constituting the Oversubscription Reserve, shall be
collectively referred to herein as the "Shares".)
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form SB-2 (File No. Registration #)
(the "Registration Statement") containing a prospectus relating to the Offering,
for the registration of the Shares under the Securities Act of 1933, as amended
(the "1933 Act"), and has filed such amendments thereto, if any, as may have
been required to the date hereof. The Registration Statement has been declared
effective by the Commission. The prospectus included in the Registration
Statement when the Registration Statement became effective is hereinafter called
the "Prospectus," except that if the prospectus filed by the Company pursuant to
Rule 424(b) of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations") differs from the prospectus included in the
Registration Statement when the Registration Statement became effective, the
term "Prospectus" shall refer to the prospectus filed pursuant to Rule 424(b)
from and after the time said prospectus is filed with or mailed for filing to
the Commission. The date on which the Registration Statement was declared
effective by the Commission is hereinafter referred to as the "Effective Date."
SECTION 1. Appointment of Agent; Compensation to the Agent.
Subject to the terms and conditions herein set forth, the Company hereby
appoints Hopper Soliday & Co., Inc. as its exclusive agent (the "Agent") to
consult with and advise the Company, and to solicit subscriptions to purchase
Shares on behalf of the Company, in connection with the Company's offering of
the Shares in the Offering. On the basis of the representations, warranties and
agreements herein contained, and subject to the terms and conditions herein set
forth, the Agent accepts such appointment and agrees to consult with and advise
the Company as to the matters set forth in the letter agreement ("Letter
Agreement") accepted by the Company on June 28, 1996, between the Company and
the Agent (a copy of which is annexed hereto as Exhibit A) and to use its best
efforts to solicit subscriptions to purchase Shares in accordance with this
Agreement. The Agent shall not be responsible for obtaining subscriptions or
purchase orders for any specific number of Shares, shall not be required to
purchase any Shares, and shall not be obligated to take any action which is
inconsistent with any applicable laws, regulations, decisions or orders. The
appointment of the Agent hereunder shall terminate upon termination of the
Public Offering and satisfaction of the
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obligations of the Company pursuant to such Letter Agreement and
this Agreement.
In addition to the reimbursement of the expenses specified in Sections 5,
6 and 7 hereof, the Agent will receive as compensation for its services
hereunder, (i) a fee equal to 3% of the gross proceeds of the Community
Offering, plus (ii) a fee equal to 7% of the gross proceeds of the Community
Offering. No fees will be paid to Agent, however, in connection with sales of
Shares to officers, directors or employees (or members of their immediate
families) of the Company or the Bank.
The Agent may enter into agreements with other broker-dealers ("Selected
Dealers") to assist in the sale of shares in the Community Offering. The Agent
and each of the Selected Dealers shall be registered as a broker-dealer under
the state securities or blue sky laws of the jurisdictions designated in Section
4(e) of this Agreement and all other jurisdictions in which the Agent and each
Selected Dealer shall offer or sell Shares in the Community Offering.
The Company shall pay the Agent a fee equal to 7% of the gross proceeds
from sales through Selected Dealers, of which the Agent will pay over to the
appropriate Selected Dealers an amount equal to 5% of such sales and the Agent
may retain an amount equal to 2% of such sales as compensation for managing the
sales efforts of the Selected Dealers. During the Community Offering, the Agent
and the Selected Dealers may submit orders to purchase Shares for which they
have received indications of interest from their customers.
If the Offering are not completed, the Agent shall not be entitled to the
compensation set forth in the preceding two paragraphs but, in addition to
reimbursement of its expenses pursuant to Sections 5, 6 and 7 hereof,
nevertheless shall retain the financial advisory fee of $20,000 in consideration
of its advisory and administrative services as set forth in the Letter
Agreement.
The compensation specified above shall be payable (to the extent not
already paid) to the Agent in next day clearing house funds on the Public
Offering Termination Date or upon a determination by the Company to terminate or
abandon the Offering. The Company also agrees to reimburse the Agent for the
costs and expenses specified in Sections 5, 6 and 7 hereof as they are incurred,
to the extent such costs and expenses are incurred by the Agent, promptly upon
receiving a reasonable accounting of such costs and expenses.
SECTION 2. Release of Funds and Delivery of Certificates.
If all conditions precedent to the completion of the Offering are
satisfied, the Company shall issue the Shares sold in the Offering and release
for delivery certificates for such Shares as
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soon as practicable following the Public Offering Termination Date against
payment therefor by release of funds from the special escrow account maintained
by the Company at the Bank for purposes of the Offering. Such release,
withdrawal and payment shall be made at 10:00 A.M., Pittsburgh, Pennsylvania
time, on a business day and at a place selected by the Company, which date and
place shall be acceptable to the Agent, on at least two business days' prior
notice to the Agent (it being understood that such business day shall not be
more than 1O business days after the Public Offering Termination Date or such
other time or place as shall be agreed upon by the Company and the Agent.
Certificates for Shares shall be delivered directly to the purchasers thereof or
in accordance with their directions. Any certificates returned as undeliverable
will be held by the Company until claimed by persons legally entitled thereto or
otherwise disposed of in accordance with applicable law.
