Exhibit 1.2
FIRST BANCTRUST CORPORATION
UP TO 1,388,625 SHARES
OF
COMMON STOCK
(PAR VALUE $.01 PER SHARE)
$10.00 PER SHARE
SALES AGENCY AGREEMENT
___________, 2001
Trident Securities, A Division of McDonald Investments, Inc.
0000 Xxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Dear Sirs:
First BancTrust Corporation, a Delaware corporation ("Company"), and
First Bank & Trust, S.B., an Illinois-chartered state savings bank (the
"Bank""), hereby confirm as of the date above their respective agreements with
Trident Securities, a Division of McDonald Investments Inc., ("Trident"), a
broker-dealer registered with the Securities and Exchange Commission
("Commission") and a member of the National Association of Securities Dealers,
Inc. ("NASD"), as follows:
1. INTRODUCTION. The Bank intends to convert from an Illinois-chartered
mutual savings bank to an Illinois-chartered stock savings bank as a
wholly-owned subsidiary of the Company (together with the Offerings, as defined
below, the issuance of shares of common stock of the Bank to the Company, and
the incorporation of the Company, collectively the "Conversion") pursuant to a
plan of conversion adopted on October 16, 2000, (the "Plan"). In accordance with
the Plan, the Company is offering shares of its common stock, par value $0.01
per share (the "Shares" or the "Common Stock"), pursuant to nontransferable
subscription rights in a subscription offering ("Subscription Offering") first
to certain depositors of the Bank as of the eligibility record date there to
stated in the Plan, then to the Bank's Employee Stock Ownership Plan (the
"ESOP"), and then to Supplemental Eligible Account Holders and Other Voting
Members (as defined in the Plan), Shares of the Common Stock not sold in the
Subscription Offering are being offered to the general public in a direct
community offering, with preference being given to natural persons residing in
Xxxxx and Xxxxx Counties, Illinois (the "Community Offering") and, if necessary,
through a syndicate of registered broker-dealers managed by Trident in a
syndicated community offering (the "Syndicated Community Offering"). The
Subscription Offering, the Community Offering and the Syndicated Community
Offering are collectively referred to as the "Offerings." Purchases of Shares in
the Offerings are subject to certain limitations and restrictions as described
in the Plan.
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The Company and the Bank have been advised by Trident that it will
utilize its best efforts to assist the Company and the Bank with the sale of the
Shares in the Offerings. Prior to the execution of the Agreement, the Company
has delivered to Trident a prospectus dated as of the date hereof and all
supplements thereto to be used in the Offerings. Such prospectus contains
information with respect to the Company, the Bank, the Shares and the
Conversion.
2. REPRESENTATIONS AND WARRANTIES.
(a) The Company and the Institution jointly and severally represent and
warrant to Trident that:
(i) The Company has filed with the Commission a registration statement,
including a prospectus relating to the Offerings and exhibits, and an
amendment or amendments thereto, on Form SB-21 (No. 333-_______) for
the registration of the Shares under the Securities Act of 1933, as
amended ("Securities Act"); and such registration statement has been
declared effective under the Securities Act and no stop order has been
issued with respect thereto and no proceedings therefor have been
initiated or, to the best knowledge of the Company and the Bank,
threatened by the Commission. Except as the context may otherwise
require, such registration statement, as amended or supplemented, on
file with the Commission at the time the registration statement became
effective, including the prospectus, financial statements, schedules,
exhibits and all other documents filed as part thereof is herein called
the "Registration Statement," and the prospectus, as amended or
supplemented, on file with the Commission at the time the Registration
Statement became effective is herein called the "Prospectus," except
that if any prospectus filed by the Company with the Commission
pursuant to Rule 424(b) of the general rules and regulations of the
Commission under the Securities Act (together with the enforceable
published policies, releases and actions of the Commission thereunder,
hereinafter referred to as the "Securities Act Regulations") differs
from the form of prospectus on file at the time the Registration
Statement became effective, the term "Prospectus" shall refer to the
Rule 424(b) prospectus from and after the time it is filed with or
mailed for filing to the Commission and shall include any amendments or
supplements thereto from and after their dates of effectiveness or use,
respectively. The Registration Statement complies as to form in all
material respects with the Securities Act and the Securities Act
Regulations.
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(ii) The Bank has filed an Application to Convert from the Mutual to
Stock Form of Organization (as amended or supplemented, the
"Conversion Application") with the Office of the Commissioner of
Bank and Real Estate of the State of Illinois ("Office"), which has
been approved by the Office, and the Bank has filed a Notice of
Intent to Convert to Stock Form pursuant to 12 C.F.R. Section
303.161 ("Notice") with the Federal Deposit Insurance Corporation
("FDIC"), which has been approved by the FDIC; and the Prospectus
and the proxy statement for the solicitation of proxies from members
of Bank for the special meeting to approve the Plan ("Proxy
Statement") included as part of the Conversion Application and
Notice have been approved for use by the Office and FDIC,
respectively. The Company has filed with the Board of Governors of
the Federal Reserve System ("Board") the Company's application to
acquire ownership of the Bank on Form FRY-3 ("Holding Company
Application") and has received approval of its acquisition of the
Bank from the Board. No order has been issued by either the Office
or FDIC preventing or suspending the use of the Prospectus or Proxy
Statement, and no action by or before the Office or FDIC or any
court or other tribunal challenging or seeking to challenge the
Office's or FDIC's approval of the use of the Prospectus or Proxy
Statement or the Office's approval of the Conversion Application,
the FDIC's approval of the Notice or the Board's approval of the
Holding Company application is pending, or to the best knowledge of
the Company and Bank, threatened.
(iii) As of the date thereof (i) the Registration Statement and the
Prospectus complied as to form with the Securities Act and the
Securities Act Regulations, (ii) 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 light of the circumstances under which they were
made, not misleading, and (iii) the Prospectus did not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. Representations or warranties in this subsection shall not
apply to statements or omissions made in reliance upon and in
conformity with written information relating to Trident furnished to
the Company or Bank by or on behalf of Trident and expressly provided
for use in the Registration Statement or Prospectus.
(iv) The Company is incorporated as a Delaware corporation and Bank is
duly organized as a mutual savings bank under the laws of Illinois, and
each of them is validly existing and in good standing under the laws of
its jurisdiction of organization with full power and authority to own
its property and conduct its business as described in the Registration
Statement and Prospectus; the Bank is a member in good standing of the
Federal Home Loan Bank of Chicago; and the
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deposit accounts of Bank are insured by the Federal Deposit
Insurance Corporation ("FDIC") up to the applicable legal limits.
The Company is qualified to transact business as a foreign
corporation in the State of Illinois. Each of the Company and Bank
is qualified to transact business as a foreign corporation in all
jurisdictions except those where non-qualification would reasonably
be expected not have a Material Adverse Effect on the condition
(financial or otherwise), operations, business, earnings or
properties of the Company, Bank and any Subsidiaries (defined below)
considered as one enterprise ("Material Adverse Effect").