SECTION 3. Representations and Warranties. The Company represents and
warrants to the Agent as follows:
(a) As of the Effective Date, the Registration Statement complied in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations, and the Registration Statement did not contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and as of the
Effective Date (unless the term "Prospectus" refers to the Rule 424(b)
prospectus, in which case at the time it is filed with or mailed for filing to
the Commission) and at the Community Offering Expiration Date and Public
Offering Termination Date, as the case may be, referred to in the Registration
Statement, any preliminary or final Prospectus, and any Blue Sky Application or
any Sales Document (as such terms are defined in Section 6 hereof) authorized by
the Company for use in connection with the Community and Public Offering did not
and will not contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided, however,
that the representations and warranties in this Section 3 (a) shall not apply to
statements in or omissions from such Registration Statement, Prospectus or Sales
Documents made in reliance upon and in conformity with information furnished in
writing to the Company by the Agent regarding the Agent expressly for use under
the caption "Plan of Distribution" in the Prospectus;
(b) There are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the Company to
file a registration statement under the 1933 Act with respect to any securities
of the Company owned or to be owned by such person or to require the Company to
include such securities in the securities registered pursuant to the
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Registration Statement or in any securities being registered pursuant to any
other registration statement filed by the Company under the 1933 Act;
(c) The Company has been duly incorporated and is an existing corporation
in good standing under the laws of the Commonwealth of Pennsylvania, with
corporate power and authority to own its properties and conduct its business as
described in the Prospectus; and the Company is duly registered as a bank
holding company under the Bank Holding Company Act of 1956, as amended;
(d) The Bank has been duly organized and is validly existing as a national
banking association under the laws of the United States of America and the rules
and regulations of the Office of the Comptroller of the Currency ("OCC"); all of
the issued shares of capital stock of the Bank have been duly and validly
authorized and issued, are fully paid and nonassessable (except as set forth
under 12 U.S.C. ss.55), provided that the Company knows of no facts which
currently or with the passage of time would permit an assessment thereunder) and
are owned directly by the Company, free and clear of all liens, encumbrances,
equities or other claims; and there are no outstanding rights, warrants or
options to acquire or instruments convertible into, or exchangeable for, any
shares of capital stock or other equity interests in the Bank;
(e) The Shares will have been, and all other outstanding shares of the
Common Stock have been, duly authorized and validly issued, and the Shares will
be, and all other outstanding shares of Common Stock are, fully paid and
nonassessable and conform to the description thereof contained in the
Prospectus; and, the shareholders of the Company have no preemptive rights with
respect to the Shares;
(f) No consent, approval, authorization or order of, or filing with, any
governmental agency or body or any court is required for the consummation of the
transactions contemplated by this Agreement in connection with the issuance or
sale of the Shares by the Company, except such as have been obtained and made
under the 1933 Act and such as may be required under state securities laws;
(g) The execution, delivery and performance of this Agreement and the
issuance and sale of the Shares will not result in a breach or violation of any
of the terms and provisions of, or constitute a default under, any statute, any
rule, regulation or order of any governmental agency or body or any court having
jurisdiction over the Company or the Bank or any of their properties, or any
agreement or instrument to which the Company or the Bank is a party or by which
the Company or the Bank is bound or to which any of the properties of the
Company or the Bank is subject, or the charter or by-laws of the Company or the
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Bank, and the Company has full power and authority to authorize, issue and sell
the Shares as contemplated by this Agreement;
(h) This Agreement has been duly authorized, executed and
delivered by the Company;
(i) S.R. Snodgrass, A.C. with respect to the Company and the Bank, are
independent certified public accountants within the meaning of Rule 1O1 of the
Rules of Conduct of the Code of Professional Ethics of the American Institute of
Certified Public Accountants and Rule 2-01 of Regulation S-X under the 1933 Act;
(j) The consolidated financial statements of the Company included in the
Registration Statement and the Prospectus present fairly the consolidated
financial condition, results of operations and cash flows of the Company and the
Bank as at and for the dates indicated and the periods specified and comply as
to form in all material respects with the applicable accounting requirements of
the Commission and generally accepted accounting principles ("GAAP"). Said
financial statements have been prepared in conformity with GAAP applied on a
consistent basis during the periods involved, present fairly in all material
respects the information required to be stated therein and are consistent with
financial statements and other reports filed by the Company with the Commission.
The other financial and statistical 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 Company included in the Prospectus;
(k) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as may otherwise be stated
therein:
(i) there has not been any material adverse change, financial or
otherwise, in the condition of the Company or the Bank or in the earnings,
business affairs or business prospects of the Company or the Bank, whether
or not arising in the ordinary course of business,
(ii) there has not been any material increase in the long term debt
of the Company and the Bank, or in loans past due 90 days or more, or real
estate acquired by foreclosure, or any material decrease in surplus and
reserves or total assets of the Company and the Bank, nor has the Company
or the Bank issued any securities or incurred any liability or obligation
for borrowing other than in the ordinary course of business,
(iii) there have not been any material transactions entered into by
the Company or the Bank other than those in the ordinary course of
business, and
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(iv) the capitalization, liabilities, assets, properties and
business of the Company and the Bank conform in all material respects to
the descriptions thereof contained in the Prospectus. The Company and the
Bank have no material liability of any kind, contingent or otherwise,
except as disclosed or referred to in the Prospectus;
(l) The Company and the Bank have obtained all material licenses, permits
and other governmental authorizations currently required for the conduct of
their businesses; all such licenses, permits and governmental authorizations are
in full force and effect, and the Company and the Bank are in all material
respects complying with all laws, rules, regulations and orders applicable to
the operation of their businesses. The Company and the Bank do not own equity
securities or any equity interest in any business enterprise, except as
described in the Prospectus;
(m) The Bank is a member in good standing of the Federal Home Loan Bank of
Pittsburgh. The Company is in good standing with the Federal Reserve Bank of
Philadelphia. The Bank is in good standing with the OCC. The deposit accounts of
the Bank are insured by the Bank Insurance Fund up to the maximum amount allowed
under the law and no proceedings for the termination or revocation of such
insurance are pending or threatened;
(n) The Company and the Bank have good and marketable title to all
properties and assets which are material to their businesses and to those
properties and assets described in the Registration Statement and the Prospectus
as owned by them, free and clear of all liens, except such liens as are
described or referred to in the Registration Statement or the Prospectus or are
not materially significant or important in relation to the businesses of the
Company and the Bank; and all of the leases and subleases material to the
businesses of the Company and the Bank under which the Company and the Bank hold
properties, including those described in the Registration Statement and the
Prospectus, are in full force and effect;
(o) Except as set forth in the Registration Statement or the Prospectus,
there is no suit, proceeding, charge, investigation or action before or by any
court, regulatory authority or governmental agency or body pending or, to the
best knowledge of the Company or the Bank, threatened, which might materially
and adversely affect the performance of this Agreement or which might result in
any material adverse change in the condition (financial or otherwise), business
affairs or business prospects of the Company or the Bank, or which would
materially affect their properties and assets;
(p) The Company and the Bank are in compliance in all material respects
with the applicable financial record-keeping and reporting requirements of the
Currency and Foreign Transaction Reporting Act of 1970, as amended, and the
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regulations and rules thereunder;
(q) No default exists, and no event has occurred which with notice or
lapse of time, or both, would constitute a default on the part of the Company or
the Bank in the due performance and observance of any material term, covenant or
condition of any indenture, mortgage, deed of trust, note, bank loan or credit
agreement or any other instrument or agreement to which the Company or the Bank
or by which either of them or any of their property is bound or affected in any
respect which, in any such case, is material to the Company or the Bank; such
agreements are in full force and effect; and no other party to any such
agreements has instituted or, to the best knowledge of the Company and the Bank,
threatened any action or proceeding wherein the Company or the Bank would or
might be alleged to be in default thereunder;
(r) The Company and the Bank have filed all federal, state and local tax
returns required to be filed and have made timely payments of all taxes due and
payable in respect of such returns and no deficiency has been asserted with
respect thereto by any taxing authority except such as are being contested in
good faith and by appropriate proceedings and for which adequate reserves have
been established on the books of the Company and/or the Bank, as the case may
be;
(s) Neither the Company nor the Bank nor, to the knowledge of the Company,
any of their respective employees have made any payment of funds of the Company
or the Bank prohibited by law, and no funds have been set aside to be used for
any payment prohibited by law;
(t) The Company will apply the net proceeds from the sale of the Shares in
the manner set forth in the Prospectus under the caption "Use of Proceeds"; and
(u) Neither the Company nor the Bank has sold or issued any securities
within the three (3) years immediately preceding the Effective Date which were
not, registered under the 1933 Act and the applicable securities or Blue Sky
laws of the jurisdictions in which such securities were sold or issued; or, if
not registered, were sold or issued pursuant to and in full compliance with
applicable exemptions from registration available under the 1933 Act and the
applicable securities or Blue Sky laws of the jurisdiction in which sold or
issued; and no stop order, denial, order to show cause, suspension or revocation
order, injunction or restraining order, or similar order entered or issued by
the Commission, any state or other regulatory authority or by any court,
concerning any of such securities, is in effect and no proceeding with respect
thereto is now pending.
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SECTION 4. Covenants of the Company. The Company hereby covenants with the
Agent as follows:
(a) The Company will advise the Agent promptly of any proposal to amend or
supplement the Registration Statement or the Prospectus (including a prospectus
filed pursuant to Rule 424 under the 1933 Act which differs from the prospectus
on file at the time the Registration Statement was declared effective) and will
not effect such amendment or supplementation without the Agent's consent, which
shall not be unreasonably withheld; and the Company will also advise the Agent
promptly of the effectiveness of any amendment or supplementation of the
Registration Statement or the Prospectus (including a prospectus filed pursuant
to Rule 424 under the 1933 Act which differs from the prospectus on file at the
time the Registration Statement was declared effective) and of the institution
by the Commission of any stop order proceedings in respect of the Registration
Statement, and will use its best efforts to prevent the issuance of any such
stop order and to obtain as soon as possible its lifting, if issued.
(b) If, at any time when a prospectus relating to the Shares is required
to be delivered under the 1933 Act, any event shall have occurred as a result of
which, in the reasonable judgment of the Company after consultation with its
counsel and special counsel, the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is necessary
at any time to amend the Prospectus to comply with the 1933 Act, the Company
promptly will prepare and file with the Commission an amendment or supplement
which will correct such statement or omission or an amendment which will effect
such compliance.
(c) As soon as practicable, but not later than the Availability Date (as
defined below), the Company will make generally available to its security
holders an earnings statement (which need not be audited) covering a period of
at least 12 months beginning after the Effective Date which will satisfy the
provisions of Section 11(a) of the 1933 Act. For the purpose of the preceding
sentence only, "Availability Date" means the 45th day after the end of the
fourth fiscal quarter following the fiscal quarter that includes the Effective
Date, except that, if such fourth fiscal quarter is the last quarter of the
Company's fiscal year, "Availability Date" means the 90th day after the end of
such fourth fiscal quarter.
(d) The Company will furnish to the Agent copies of the Registration
Statement (one of which will be signed and will include all exhibits), the
Prospectus, all Sales Documents, if any, and all amendments and supplements to
such documents, in each case as soon as available and in such quantities as the
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Agent requests.
(e) The Company will use its best efforts to arrange for the qualification
of the Shares for sale under the state securities or Blue Sky laws of such
jurisdictions as the Agent reasonably designates including, without limitation,
Delaware, Florida, Maryland, New Jersey, New York, Ohio, Pennsylvania and Texas,
and will continue such qualifications in effect so long as required for the
distribution, provided that in connection therewith the Company shall not be
required to qualify as a foreign corporation or to file a general consent to
service of process.