(v) The Bank owns of record and beneficially all of the outstanding
shares of ECS Service Corporation, First Charter Service Corporation
and Community Finance Center, Inc. (the "Subsidiaries"). The
Subsidiaries are corporations duly organized, validly existing and in
good standing under the laws of the State of Illinois, each with full
power and authority to own their respective properties and conduct
their respective businesses as described in the Prospectus. The
Subsidiaries are qualified to do business as foreign corporations in
all jurisdictions except those where nonqualification would not have a
Material Adverse Effect.
(vi) The Company, Bank and the Subsidiaries have good and marketable
title to all assets material to their respective businesses and to
those assets described in the Prospectus as owned by it, free and clear
of all liens, charges, encumbrances or restrictions, except for liens
for ad valorem taxes not yet due, except as described in the Prospectus
and except as would not, in the aggregate, have a Material Adverse
Effect; and all of the leases and subleases material to the operations
of the Company, Bank or any Subsidiaries, under which it holds
properties, including those described in the Prospectus, are in full
force and effect as described therein.
(vii) The Company, the Bank and the Subsidiaries have obtained all
licenses, permits and other governmental authorizations currently
required for the conduct of their respective businesses except where
the failure to obtain such licenses, permits and governmental
authorizations would reasonably be expected not to have a Material
Adverse Effect; all such licenses, permits and other governmental
authorizations are in full force and effect, and the Company, the Bank
and the Subsidiaries are complying therewith in all material respects.
(viii) The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly and
validly authorized by all necessary actions on the part of each of the
Company and Bank, and this Agreement is a valid and binding obligation
of each of the Company and Bank, enforceable in accordance with its
terms except as the enforceability thereof may be limited by (a)
bankruptcy, insolvency, moratorium, reorganization, conservatorship,
receivership
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or similar laws relating to or affecting the enforcement of creditors'
rights generally or the rights of creditors of insured financial
institutions and their holding companies, the accounts of whose
subsidiaries are insured by the FDIC; (b) general equity principles,
regardless of whether such principles are applied in a proceeding in
equity or at law; (c) laws relating to the safety and soundness of
insured depository institutions and their affiliates, and except to the
extent that the provisions of Sections 8 and 9 hereof may be
unenforceable as against public policy or by applicable law, including
without limitation, Section_23A of the Federal Reserve Act, 12 U.S.C.
Section 371c ("Section 23A").
(ix) Except as described in the Prospectus, there is no litigation or
governmental proceeding pending or, to the best knowledge of the
Company or Bank, threatened against or involving the Company, Bank or
any Subsidiaries, or any of their respective assets which individually
or in the aggregate would reasonably be expected to have a Material
Adverse Effect.
(x) The Company and Bank each has all power, authority, authorizations,
approvals and orders as may be required to enter into this Agreement,
to carry out the provisions and conditions hereof and, in the case of
the Company, to issue and sell the Shares to be sold by it as provided
herein, and in the case of Bank, to issue and sell the shares of its
capital stock to be sold to the Company as provided in the Plan
(subject to the issuance of an amended charter in the form required for
an Illinois-chartered savings bank ("Stock Charter"), the form of which
is filed as an exhibit to the Conversion Application).
(xi) The Company and Bank have received the opinions of Elias, Matz,
Xxxxxxx & Xxxxxxx L.L.P. with respect to the federal income tax
consequences of the Conversion to the effect that the Conversion will
constitute a tax-free reorganization under the Internal Revenue Code of
1986, as amended (the "Code"), and the Company and the Bank have
received the opinion of Olive LLP with respect to the state income tax
consequences of the Conversion to the effect that Conversion will not
be a taxable transaction for the Bank or the Company under the laws of
Illinois, and the facts and representations provided by the Company and
the Bank and relied upon in the rendering of such opinions are accurate
and complete, and neither the Company nor the Bank have taken any
action inconsistent therewith.
(xii) Neither the Company, Bank nor the Subsidiaries is in violation of
any rule or regulation of the Office, the FDIC or any state department
or agency regulating the banking or other activities of the Company,
Bank or the Subsidiaries that has resulted or could result in any
enforcement action against the Company, the Bank or the Subsidiaries,
or their officers or directors, that might have a Material Adverse
Effect.
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(xiii) Xxxxxx & Company, Inc. the firm that prepared the independent
appraisal included in the Conversion Application, is independent with
respect to the Company, Bank and the Subsidiaries within the meaning of
the Office and FDIC Regulations. The Company and Bank believe such firm
to be experienced and expert in providing appraisals of thrift
institutions, and nothing has come to the attention of the Company or
the Bank which has caused either of them to believe that the appraisal
included in the Conversion Application was not prepared in accordance
with the requirements of the Office and FDIC Regulations.
(xiv) Olive LLP, the firm that certified the consolidated financial
statements of Bank filed as part of the Registration Statement and the
Conversion Application, is independent with respect to the Company,
Bank and any Subsidiaries as required by the Securities Act, the
Securities Act Regulations, the Code of Professional Ethics of the
American Institute of Certified Public Accountants, and Illinois State
Law, and nothing has come to the attention of the Company or Bank which
has caused either of them to believe that such firm is not independent
within the meaning of such provisions.
(xv) The consolidated financial statements and related notes which are
included in the Registration Statement and the Prospectus fairly
present the financial condition, results of operations, retained
earnings and cash flows of the Bank on a consolidated basis at the
respective dates thereof and for the respective periods covered thereby
and comply as to form in all material respects with the applicable
accounting requirements of the Securities Act Regulations and the
Office and FDIC Regulations. Such financial statements have been
prepared in accordance with generally accepted accounting principles
("GAAP") consistently applied throughout the periods involved, except
as set forth therein, and such financial statements are consistent with
financial statements and other reports filed by Bank with the Office,
and FDIC, except as GAAP may otherwise require. The financial tables in
the Prospectus accurately present the information purported to be shown
thereby at the respective dates thereof and for the respective periods
covered thereby.
(xvi) There has been no material change in the financial condition
(financial or otherwise), results of operations, business, assets or
properties, of the Company, Bank and the Subsidiaries, taken as a
whole, since the latest date as of which such condition is set forth in
the Prospectus, except as set forth therein; and the capitalization,
assets, properties and business of each of the Company, Bank and the
Subsidiaries conform in all material aspects to the descriptions
thereof contained in the Prospectus. None of the Company, the Bank and
the Subsidiaries, has any material liabilities of any kind, contingent
or otherwise, except as set forth in the Prospectus.
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(xvii) There has been no breach or default (or the occurrence of any
event which, with notice or lapse of time or both, would constitute a
default) under, or creation or imposition of any lien, charge or other
encumbrance upon any of the properties or assets of the Company, Bank
or the Subsidiaries pursuant to any of the terms, provisions or
conditions of any agreement, contract, indenture, lease, bond,
debenture, note, instrument or obligation to which the Company, Bank or
the Subsidiaries is a party or by which any of them or any of their
respective assets or properties may be bound or is subject or any
violation of any governmental license or permit or any enforceable
published law, administrative regulation or order or court order, writ,
injunction or decree, which breach, default, lien, charge, encumbrance
or violation could have a Material Adverse Effect; all agreements which
are material to the financial condition, results of operations,
business, assets or properties of the Company, the Bank and the
Subsidiaries, taken as a whole, are in full force and effect, and no
party to any such agreement has instituted or, to the best knowledge of
the Company and Bank, threatened any action or proceeding wherein the
Company, the Bank or the Subsidiaries would be alleged to be in default
thereunder.