(f) During the period of 5 years hereafter, the Company will furnish to
the Agent, as soon as practicable after the end of each fiscal year, a copy of
its annual report to stockholders for such year; and the Company will furnish to
the Agent (i) as soon as available, a copy of each report and definitive proxy
statement of the Company filed with the Commission under the Securities Exchange
Act of 1934, as amended ("1934 Act") or mailed to stockholders, and (ii) from
time to time, such other information concerning the Company as the Agent may
reasonably request.
(g) The Company will pay all expenses incident to the performance of its
obligations under this Agreement and will reimburse the Agent for any expenses
(including reasonable fees and disbursements of counsel) incurred by the Agent
in connection with the performance of its obligations under this Agreement
including, without limitation, any filing fee of the NASD relating to the Shares
and for expenses incurred in distributing the Prospectus (including any
amendments and supplements thereto) and any Sales Document, subject to and as
more fully provided in Sections 5, 6, 7 and 8 hereof.
(h) The Company will not offer, sell, contract to sell or otherwise
dispose of any additional shares of its Common Stock without the Agent's prior
written consent for a period of 90 days after the Community Offering Termination
Date.
(i) During the period when the Prospectus is required to be delivered, the
Company will comply, and will cause the Bank to comply, at the Company's own
expense, with all requirements imposed upon either or both of them by the OCC,
the FDIC, the Federal Reserve Board, applicable state law, and by the 1933 Act,
the 1933 Act Regulations, the 1934 Act and the rules and regulations of the
Commission promulgated thereunder, including, without limitation, Rule 10b-6
under the 1934 Act, in each case as from time to time in force, so far as
necessary to permit the continuance of sales or dealing in shares of Common
Stock during such period in accordance with the provisions hereof and the
Prospectus.
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(j) The Company will take, and will cause the Bank to take, such actions
and furnish such information as are reasonably requested by the Agent in order
for the Agent to ensure compliance with the NASD's Interpretation regarding
"Free Riding and Withholding."
(k) Prior to the Public Offering Termination Date, the Company will issue
no press release or other communication relating to the Offering and hold no
press conference with respect to the Company, the Bank, the financial condition,
results of operations, business, properties, assets or liabilities of either of
them, or the Offering, without the Agent's prior written consent.
SECTION 5. Payment of Expenses. The Company shall pay or cause to be paid
all expenses incident to the performance of the obligations of the Company under
this Agreement, including, but not limited to, the following:
(i) the preparation, issuance and delivery of
certificates for the Shares to the subscribers in the
Offering;
(ii) the fees and disbursements of the Company's
counsel and accountants;
(iii) the qualification of the Shares under all applicable state
securities or Blue Sky laws, including filing fees and the fees and
disbursements of counsel in connection therewith and in connection with
the preparation of a Blue Sky Survey;
(iv) the printing and delivery to the Agent in such quantities as
the Agent shall reasonably request of copies of the Registration
Statement, the Prospectus and the Applications (as defined in Section 6)
as originally filed and as amended or supplemented and all other documents
in connection with the Offering and this Agreement;
(v) filing fees incurred in connection with the review
of the Offering by the Commission and by the NASD;
(vi) fees and expenses relating to advertising expenses, temporary
personnel expenses and other miscellaneous expenses relating to the
marketing by the Agent of the Shares;
(vii) the cost of all other documents applicable to the
Offering and the fees and charges of any transfer agent,
registrar and other agents;
(viii) fees of the Agent's legal counsel up to $15,000; and
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(ix) all actual out-of-pocket expenses not to exceed $7,500, unless
a greater amount is agreed upon in writing by the Company, incurred by the
Agent and its counsel in connection with the Offering other than costs and
expenses incurred by the Selected Dealers, if any, in connection with the
Public Offering.
SECTION 6. Indemnification.
(a) The Company shall indemnify and hold harmless the Agent and each
Selected Dealer, and their respective officers, directors, agents and employees
and each person, if any, who controls the Agent or anyof them within the meaning
of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act, against any and
all loss, liability, claim, damage or expense whatsoever, joint or several, that
the Agent or any of them may suffer or to which the Agent or any of them may
become subject under all applicable federal and state laws or otherwise, and to
promptly reimburse the Agent and any such persons upon written demand for any
expenses, including legal fees, disbursements of counsel and other expenses
incurred by the Agent or any of them in connection with investigating, preparing
or defending any actions, proceedings or claims (whether commenced or
threatened) to the extent such losses, claims, damages, liabilities or actions:
(i) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement or any amendment or supplement thereto), the Prospectus (or any
amendment or supplement thereto), or any Blue Sky application or other
instrument executed by the Company or the Bank or based upon written
information supplied by the Company or the Bank filed in any state or
jurisdiction to register or qualify any or all of the Shares under the
securities laws thereof (collectively, the "Applications"), or any notice,
request or other document, advertisement or communication (collectively,
the "Sales Documents") prepared or executed by or on behalf of the Company
or the Bank with their consent or based upon written information furnished
by or on behalf of the Company or the Bank, whether or not filed in any
jurisdiction, in order to qualify or register the Shares under the
securities laws thereof;
(ii) arise out of or are based upon the omission or alleged omission
to state in any of the foregoing documents a material fact required to be
stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading;
(iii) arise from any theory of liability whatsoever relating to or
arising from or based upon the Registration Statement (or any amendment or
supplement thereto), the Prospectus, any Application or Sales Document, or
other
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documentation distributed in connection with the Offering;
or
(iv) arise from the sale of the Shares despite the failure to
satisfy one or more of the conditions set forth in Section 8 hereof,
except to the extent such losses, claims, damages, liabilities or actions
arise out of or are based upon any such untrue statement or alleged untrue
statement in, or such material fact or alleged material fact was omitted
from, the Registration Statement (or any amendment or supplement thereto),
the Prospectus (or any amendment or supplement thereto), or any
Application or Sales Document (or any amendment or Supplement thereto),
made in reliance upon and in conformity with information furnished in
writing to the Company by the Agent regarding the Agent expressly for use
under the caption "Plan of Distribution" therein; or
(v) arise from the services of the Agent or matters in connection
therewith that are the subject of the Letter Agreement and this Agreement;
provided, however, that the Company shall not be liable under this clause
(v) in respect of any loss, claim, damage or liability which resulted from
the Agent's negligence or willful misconduct.
(b) The Agent agrees to indemnify and hold harmless the Company, its
directors, officers, employees, agents and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20(a) of the
1934 Act against any and all loss, liability, claim damage or expense
whatsoever, joint or several which they, or any of them, may suffer or to which
they, or any of them, may become subject under all applicable federal and state
laws or otherwise, and to promptly reimburse the Company and any such persons
upon written demand for any expenses (including fees and disbursements of
counsel) incurred by them, or any of them, in connection with investigating,
preparing or defending any actions, proceedings or claims (whether commenced or
threatened) to the extent such losses, claims, damages, liabilities or actions:
(i) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment or supplement thereto), or the Prospectus (or
any amendment or supplement thereto), or are based upon the omission or
alleged omission to state in any of the foregoing documents a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading but only to the extent that such untrue statement or alleged
untrue statement was made in, or such material fact or alleged material
fact was omitted from, the Registration Statement (or any amendment or
supplement thereto) or the Prospectus (or any amendment
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or supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Company by the Agent regarding the Agent
expressly for use under the caption "Plan of Distribution" therein, or
(ii) arise from the services of the Agent or matters in connection
therewith that are the subject of the Letter Agreement and this Agreement,
but only to the extent that such losses, claims, damages, liabilities or
actions arise from the services of Agent or matters in connection
therewith that are resulted from Agent's gross negligence or willful
misconduct.
(c) Each indemnified party shall give prompt written notice to each
indemnifying party or any action, proceeding, claim (whether commenced or
threatened), or suit instituted against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve it from any liability which it may have on account of this Section 6 or
otherwise. An indemnifying party may participate at its own expense in the
defense of such action. In addition, if it so elects within a reasonable time
after receipt of such notice, an indemnifying party, jointly with any other
indemnifying parties receiving such notice, may assume the defense of such
action with counsel chosen by it and approved by the indemnified parties that
are defendants in such action, unless such indemnified parties reasonably object
to such assumption on the ground that there may be legal defenses available to
them that are different from or in addition to those available to such
indemnifying party. If an indemnifying party assumes the defense of such action,
the indemnifying parties shall not be liable for any fees and expenses of
counsel for the indemnified parties incurred thereafter in connection with such
action, proceeding or claim, other than reasonable costs of investigation. 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.
(d) The agreements contained in this Section 6 and in Section 7 hereof and
the representations and warranties of the Company set forth in this Agreement
shall remain in full force and effect regardless of:
(i) any investigation made by or on behalf of the Agent or the
Agent's officers, directors or controlling persons, agents or employees or
by or on behalf of the Company or any officers, directors or controlling
persons, agents or employees of the Company;
14
(ii) delivery of and payment hereunder for the Shares;
or
(iii) any termination of this Agreement.
SECTION 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for in
Section 6 is due in accordance with its terms but is for any reason held by a
court to be unavailable from the Company, the Company and the Agent shall
contribute to the aggregate losses, claims, damages and liabilities (including
the investigation, legal and other expenses incurred in connection with, and any
amount paid in settlement of any action, suit or proceeding of any claims
asserted, but after deducting any contribution received by the Company or the
Agent from persons other than the other party thereto, who may also be liable
for contribution) in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
the Agent on the other, in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions, proceedings
or claims in respect thereof). The relative benefits received by the Company on
the one hand and the Agent on the other shall be deemed to be in the same
proportion as the total gross proceeds from the Offering (before deducting
expenses) received by the Company bear to the total fees (not including
expenses) received by the Agent. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact relates to information supplied by the Company on one hand or
the Agent on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Agent 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 account of the
equitable considerations referred to above in this Section 7. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions, proceedings or claims in respect thereof) referred to
above in this Section 7 shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action, proceeding or claim. The Agent shall not be liable
for any loss, liability, claim, damage or expense or be required to contribute
any amount which in the aggregate exceeds the amount paid to the Agent under
this Agreement. It is understood that the above-stated limitation on the Agent's
liability is essential to the Agent and that the Agent would not have entered
into this Agreement if such limitation had not been agreed to by the parties to
this Agreement. No person found guilty of any fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution
15
from any person who was not found guilty of such fraudulent misrepresentation.
The obligations of the Company under this Section 7 and under Section 6 shall be
in addition to any liability which the Company may otherwise have. For purposes
of this Section 7, each of the Agent's officers and directors and each person,
if any, who controls the Agent within the meaning of the 1933 Act and the 1934
Act shall have the same rights to contribution as the Agent and each person, if
any, who controls the Company within the meaning of the 1933 Act and the 1934
Act, and each officer and director of the Company shall have the same rights to
contribution as the Company. Any party entitled to contribution, promptly after
receipt of notice of commencement of any action, suit, claim or proceeding
against such party in respect of which a claim for contribution may be made
against another party under this Section 7, will notify such party from whom
contribution may be sought, but the omission to so notify such party shall not
relieve the party from whom contribution may be sought from any other obligation
it may have hereunder or otherwise than under this Section 7.