(xviii) Neither the Company, Bank nor the Subsidiaries is in violation
of its respective charter, certificate or articles of incorporation or
bylaws. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby by the Company and
Bank do not conflict with or result in a breach of the charter,
certificate or articles of incorporation or bylaws of the Company, Bank
(in either mutual or stock form) or the Subsidiaries, or violate,
conflict with or constitute a material breach or default (or an event
which, with notice or lapse of time or both, would constitute a
default) under, give rise to any right of termination, cancellation or
acceleration contained in, or result in the creation or imposition of
any lien, charge or other encumbrance upon any of the properties or
assets of the Company, Bank or any Subsidiaries pursuant to any of the
terms, provisions or conditions of, any agreement, contract, indenture,
lease, bond, debenture, note, instrument or obligation to which the
Company, the Bank or the Subsidiaries is a party (other than the
establishment of a liquidation account pursuant to the Plan) or violate
any governmental license or permit or any law, administrative
regulation or order or court order, writ, injunction or decree (subject
to the satisfaction of certain conditions imposed by the Office in
connection with their approval of, or notice of intent not to object
to, the Conversion Application or FDIC in connection with its approval
of the Notice), which breach, default, encumbrance or violation could
have a Material Adverse Effect.
(xix) Subsequent to the respective dates as of which information is
given in the Registration Statement and Prospectus, except as otherwise
may be indicated or
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contemplated therein, neither the Company, the Bank nor the
Subsidiaries has issued any securities which will remain issued at the
Closing Date (as defined below) or incurred any liability or
obligation, direct or contingent, or borrowed money, except borrowings
or liabilities incurred in the ordinary course of business, or entered
into any other transaction not in the ordinary course of business and
not consistent with prior practices, which is material in light of the
business of the Company, Bank and the Subsidiaries, taken as a whole.
(xx) Upon consummation of the Conversion, the authorized, issued and
outstanding equity capital of the Company shall be within the range set
forth in the Prospectus under the heading "Capitalization", and no
equity securities of the Company shall be outstanding immediately prior
to the Closing Date other than shares of capital stock issued in
connection with the formation of the Company, which shares shall be
canceled on the Closing Date. The issuance and the sale of the Shares
of the Company have been duly authorized by all necessary action of the
Company and approved by the Office and FDIC and, when issued in
accordance with the terms of the Plan and paid for as set forth in the
Prospectus, shall be validly issued, fully paid and nonassessable and
shall conform in all material respects to the description thereof
contained in the Prospectus; the issuance of the Shares is not subject
to preemptive rights, except as set forth in the Prospectus; and good
title to the Shares will be transferred by the Company upon issuance
thereof against payment therefor, free and clear of all claims,
encumbrances, security interests and liens against the Company
whatsoever. The issuance and sale of the capital stock of the Bank to
the Company has been duly authorized by all necessary action of the
Bank and the Company and all appropriate regulatory authorities
(subject to the satisfaction of various conditions imposed by the
Office in connection with its approval of the Conversion Application,
the FDIC in connection with its approval of the Notice and the Board in
connection with its approval of the Holding Company Application), and
such capital stock, when issued in accordance with the terms of the
Plan, will be validly issued, fully paid and nonassessable and will
conform in all material respects to the description thereof contained
in the Prospectus.
(xxi) No approval of any regulatory or supervisory or other public
authority is required in connection with the execution and delivery of
this Agreement or the issuance of the Shares, except such approvals as
have been obtained, except for the declaration of effectiveness by the
Commission of any required post-effective amendment of the Registration
Statement not yet filed, except as may be required by the "blue sky" or
securities laws of various jurisdictions, and except as may be required
by the conditions of the approval of, or non-objection to, the
Conversion Application by the Office and the Notice by the FDIC.
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(xxii) All contracts and other documents required to be filed as
exhibits to the Registration Statement, the Conversion Application,
Notice or the Holding Company Application have been filed with the
Commission, the Office, the FDIC or Board or all of them, as the case
may be.
(xxiii) The Company, the Bank and the Subsidiaries have timely filed
all required federal, state and local franchise tax returns, and no
deficiency has been asserted with respect to such returns by any taxing
authorities; and the Company, the Bank and the Subsidiaries have paid
all taxes that have become due and, to the best of knowledge of the
Company and the Bank, have made adequate reserves for future tax
liabilities, except where any failure to make such filings, payments
and reserves, or the assertion of such a deficiency, would not have a
Material Adverse Effect.
(xxiv) All of the loans represented as assets of the Bank as of the
most recent date for which financial condition data is included in the
Prospectus meet or are exempt from all requirements of federal, state
or local law pertaining to lending, including without limitation truth
in lending (including the requirements of Regulation Z and 12 C.F.R.
Part 226), real estate settlement procedures, consumer credit
protection, equal credit opportunity and all disclosure laws applicable
to such loans, except for violations which, if asserted, would not have
a Material Adverse Effect.
(xxv) The records of depositors, account holders, borrowers and other
members of the Bank delivered to Trident by the Bank or its agent for
use during the Conversion are believed to be accurate, reliable and
complete in all material respects.
(xxvi) Neither the Company, the Bank nor the Subsidiaries or, to the
best knowledge of the Company and the Bank, the employees of the
Company, the Bank or the Subsidiaries, has made any payment of funds of
the Company, the Bank or the Subsidiaries prohibited by law, and no
funds of the Company, the Bank or the Subsidiaries have been set aside
to be used for any payment prohibited by law.
(xxvii) To the best knowledge of the Company and the Bank, the Company,
the Bank and the Subsidiaries are in compliance with all laws, rules
and regulations relating to environmental protection, and neither the
Company, the Bank nor any Subsidiaries is subject to liability under
the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended, or any similar law, except for violations
which, if asserted, would not have a Material Adverse Effect. There are
no actions, suits, regulatory investigations or other proceedings
pending or, to the best knowledge of the Company or the Bank,
threatened against the Company, the Bank or the Subsidiaries relating
to environmental protection. To the best knowledge of the Company and
the Bank, no disposal, release or discharge of hazardous or toxic
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substances, pollutants or contaminants, including petroleum and gas
products, as any of such terms may be defined under federal, state or
local law, has been caused by the Company, the Bank or the Subsidiaries
or, to the best knowledge of the Company and the Bank, except as
disclosed in the Prospectus, has occurred on, in or at any of the
facilities or properties owned or leased by the Company, the Bank or
the Subsidiaries or on any properties pledged to the Bank or the
Subsidiaries as security for any indebtedness, except such disposal,
release or discharge as would not reasonably be expected to have a
Material Adverse Effect.
(xxviii) All documents delivered by the Company, the Bank or the
Subsidiaries or their representatives in connection with the issuance
and sale of the Common Stock, except for those documents that were
prepared by parties other than the Company, the Bank, the Subsidiaries
or their representatives, were, on the dates on which they were
delivered, true, complete and correct in all material respects.