SECTION 8. Conditions of the Agent's Obligation. The Agent's obligations
hereunder are subject, in the Agent's discretion, to the condition that all
representations and warranties and other statements of the Company herein are,
at and as of the commencement of the Community Offering and at and as of the
Public Offering Termination Date, true and correct in all material respects, the
condition that the Company shall have performed in all material respects all of
its obligations hereunder to be performed on or before such dates, and to the
following further conditions:
(a) The Registration Statement shall have been declared effective by the
Commission not later than 5:30 P.M., Pittsburgh time, on the date of this
Agreement, or with the Agent's consent at a later time and date. At or prior to
the Public Offering Termination Date no stop order suspending the effectiveness
of the Registration Statement or the completion of the Offering shall have been
issued under the 1933 Act or proceedings therefor initiated or threatened by the
Commission or by any state authority under any state securities of Blue Sky law,
and no order or other action suspending the effectiveness of the Prospectus or
the completion of the Offering shall have been issued or proceedings therefore
initiated or threatened by the Commission, any state authority, or any other
person.
(b) The Agent shall have received a letter addressed to the Agent, dated
the Effective Date, of S. R. Snodgrass, A.C., in form and substance satisfactory
to the Agent confirming that they are independent public accountants with
respect to the Company within the meaning of the 1933 Act and the applicable
published 1933 Act Regulations and stating in effect that:
(i) in their opinion the financial statements and
16
schedules of the Company included in the Registration Statement and
covered by their opinion thereon dated February 16, 1996 (except as to
Note 15, as to which the date is June 20, 1996) comply as to form in all
material respects with the applicable accounting requirements of the 1933
Act and the related published 1933 Act Regulations;
(ii) they have performed the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in SAS No. 71, Interim Financial
Information, on the unaudited financial statements of the Company included
in the
Registration Statement;
(iii) on the basis of the procedures referred to in clause (ii)
above, a reading of the latest available interim financial statements of
the Company, inquiries of officials of the Company who have responsibility
for financial and accounting matters and a reading of minutes of the
Company and the Bank, nothing came to their attention that caused them to
believe that:
(A) the unaudited financial statements of the Company included
in the Registration Statement do not comply as to form in all
material respects with the applicable accounting requirements of the
1933 Act and the related published 1933 Act Regulations, or are not
in conformity with generally accepted accounting principles applied
on a basis substantially consistent with that of the audited
financial statements of the Company included in the Registration
Statement;
(B) at the date of the latest available balance sheet of the
Company, there was any change in the capital stock, any increase in
consolidated long-term debt, or any decrease in consolidated
stockholders' equity, total assets, total deposits, or the allowance
for loan losses, as compared with amounts shown on the latest
balance sheet of the Company included in the Prospectus; or
(C) for the period of time from the closing date of the latest
income statement of the Company included in the Prospectus to the
closing date of the latest available income statement of the
Company, there were any decreases, as compared with the
corresponding period of the previous year, in consolidated net
interest income, net interest income after provision from loan
losses, or the total or the fully diluted per share amounts of
consolidated net income; except in all cases set forth in clauses
(B) and (C) above for changes, increases or decreases which the
Prospectus discloses have occurred or may occur or which are
17
described in such letter; and
(iv) they have compared the dollar amounts (or percentages derived
from such dollar amounts) and other financial information of the Company
and the Bank contained in the portions of the Registration Statement
identified in Exhibit B annexed hereto (in each case to the extent that
such dollar amounts, percentages and other financial information are
derived from the general accounting records of the Company and the Bank
and subject to the internal controls of the Company's accounting system,
or are derived directly from such records by analysis or computation) with
the amounts in the audited and unaudited financial statements of the
Company, as the case may be, included in the Registration Statement, the
amounts in the general accounting records of the Company and the Bank and
the amounts shown in analyses prepared by the Company or the Bank
therefrom, and have found such dollar amounts, percentages and other
financial information of the Company and the Bank to be in agreement and
have proved the arithmetic accuracy of the percentages based on the data
in such financial statements and general accounting records, except as
otherwise specified in such letter.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred
(i) any change, or any development involving a prospective change,
in or affecting particularly the business or properties of the Company or
the Bank which, in the reasonable judgment of the Agent, materially
impairs the investment quality of the Shares;
(ii) any suspension or limitation of trading in securities generally
on the New York Stock Exchange, or any setting of minimum prices for
trading on such exchange, or any suspension of trading of any securities
of the Company or the Bank on any exchange or in the over-the-counter
market;
(iii) any banking moratorium declared by Federal or
Pennsylvania authorities; or
(iv) any outbreak or escalation of major hostilities in which the
United States is involved, any declaration of war by Congress or any other
substantial national or international calamity or emergency if, in the
reasonable judgment of the Agent, the effect of any such outbreak,
escalation, declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the sale of and payment for the
Shares.