(xxix) At the Closing Date, the Company and the Bank will have
completed the conditions precedent to, and will have conducted the
Conversion in all material respects in accordance with, the Plan, the
Office Regulations, FDIC Regulations and all other applicable laws,
regulations, published decisions and orders, including all terms,
conditions, requirements and provisions precedent to the Conversion
imposed by the Office.
(b) Trident represents and warrants to the Company and the Bank that:
(i) Trident is registered as a broker-dealer with the NASD.
(ii) Trident is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation, with full
corporate power and authority to provide the services to be furnished
to the Company and the Bank hereunder.
(iii) The execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby have been duly and validly
authorized by all necessary action on the part of Trident, and this
Agreement is a legal, valid and binding obligation of Trident,
enforceable in accordance with its terms (except as the enforceability
thereof may be limited by bankruptcy, insolvency, moratorium,
reorganization or similar laws relating to or affecting the enforcement
of creditors' rights generally or the rights of creditors of registered
broker-dealers whose accounts may be protected by the Securities
Investor Protection Corporation or by general equity principles,
regardless of whether such principles are applied in a proceeding in
equity or at law, and except to the extent that the provisions of
Sections 8 and 9 hereof may be unenforceable as against public policy
or by applicable law.
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(iv) Trident and, to Trident's best knowledge, its employees, agents
and representatives who shall perform any of the services required
hereunder to be performed by Trident, shall be duly authorized and
shall have all licenses, approvals and permits necessary to perform
such services, and Trident is a registered selling agent in the
jurisdictions in which the Company is relying on such registration for
the sale of the Shares, and will remain so registered until the
Conversion is consummated or terminated.
(v) The execution and delivery of this Agreement by Trident, the
fulfillment of the terms set forth herein and the consummation of the
transactions contemplated hereby shall not violate or conflict with the
charter or bylaws of Trident or violate, conflict with or constitute a
breach of, or default (or an event which, with notice or lapse of time,
or both, would constitute a default) under, any agreement, indenture or
other instrument by which Trident is bound or under any governmental
license or permit or any law, administrative regulation, authorization,
approval or order or court decree, injunction or order which breach,
default or violation could have a material adverse effect on the
condition (financial or otherwise), operations, business, assets or
properties of Trident or its ability to perform its obligations under
this Agreement.
(vi) Any funds received by Trident to purchase Common Stock will be
handled in accordance with Rule 15c2-4 under the Securities Exchange
Act of 1934, as amended ("Exchange Act").
(vii) No action or proceeding against Trident before the Commission,
the NASD, any state securities commission, or any state or federal
court is pending or, to Trident's best knowledge, threatened concerning
Trident's activities as a broker-dealer which could have a material
adverse effect on the condition (financial or otherwise), operations,
business, assets or properties of Trident or its ability to perform its
obligations under this Agreement.
3. EMPLOYMENT OF TRIDENT; SALE AND DELIVERY OF THE SHARES. On the basis
of the representations and warranties herein contained, but subject to the terms
and conditions herein set forth, the Company and the Bank hereby employ Trident
as their agent to utilize its best efforts to assist the Company with the
Company's sale of the Shares in the Offerings, and Trident hereby accepts such
employment. The employment of Trident hereunder shall terminate (a) forty-five
(45) days after the Subscription Offering closes, unless the Company and the
Bank, with the approval of the Office and FDIC, if required, are permitted to
extend such period of time, or (b) upon consummation of the Conversion,
whichever date shall first occur.
In the event the Company is unable to sell a minimum of 892,500 Shares
(or such lesser amount as the Office and FDIC may permit) within the period of
Trident's employment, this
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Agreement shall terminate, and the Company and the Bank shall refund promptly to
any persons who have subscribed for any of the Shares, the full amount which
they may have received from them, together with interest as provided in the
Prospectus, and no party to this Agreement shall have any obligation to the
other party hereunder, except as set forth in Sections 3(c) and 3(d) below and
Sections 6, 8, 9 and 10 hereof. Appropriate arrangements for placing the funds
received from subscriptions for Shares in special interest-bearing accounts with
the Bank until all Shares are sold and paid for will be made prior to the
commencement of the Subscription Offering, with provision for prompt refund to
the purchasers as set forth above, or for delivery to the Company if all Shares
are sold.
If all conditions precedent to the consummation of the Conversion are
satisfied, including the sale of all Shares required by the Plan to be sold, the
Company agrees to issue or have issued such Shares and to release for delivery
certificates to subscribers for such Shares on or as soon as possible following
the Closing Date against payment to the Company by any means authorized pursuant
to the Prospectus, at the principal executive office of the Bank or at such
other place as shall be agreed upon between the parties hereto. The date upon
which the Company shall release or deliver the Shares sold in the Offerings, in
accordance with the terms hereof, is herein called the "Closing Date."
Trident agrees either (a) upon receipt of an executed order form of a
subscriber to forward to the Bank for deposit in a segregated account the
offering price of the Common Stock ordered on or before twelve noon on the next
business day following receipt of an order form by Trident or (b) to solicit
indications of interest in which event (i) Trident will subsequently contact any
potential subscriber indicating interest to confirm the interest and give
instructions to execute and return an order form or to receive authorization to
execute the order form on the subscriber's behalf, (ii) Trident will mail
acknowledgments of receipt of orders to each subscriber confirming interest on
the business day following such confirmation, (iii) Trident will debit accounts
of such subscribers on the third business day ("Debit Date") following receipt
of the confirmation referred to in (i), and (iv) Trident will forward completed
order forms together with such funds to the Bank on or before twelve noon on the
next business day following the Debit Date for deposit in a segregated account.
Trident acknowledges that if the procedure in (b) is adopted, subscribers' funds
are not required to be in their accounts until the Debit Date.
The Company and the Bank agree to pay Trident the following
compensation and expense reimbursement for its services hereunder as set forth
in Exhibit A hereto. Such fees shall be paid in next-day funds on the Closing
Date:
(a) A records management fee in the amount of $20,000.
(b) A commission equal to one and three quarters percent (1.75%) of the
aggregate dollar amount of the Shares sold in the Subscription
Offering, Community Offering (excluding
Trident Securities
Page 13
Shares sold to the Bank's directors, executive officers and their
"Associates", as defined in the Plan, of and shares sold to employee
benefit plans). For stock sold by other NASD member firms under
selected dealers agreements, the commission shall not exceed a fee to
be agreed upon jointly by Trident and the Bank to reflect market
requirements at the time of the stock allocation in a Syndicated
Community offering. All such fees shall be paid in next-day funds on
the Closing Date.
(c) Reimbursement for all allocable out-of-pocket expenses, including
but not limited to travel, food, lodging and legal fees, incurred by
Trident whether or not the Conversion is consummated. Full
reimbursement of Trident shall be made in next-day funds on the Closing
Date or, if the Conversion is not completed and is terminated for any
reason, within ten (10) business days of receipt by the Company of a
written request from Trident detailing its allocable expenses. Trident
acknowledges receipt of a $10,000 advance payment from the Bank, which
shall be credited against the total reimbursement due Trident
hereunder. In the event that a resolicitation or other event causes the
offerings to be extended beyond the original expiration date of the
Subscription Offering, as set forth in the Prospectus, Trident shall be
reimbursed of its allocated expenses incurred during the extended
period as well.
(d) Reimbursement for any expenses of the Company and the Bank set
forth in Section 6 hereof to the extent paid by Trident on behalf of
the Company or the Bank. Full reimbursement shall be made in next-day
funds on the Closing Date or, if the Conversion is not completed and is
terminated for any reason, within ten (10) business days of receipt by
the Company and the Bank of a written request from Trident detailing
such expenses.
4. OFFERING. Subject to the provisions of Section 7 hereof, Trident is
assisting the Company and the Bank on a best efforts basis in offering a minimum
of 892,500 and a maximum of 1,207,500 Shares, subject to adjustment up to
1,338,625 Shares, in the Offerings, subject to such other adjustments as may be
permitted by the Office and FDIC. The Shares are to be offered to the public at
the price set forth on the cover page of the Prospectus and the first page of
this Agreement.
5. FURTHER AGREEMENTS. The Company and the Bank jointly and severally
covenant and agree that:
(a) Subsequent to the respective dates as of which information is given
in the Registration Statement and Prospectus and through and including
the Closing Date, except as otherwise may be indicated or contemplated
therein, neither the Company, the Bank nor the Subsidiaries will issue
any securities which will remain issued at the Closing Date or incur
any liability or obligation, direct or contingent, or borrow money,
except borrowings or liabilities in the ordinary course of business and
consistent with prior practices, which is material in light of the
financial condition or operations of the Company, the Bank and the
Subsidiaries, taken as a whole.
Trident Securities
Page 14
(b) If any Shares remain unsubscribed following completion of the
Subscription Offering and the Community Offerings, the Company (i)
will, if required by the Securities Act Regulations, promptly file with
the Commission a post-effective amendment to such Registration
Statement relating to the results of the Subscription and the Community
Offerings, any additional information with respect to the proposed plan
of distribution and any revised pricing information or (ii) if no such
post-effective amendment is required, will, if required by the
Securities Act Regulations, file with the Commission a prospectus or
prospectus supplement containing information relating to the results of
the Subscription and Community Offerings and pricing information
pursuant to Rule 424(c) of the Securities Act Regulations, in either
case in a form reasonably acceptable to the Company and Trident.
(c) Upon consummation of the Conversion, the authorized, issued and
outstanding equity capital of the Company shall be within the range as
set forth in the Prospectus under the caption "Capitalization," and no
Common Stock of the Company shall be outstanding immediately prior to
the Closing Date (other than shares of Common Stock issued in
connection with the initial capitalization of the Company, which shares
will be canceled upon consummation of the Conversion), and the
certificates representing the Shares will conform in all material
respects withe requirements of applicable laws and regulations..
(d) Upon amendment of the Bank's certificate of incorporation and
bylaws as provided in the Office and FDIC Regulations and completion of
the sale by the Company of the Shares as contemplated by the
Prospectus, (i) the Bank will be converted pursuant to the Plan to an
Illinois-chartered capital stock savings bank with full power and
authority to own its property and conduct its business as described in
the Prospectus, (ii) all of the authorized and outstanding capital
stock of the Bank will be owned of record and beneficially by the
Company, and (iii) the Company will have no direct subsidiaries other
than the Bank.
(e) The Company shall deliver to Trident, from time to time, such
number of copies of the Prospectus as Trident reasonably may request.
The Company authorizes Trident to use the Prospectus in any lawful
manner in connection with the offer and sale of the Shares.
(f) The Company will notify Trident immediately, and confirm the notice
in writing, (i) when any post-effective amendment to the Registration
Statement becomes effective or any supplement to the Prospectus has
been filed, (ii) of the issuance by the Commission of any stop order
relating to the Registration Statement or of the initiation or the
threat of any proceedings for that purpose, (iii) of the receipt of any
notice with respect to the suspension of the qualification of the
Shares for offering or sale in any jurisdiction, (iv) of the receipt of
any comments from the staff of the Commission relating to the
Registration Statement and (v) of the issuance by the Office or FDICof
any stop order relating to the Conversion or the use of the Prospectus
or Proxy Statement or the initiation or threat of any proceedings for
that purpose. If the Commission enters a stop order relating to the
Registration Statement
Trident Securities
Page 15
at any time, the Company will make every reasonable effort to obtain
the lifting of such order at the earliest possible moment.
(g) During the time when a prospectus is required to be delivered under
the Securities Act, the Company will comply in all material respects
with all requirements imposed upon it by the Securities Act and by the
Securities Act Regulations to permit the continuance of offers and
sales of or dealings in the Shares in accordance with the provisions
hereof and the Prospectus. If during the period when the Prospectus is
required to be delivered in connection with the offer and sale of the
Shares any event relating to or affecting the Company, the Bank or any
Subsidiaries, shall occur as a result of which it is necessary, in the
reasonable opinion of counsel for Trident after consultation with
counsel for the Company and the Bank, to amend or supplement the
Prospectus in order to make the Prospectus not false or misleading in
light of the circumstances existing at the time it is delivered to a
purchaser of the Shares, the Company shall prepare and furnish to
Trident a reasonable number of copies of an amendment or amendments or
of a supplement or supplements the Prospectus (in form and substance
reasonably satisfactory to counsel for Trident) which shall amend or
supplement the Prospectus so that, as amended or supplemented, the
Prospectus shall not contain an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances existing at the time the
Prospectus is delivered to a purchaser of the Shares, not misleading.
The Company will not file or use any amendment or supplement to the
Registration Statement or the Prospectus unless Trident has been first
furnished a copy or to which Trident shall reasonably object after
having been furnished such copy. For the purposes of this subsection
the Company and the Bank shall furnish such information with respect to
themselves as Trident from time to time may reasonably request.
(h) The Company and the Bank will take all necessary action and furnish
to appropriate counsel such information as may be required to qualify
or register the Shares for offer and sale by the Company under the
securities or blue sky laws of such jurisdictions as Trident and the
Company or its counsel may agree upon; provided, however, that the
Company shall not be obligated to qualify as a foreign corporation to
do business under the laws of any such jurisdiction. In each
jurisdiction where such qualification or registration shall be
effected, the Company, unless Trident agrees that such action is not
necessary or advisable in connection with the distribution of the
Shares, shall file and make such statements or reports as are, or
reasonably may be, required by the laws of such jurisdiction.
(i) Appropriate entries will be made in the financial records of the
Bank to establish a liquidation account in accordance with the Office
and FDIC Regulations.
(j) The Company will file a registration statement for the Common Stock
under Section 12(b) or Section 12(g) of the Exchange Act, as
applicable, prior to completion of the
Trident Securities
Page 16
Offerings and shall request that such registration statement be
effective upon or before completion of the Conversion. The Company
shall maintain the effectiveness of such registration for a minimum
period of three (3) years or for such shorter period as may be required
by applicable law.