(d) The Agent shall have received an opinion dated as of
18
the Effective Date, of Malizia, Spidi, Sloane & Fisch, P.C., special counsel for
the Company, to the effect that:
(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the Commonwealth of
Pennsylvania, with corporate power and authority to own its properties and
conduct its business as described in the Prospectus; and, the Company is
duly registered as a bank holding company under the Bank Holding Company
Act of 1956, as amended;
(ii) The Bank has been duly organized and is validly existing as a
national banking association under the laws of the United States of
America and the rules and regulations of the OCC; all of the issued shares
of capita stock of the Bank have been duly and validly authorized and
issued, are fully paid and nonassessable (except as set forth under 12 USC
ss.55), provided that such counsel knows of no facts which currently or
with the passage of time would permit an assessment thereunder) and are
owned directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or other claims; and there are no outstanding
rights, warrants or options to acquire or instruments convertible into, or
exchangeable for, any shares of capital stock or other equity interests in
the Bank;
(iii) The Shares and all other outstanding shares of the Common
Stock have been or will be duly authorized and validly issued, fully paid
and non-assessable, and conform to the description thereof contained in
the Prospectus; and the stockholders of the Company and the Bank have no
preemptive rights;
(iv) There are no contracts, agreements or understandings known to
such counsel between the Company and any person granting such person the
right to require the Company to file a registration statement under the
1933 Act with respect to any securities of the Company owned or to be
owned by such person or to require the Company to include such securities
in the securities registered pursuant to the Registration Statement or in
any securities being registered pursuant to any other registration
statement filed by the Company under the 1933 Act;
(v) No consent, approval, authorization or order of, or filing with,
any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement in
connection with the issuance or sale of the Shares by the Company, except
such as have been obtained and made under the 1933 Act and those state
securities or Blue Sky laws designated by Agent pursuant to Section 4(e);
19
(vi) The issuance and sale of the Shares and the compliance by the
Company with all of the provisions of this Agreement and the consummation
of the transactions herein and therein contemplated do not conflict with
or constitute a breach of any of the terms or provisions of, or constitute
a default under any indenture, mortgage, deed of trust, loan agreement,
debt agreement, or other agreement or instrument known to such counsel
after reasonable inquiry to which the Company or the Bank is a party or by
which the Company or the Bank is bound or to which the Bank is subject and
in each case described above which (A) are material, to the business of
the Company or the Bank, or where (B) such conflict, breach or default
would prohibit the issuance and sale of the Shares; nor do such actions
violate the provisions of the articles of incorporation, as amended, or
the byLaws of the Company or the Bank or violate any applicable Federal,
or state statute, order, rule or regulation or, to the best of such
counsel's knowledge after reasonable inquiry, violate any order of any
court, bank regulatory agency, or other governmental agency or body having
jurisdiction over the Company or the Bank or any of their respective
properties, except in each case where any such violation would not have a
material adverse effect on the issuance and sale of the Shares or on the
conditions, business or operations of the Company and the Bank;
(vii) This Agreement has been duly authorized,
executed and delivered by the Company;
(viii) The Registration Statement was initially declared effective
under the 1933 Act as of 10:00 A.M. on September **, 1996, the Prospectus
was filed, if required, with the Commission pursuant to the applicable
subparagraph of Rule 424(b) on the date specified therein and, to the best
of the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement or any part thereof has been
issued and no proceedings for that purpose have been instituted or are
pending or contemplated under the 1933 Act or any state securities or Blue
Sky law, and the Registration Statement and each amendment thereto, as of
the Effective Date, and the Prospectus, and each supplement thereto, as of
their respective issue dates, complied as to their respective issue dates,
complied as to form in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations; such counsel have no reason to
believe that the Registration Statement, the Prospectus, or any such
amendment or supplement, as of such respective dates, contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading; the descriptions in the Registration Statement (as of the
Effective Date) and the Prospectus of statutes, legal and
20
governmental proceedings and contracts and other documents are accurate in
all material respects and fairly present the information required to be
shown; and such counsel do not know of any legal or governmental
proceedings required to be described in the Registration Statement (as of
the Effective Date) or the Prospectus which are not described as required
or of any contracts or documents of a character required to be described
in the Registration Statement (as of the Effective Date), the Prospectus
or to be filed as exhibits to the Registration Statement (as of the
Effective Date) which are not described and filed as required; it being
understood that such counsel need express no opinion as to the financial
statements and other financial data contained in the Registration
Statement or the Prospectus; and
(ix) All securities issued or sold by the Company or the Bank within
the three (3) years immediately preceding the Effective Date were
registered under the 1933 Act and the applicable securities or Blue Sky
laws of the jurisdictions in which such securities were sold or issued;
or, if not registered, were sold or issued pursuant to and in full
compliance with applicable exemptions from registration available under
the 1933 Act and the applicable securities or Blue Sky laws of the
jurisdictions in which sold or issued; and, to the best knowledge of such
counsel, no stop order, denial, order to show cause, suspension or
revocation order, injunction or restraining order, or similar order
entered or issued by the Commission, any statement or other regulatory
authority or by any court, concerning any such securities, is in effect
and no proceeding with respect thereto is now pending.
(e) The Agent shall have received from Pepper, Hamilton & Scheetz, counsel
for the Agent, such opinion or opinions, dated the Effective Date, with respect
to such matters as the Agent may reasonably require, and the Company shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(f) The Agent shall have received a certificate, dated the Effective Date,
of the President and the principal financial or accounting officer of the
Company in which such officers, to the best of their knowledge after reasonable
investigation, shall state that the representations and warranties of the
Company in this Agreement are true and correct, that each of the Company and the
Bank has complied with all agreements and satisfied all conditions on its part
to be performed or satisfied hereunder at or prior to the Community Offering
Termination Date, that no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted or are contemplated by the Commission and that, subsequent to
the respective date of the most recent financial statements in the Prospectus,
there has been no material adverse
21
change in the respective financial position or results of operation of the
Company and the Bank except as set forth in or contemplated by the Prospectus or
as described in such certificate.
(g) The Agent shall have received a letters addressed to the Agent dated
the Public Offering Termination Date which meets the requirements of subsections
(b) (iii) (B) and (C) of this Section as of the date of such letter.
(h) The Agent shall have received from Malizia, Spidi, Sloane & Fisch,
P.C., a letter addressed to the Agent dated the Public Offering Termination Date
to the effect that as of the date of such letter their opinion delivered under
subsection (d) of this Section remains in full force and effect.
(i) The Agent shall have received a certificate dated the Public Offering
Termination Date which meets the requirements of subsection (f) of this Section
as of the date of such certificate.