(k) The Company will make generally available to its security holders
as soon as practicable, but not later than 90 days after the close of
the period covered thereby, an earnings statement (in form complying
with the provisions of Rule 158 of the Securities Act Regulations)
covering a twelve-month period beginning not later than the first day
of the Company's fiscal quarter next following the effective date (as
defined in said Rule 158) of the Registration Statement.
(l) For a period of three (3) years from the date of this Agreement,
the Company will furnish to Trident, upon request and as soon as
publicly available after the end of each fiscal year, a copy of its
annual report to shareholders for such year; and the Company will
furnish to Trident (i) as soon as publicly available, a copy of each
report or definitive proxy statement of the Company filed with the
Commission under the Exchange Act or mailed to shareholders, and (ii)
from time to time, such other public information concerning the Company
as Trident may reasonably request.
(m) The Company will use the net proceeds from the sale of the Shares
in the manner set forth in the Prospectus.
(n) The Company will not deliver the Shares until each and every
condition set forth in Section 7 hereof has been satisfied, unless such
condition is waived in writing by Trident.
(o) The Company and the Bank will advise Trident as to the allocation
of the deposits of the Bank's depositors and as to the allocation of
votes of its voting members, and in the event of an oversubscription
for Shares in the Offerings, will determine and provide Trident with
final instructions as to the allocation of the Shares and such
information shall be accurate, reliable and complete. Trident shall be
entitled to rely upon such information and instructions and shall have
no liability related to its reliance thereon, including, without
limitation, any liability for or related to any denial or satisfaction
of any subscription in whole or in part based on its good faith
reliance on such information and instructions.
(p) The Company and the Bank will take such actions and furnish such
information as are reasonably requested by Trident in order for Trident
to comply with the NASD's "Interpretation Relating to Free-Riding and
Withholding."
(q) At the Closing Date, the Company and the Bank will have completed
all conditions precedent to, and shall have conducted the Conversion in
all material respects in accordance
Trident Securities
Page 17
with, the Plan, Office and FDIC Regulations and all other applicable
laws, regulations, published decisions and orders, including all terms,
conditions, requirements and provisions precedent to the Conversion
imposed by the Office and FDIC.
(r) The Company will use its best efforts to obtain approval for and
maintain quotation of its shares of common stock on the OTC Bulletin
Board effective on or prior to the Closing Date.
(s) The Company will not sell or issue, contract to sell or otherwise
dispose of, for a period of 90 days after the Closing Date, without
Trident's prior written consent, any shares of common stock other than
as described in the Prospectus.
(t) The Company and the Bank will maintain appropriate arrangements for
depositing all funds received from persons mailing subscriptions for or
orders to purchase Common Stock in the Subscription and Community
Offerings on an interest bearing basis at the rate described in the
Prospectus until the Closing Date and satisfaction of all conditions
precedent to the delivery of certificates for the Shares to subscribers
or until refunds of such funds have been made to the persons entitled
thereto in accordance with the Plan and as described in the Prospectus.
6. PAYMENT OF EXPENSES. Whether or not the Conversion is
consummated, the Company and the Bank shall pay all expenses of the
Conversion, including, but not limited to, the following expenses: (a)
all regulatory filing fees, including but not limited to those payable
to the Commission, the Office, FDIC, state blue sky authorities and the
NASD (including fees payable to the NASD for Trident's filing pursuant
to the NASD Corporate Finance Rule), (b) all stock issue and transfer
taxes which may be payable with respect to the sale of the Shares, (c)
attorneys' fees of the Company and the Bank, (d) attorneys' fees
relating to any required state blue sky laws research and filings, (e)
telephone charges, (f) air freight, (g) rental equipment, (h) supplies,
(i) transfer agent and registrar fees and expenses, (j) auditing and
accounting fees and expenses, (k) fees for appraisals and business
plans, (l) conversion agent charges, (m) costs of printing and mailing
all documents necessary in connection with the Conversion, and (n)
slide production expenses in connection with any community investor
meetings to be held in connection with the Conversion.]
7. CONDITIONS OF TRIDENT'S OBLIGATIONS. Except as may be waived in
writing by Trident, the obligations of Trident as provided herein shall be
subject to the accuracy of the representations and warranties contained in
Section 2 hereof as of the date hereof and as of the Closing Date, to the
performance by the Company and the Bank of their obligations hereunder, and to
the following conditions:
(a) On the Closing Date, Trident shall receive the favorable opinion of
Elias, Matz,
Trident Securities
Page 18
Xxxxxxx and Xxxxxxx L.L.P., special counsel for the Company and the
Bank, dated the Closing Date, addressed to Trident, in form and
substance satisfactory to counsel for Trident and stating that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
the State of Delaware; the Bank is duly organized and validly
existing as a mutual savings bank under the laws of Illinois;
and the Company and the Bank have full power and authority to
own their properties and conduct their businesses as described
in the Prospectus;
(ii) the Bank is a member of the Federal Home Loan Bank of
Chicago, and the deposit accounts of the Bank are insured by
the SAIF up to the applicable legal limits, and to such
counsel's Actual Knowledge, no actions or proceedings are
pending or threatened to revoke such membership or insurance
coverage;
(iii) to such counsel's Actual Knowledge, the Bank has no
direct or indirect subsidiary corporations, other than the
Subsidiaries;
(iv) neither the Company nor the Bank is required to be
registered as an investment company under the Investment
Company Act of 1940;
(v) the Company is qualified to do business and is in good
standing as a foreign corporation in each jurisdiction where
the ownership or leasing of its properties or the conduct of
its business of which such counsel has Actual Knowledge
requires such qualification, unless the failure to be so
qualified would not reasonably be expected to have a Material
Adverse Effect;
(vi) the Plan has been duly adopted by the Boards of Directors
of the Bank and the Company and approved by the members of the
Bank; the Plan complies in all material respects with, and to
such counsel's Actual Knowledge, the Conversion has been
effected by the Company and the Bank in all material respects
in accordance with, the Office and FDIC and Board Regulations
and applicable Office and FDIC and Board approvals issued
thereunder; to such counsel's Actual Knowledge, all of the
terms, conditions, requirements and provisions with respect to
the filing or submission of the Registration Statement, the
Conversion Application, Notice and the Holding Company
Application by the Company or the Bank, have been complied
with by the Company and the Bank in all material respects
except for reports and items required to be filed or submitted
after the Closing Date; and, to such counsel's Actual
Knowledge, no person has sought to obtain regulatory or
judicial review of the final action of the Office in approving
the Plan;
Trident Securities
Page 19
(vii) the Company has authorized Common Stock as set forth in
the Registration Statement and the Prospectus, and the
description thereof in the Registration Statement and the
Prospectus is accurate and complete in all material respects;
(viii) upon the effectiveness of the Bank's Stock Certificate
of Incorporation and Bylaws in accordance with the respective
Office and FDIC Regulations and the completion of the sale by
the Company of the Shares as contemplated by the Prospectus
and Plan, (a) the Bank will be converted pursuant to the Plan
to an Illinois capital stock savings bank, with full power and
authority to own its property and conduct its business as
described in the Prospectus, and (b) all of the outstanding
capital stock of the Bank will be owned of record and, to such
counsel's Actual Knowledge, beneficially by the Company free
and clear of all material liens, charges, encumbrances and
restrictions;
(ix) the issuance and sale of the Shares have been duly
authorized by all necessary corporate action on the part of
the Company; the Shares, upon receipt of consideration and
issuance in accordance with the terms of the Plan and this
Agreement, will be validly issued, fully paid, nonassessable
and, except as disclosed in the Prospectus, free of statutory
preemptive rights, and purchasers of such shares from the
Company, upon issuance thereof against payment therefor, will
acquire such shares to such counsel's Actual Knowledge free
and clear of all material claims, encumbrances, security
interests and liens created by the Company;
(x) the certificates for the Shares comply in all material
respects with the applicable law of the jurisdiction in which
the Company is incorporated;
(xi) the issuance and sale of the capital stock of the Bank to
the Company have been duly authorized by all necessary
corporate action of the Bank and the Company and have received
the approval of the Office and FDIC and Board, and such
capital stock, upon receipt of payment and issuance in
accordance with the terms of the Plan, will be validly issued
and fully paid and, except as disclosed in the Prospectus,
free of preemptive rights; the Company upon issuance thereof
against payment to the Bank of a portion of the net proceeds
from the sale of the Shares, will acquire such shares which,
to such counsel's Actual Knowledge, are free and clear of all
material claims, encumbrances, security interests and liens;
(xii) subject to the satisfaction of the conditions to the
Office's approval and the FDIC notice of intention not to
object to the Conversion Application, FDIC approval of the
Notice and Board approval of the Holding Company Application,
no further approval, authorization, consent or other order of
or action by any regulatory agency
Trident Securities
Page 20
is required of the Company and the Bank in connection with the
execution and delivery of this Agreement, the issuance and
sale of the Shares and the consummation of the Conversion,
except with respect to the issuance of the Bank's Stock
Certificate of Incorporation by the Office, and except as may
be required under the blue sky securities laws of various
jurisdictions and the regulations of the NASD (as to which no
opinion need be rendered in such letter);
(xiii) the execution and delivery of this Agreement and the
consummation of the Conversion have been duly authorized by
all necessary corporate action on the part of each of the
Company and the Bank, and this Agreement is a legal, valid and
binding obligation of each of the Company and the Bank,
enforceable in accordance with its terms except as the
enforceability thereof may be limited by (i) bankruptcy,
insolvency, moratorium, reorganization, receivership,
conservatorship or other similar laws relating to or affecting
the enforcement of creditors' rights generally or the rights
of creditors of depository banks whose accounts are insured by
the FDIC or savings and loan holding companies the accounts of
whose subsidiaries are insured by the FDIC; (ii) general
equity principles, regardless of whether such enforceability
is considered in a proceeding in equity or at law; or (iii)
laws relating to the safety and soundness of insured
depository banks and their affiliates, and except to the
extent that the provisions of Sections 8 and 9 hereof may be
unenforceable as against public policy or applicable law,
including but not limited to, Section 23A;
(xiv) except as set forth in the Prospectus, to such counsel's
Actual Knowledge, the Bank is not in violation of any
directive from the Office to make any change in the method of
conducting its business and there are no legal or governmental
proceedings pending or threatened against or involving the
assets of the Company or the Bank, which violation or
proceedings would reasonably be expected to have a Material
Adverse Effect (provided that for this purpose such counsel
need not regard any litigation or governmental proceeding to
be "threatened" unless the potential litigant or government
authority has manifested to the management of the Company or
the Bank, or to such counsel, a present intention to initiate
such litigation or proceeding);
(xv) the statements in the Prospectus under the captions
"Regulation", "Taxation", "We Intend to Pay Quarterly Cash
Dividends", "Restrictions on Acquisition of First BancTrust
Corporation and First Bank", "First Bank meets all of its
Regulatory Capital Requirements," "Description of Capital
Stock of First BancTrust Corporation" and "Business of First
Bank - Legal Proceedings" insofar as they are, or refer to,
statements of federal law or legal conclusions (excluding
financial or statistical data or stock valuation information
included therein, as to which an
Trident Securities
Page 21
opinion need not be expressed), have been prepared or reviewed
by such counsel and are accurate in all material respects;
(xvi) the Conversion Application, Notice and the Holding
Company Application have been approved by the Office, FDIC and
Board respectively, and the Prospectus and the Proxy Statement
have been authorized for use by the Office and FDIC; the
Registration Statement and any post-effective amendment
thereto have been declared effective by the Commission; and no
proceedings are pending by or before the Commission or the
Office or FDIC or Board seeking to revoke or rescind the
orders declaring the Registration Statement or any
post-effective amendment thereto effective or approving the
Conversion Application, Notice or the Holding Company
Application and, to such counsel's Actual Knowledge, no such
proceedings are contemplated or threatened (provided that for
this purpose such counsel need not regard any litigation or
governmental proceeding to be "threatened" unless the
potential litigant or government authority has manifested to
the management of the Company or the Bank, or to such counsel,
a present intention to initiate such litigation or
proceeding);
(xvii) the execution and delivery of this Agreement and the
consummation of the Conversion by the Company and the Bank do
not (i) violate or conflict with the charter, certificate of
incorporation or bylaws of the Company, the Bank (in either
mutual or stock form) or the Subsidiaries or (ii) violate the
Office, FDIC or Board Regulations or, to such counsel's Actual
Knowledge, any law or administrative regulation or any court
order, writ, injunction or decree to which the Company and the
Bank is a party (subject to the satisfaction of certain
post-closing conditions imposed by the Office in connection
with its approval of the Conversion Application, the FDIC in
connection with its approval of the Notice or the Board in
connection with its approval of the Holding Company
Application);
(xix) the Conversion Application, Notice, the Holding Company
Application, the Registration Statement, the Prospectus and
the Proxy Statement, in each case, as amended and
supplemented, comply as to form in all material respects with
the requirements of the Securities Act, the Securities Act
Regulations and the Office and FDIC Regulations, as the case
may be (except as information provided in writing by Trident
with respect to Trident included therein and financial
statements, notes to financial statements, financial tables
and other financial and statistical data and appraisal
information included therein, as to which no opinion need be
rendered); to such counsel's Actual Knowledge, all documents
and exhibits required to be filed with the Conversion
Application, Notice and the Registration Statement have been
so filed; and the descriptions in the Conversion Application,
Notice and the Registration Statement of the documents filed
as exhibits to the Registration
Trident Securities
Page 22
Statement and the Conversion Application, and Notice are
accurate in all material respects.