(j) The Agent shall have received on or prior to the date of the execution
of this Agreement letters of each director of the Company in the form of Exhibit
C.
The Company will furnish the Agent with such conformed copies of such opinions,
certificates, letters and documents as the Agent shall reasonably request.
If any of the conditions specified in this Section shall not have been
fulfilled when and as required by this Agreement, this Agreement and all of the
Agent's obligations hereunder may be terminated by the Agent by notifying the
Company of such termination in writing or by telegram at any time at or prior to
the Public Offering Termination Date, and any such termination shall be without
liability of any party to any other party except as otherwise provided in this
paragraph and in Sections 1, 5, 6 and 7 hereof. If this Agreement is terminated
pursuant to this paragraph and any Shares are sold in the Offering nevertheless,
the Agent shall be entitled to receive, and the Company agrees to pay to the
Agent, the same amount of compensation to which the Agent would have been
entitled and which the Company would have been obligated to pay hereunder in the
absence of such termination.
SECTION 9. Termination.
(a) This Agreement may be terminated by the Company at any time after the
Community Offering Expiration Date, and no party to this Agreement shall have
any obligation to another hereunder, except for payment by the Company, as set
forth in Sections I (fourth paragraph thereof), 5, 6, 7 and 8 hereof
22
(b) This Agreement may be terminated by the Agent, with respect to the
Agent's obligations hereunder, by notifying the Company at any time at or prior
to the Public Offering Termination Date, if any of the conditions specified in
Section 8 hereof shall not have been fulfilled when and as required by this
Agreement.
SECTION 10. Survival. The respective indemnities, agreements,
representations, warranties and other statements of the Company and the Agent
set forth in this Agreement, shall remain in full force and effect, regardless
of any investigation (or any statement as to the results thereof) made by or on
behalf of the Agent or any of the Agent's officers or directors or any person
controlling the Company, and shall survive termination of this Agreement and the
receipt or delivery of any payment for the Shares.
SECTION 11. Miscellaneous.
(a) Notices hereunder, except as otherwise provided herein, shall be given
in writing or by telegraph, addressed:
To the Agent
1703 Oregon Pike
Lancaster, PA 17601
Attention: Eric G. Hoerner, Vice President
with a copy to:
Dennis M. Sheedy
Pepper, Hamilton & Scheetz
One Mellon Bank Building, 50th Floor
Pittsburgh, PA 15219
and to the Company at:
Emclaire Financial Corp.
612 Main Street, Box D
Emlenton, Pennsylvania 16373
Attention: President
with a copy to:
Gregory A. Gehlmann
Malizia, Spidi, Sloan & Fisch, P.C
1301 K Street, N.W., Suite 700E
Washington, DC 20005
(b) This Agreement is made solely for the benefit of and will be binding
upon the parties hereto and their respective successors and the controlling
persons referred to in Section 6 hereof, and no other person will have any right
or obligation hereunder. The term "successors" shall not include any purchaser
23
of any of the Shares.
(c) This Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Pennsylvania.
(d) Time shall be of the essence of this Agreement.
(e) This Agreement may be signed in various counterparts which together
will constitute one agreement.
(f) Capitalized terms used herein that are not defined herein but are
defined in the Prospectus, shall have the meanings defined therein.
If the foregoing correctly sets forth the arrangement between the Company
and the Agent, please indicate acceptance thereof in the space provided below
for that purpose, whereupon this letter and the Agent's acceptance shall
constitute a binding agreement.
Very truly yours,
Emclaire Financial Corp.
By:
----------------------------------
Name
Confirmed and accepted as of the date first above written.
HOPPER SOLIDAY & CO., INC.
By:
-------------------------------
24
EXHIBIT B
1. SUMMARY - The Company
2. SUMMARY - Financial Highlights - Profitability, Capital,
Asset Quality and Community Lending, Retail Deposit Base
3. THE Offering - Dividends on Common Stock
4. SUMMARY OF CONSOLIDATED FINANCIAL DATA
5. MARKET FOR COMMON STOCK AND RELATED STOCKHOLDER MATTERS -
Dividends
6. CAPITALIZATION
7. SELECTED FINANCIAL DATA
8. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATION
9. BUSINESS - Lending Activities
10. BUSINESS - Investment Portfolio
11. BUSINESS - Deposits
12. MANAGEMENT - table of beneficial ownership
13. EXECUTIVE COMPENSATION - Compensation Paid to Executive
Officers - SUMMARY COMPENSATION TABLE
25
Exhibit C
Hopper Soliday & Co., Inc.
1703 Oregon Pike
Lancaster, PA 17601
Re: Proposed Community and Public Offering of Common Stock
of Emclaire Financial Corp.
Gentlemen:
In connection with the above-referenced proposed offering and in
consideration for your being named in the Agency Agreement between Emclaire
Financial Corp., a Pennsylvania corporation (the "Company"), and you (the
"Agency Agreement") and entering into the Agency Agreement, the undersigned, a
director of the Company hereby agrees with the Agent that for a period of 90
days after the Public Offering Termination Date (as defined in the Agency
Agreement), the undersigned will not, without your prior written consent,
directly or indirectly, offer to sell, contract to sell, sell, grant any option
for the sale of, or otherwise dispose of (other than to donees who agree to be
similarly bound) any shares of the Company's Common Stock owned or controlled by
the undersigned. For purposes of the preceding sentence, shares of the Company's
Common Stock owned or controlled by a trust of which the undersigned is trustee
and has sole power to dispose of such Common Stock shall be deemed to be
controlled by the undersigned.
Very truly yours,
-----------------------------
(type or print)
Dated:
----------------------------
26