In rendering such opinions, such counsel may rely as to
certain matters of fact on certificates of executive officers and
directors of the Company and the Bank and certificates of public
officials delivered pursuant hereto. Such counsel may assume that any
agreement is the valid and binding obligation of any parties to such
agreement other than the Company and the Bank. As used in such
counsel's opinion, the phrase "Actual Knowledge" shall mean the
conscious awareness of facts or other information by
_______________________________ __________________________________ who
are all the lawyers employed by such counsel who have had active
involvement in representing the Company or the Bank, and except to the
extent stated in such opinion, such counsel will not be deemed to have
undertaken any independent investigation or inquiry to determine the
existence or absence of any facts. For purposes of such opinion, no
proceeding shall be deemed to be pending, no order or stop order shall
be deemed to be issued, and no action shall be deemed to be instituted
unless, in each case, a director or executive officer of the Company or
the Bank, or its counsel, shall have received a copy of such
proceeding, order, stop order or action. Such opinion may be limited to
statutes, regulations and judicial interpretations and to facts as they
exist as of the date of such opinion. In rendering such opinion, such
counsel need assume no obligation to revise or supplement it should
such statutes, regulations and judicial interpretations be changed
thereafter by legislative or regulatory action, judicial decision or
otherwise.
(b) On the Closing Date, Trident shall receive the favorable opinion of
____________________, local counsel for the Company and the Bank, dated
the Closing Date, addressed to Trident, in form and substance
satisfactory to counsel for Trident and stating that:
(i) the Subsidiaries are duly organized and validly existing
as corporations in good standing under the laws of Illinois;
and the Subsidiaries have full power and authority to own
their respective properties and conduct their respective
businesses as described in the Prospectus;
(ii) the Bank and the Subsidiaries are each duly qualified to
do business and are in good standing as a foreign corporation
in each jurisdiction where the ownership or leasing of its
properties or the conduct of its business of which such
counsel has Actual Knowledge requires such qualification,
unless the failure to be so qualified would not reasonably be
expected to have a Material Adverse Effect;
(iii) to such counsel's Actual Knowledge, the Bank and the
Subsidiaries have obtained all licenses, permits and other
governmental authorizations required for the
Trident Securities
Page 23
conduct of their businesses as described in the Prospectus,
except where the failure to obtain such licenses, permits or
governmental authorizations would not reasonably be expected
to have a Material Adverse Effect; to such counsel's Actual
Knowledge, all of the leases and subleases material to the
business of the Company, the Bank or the Subsidiaries under
which the Company, the Bank or the Subsidiaries hold
properties are in full force and effect;
(iv) the statements in the Prospectus under the captions
"Taxation" and "Business of First Bank - Legal Proceedings,"
insofar as they are, or refer to, statements of Illinois law
or legal conclusions (excluding financial or statistical data
or stock valuation information included therein, as to which
an opinion need not to be expressed), have been prepared or
reviewed by such counsel and are accurate in all material
respects;
(v) the execution and delivery of this Agreement and the
consummation of the Conversion by the Company and the Bank do
not, to such counsel's Actual Knowledge, constitute a breach
of or default (or an event which, will notice or lapse of time
or both, would constitute a default) under, give rise to any
right of termination, cancellation or acceleration contained
in, or result in the creation or imposition of any lien,
charge or other encumbrance upon any of the properties or
assets of the Company, the Bank or the Subsidiaries pursuant
to any of the terms, provisions or conditions of, any
agreement, contract, indenture, bond, lease, debenture, note,
instrument or obligation to which the Company, the Bank or the
Subsidiaries is a party (other than the required establishment
of the liquidation account pursuant to the Plan) which in any
such event would reasonably be expected to result in a
Material Adverse Effect;
(vi) to such counsel's Actual Knowledge, there has been no
violation of any provision of the Company's, the Bank's or the
Subsidiaries' charter, certificate of incorporation, articles
of incorporation or bylaws or breach or default (or the
occurrence of any event which, with notice or lapse of time or
both, would constitute a default) by the Company, the Bank or
the Subsidiaries under any agreement, contract, indenture,
lease, bond, debenture, note instrument or obligation to which
the Company, the Bank or the Subsidiaries is a party or by
which any of them or any of their respective assets or
properties may be bound, or violation of any license, of their
respective assets or properties may be bound, or violation of
any license, permit, law, administrative regulation or order,
court order, injunction or decree which violation, breach or
default would reasonably be expected to have a Material
Adverse Effect.
Trident Securities
Page 24
In rendering such opinions, such counsel may rely as to
certain matters of fact on certificates of executive officers and
directors of the Company, the Bank and the Subsidiaries and
certificates of public officials delivered pursuant hereto. Such
counsel may assume that any agreement is the valid and binding
obligation of any parties to such agreement other than the Company, the
Bank and the Subsidiaries. As used in such counsel's opinion, the
phrase "Actual Knowledge" shall mean the conscious awareness of facts
or other information by ___________________ who is the only lawyers
employed by such counsel who have had active involvement in
representing the Company, the Bank or the Subsidiaries, and except to
the extent stated in such opinion, such counsel will not be deemed to
have undertaken any independent investigation or inquiry to determine
the existence or absence of any facts. For purposes of such opinion, no
proceeding shall be deemed to be pending, no order or stop order shall
be deemed to be issued, and no action shall be deemed to be instituted
unless, in each case, a director or executive officer of the Company,
the Bank or the Subsidiaries, or its counsel, shall have received a
copy of such proceeding, order, stop order or action. Such opinion may
be limited to statutes, regulations and judicial interpretations and to
facts as they exist as of the date of such opinion. In rendering such
opinion, such counsel need assume no obligation to revise or supplement
it should such statutes, regulations and judicial interpretations be
changed thereafter by legislative or regulatory action, judicial
decision or otherwise.
(c) At the Closing Date, Trident shall receive the letter of Elias,
Matz, Xxxxxxx & Xxxxxxx L.L.P., special counsel for the Company and the
Bank, dated the Closing Date, addressed to Trident, in form and
substance reasonably satisfactory to counsel for Trident and to the
effect that: (i) nothing has come to such counsel's attention that
would lead it to believe that the Registration Statement, as amended or
supplemented (except as to information in respect of Trident contained
therein and except as to the financial statements, notes to financial
statements, financial tables and other financial and statistical data
and appraisal information contained therein, as to which such counsel
need express no view), at the time it became effective and at the time
any post-effective amendment thereto became effective, contained any
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements made
therein, in light of the circumstances under which they were made, not
misleading, or that the Prospectus, as amended or supplemented (except
as to information in respect of Trident contained therein and except as
to financial statements, notes to financial statements, financial
tables and other financial and statistical data and appraisal
information contained therein as to which such counsel need express no
view), as of its date, at the time the Prospectus was filed with the
Commission under Rule 424(b) of the Securities Act regulations and at
the Closing Date, contained any untrue statement of a material fact or
omitted to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading (in issuing such letter, such counsel may indicate that it
has not confirmed the accuracy or completeness of or otherwise verified
the factual information contained in the Registration
Trident Securities
Page 25
Statement or the Prospectus and that it does not assume any
responsibility for the accuracy or completeness thereof.)
(d) Counsel for Trident shall have been furnished such documents as
they reasonably may require for the purpose of enabling them to review
or pass upon the matters required by Trident, and for the purpose of
evidencing the accuracy, completeness or satisfaction of any of the
representations, warranties or conditions herein contained, including
but not limited to, resolutions of the Board of Directors of the
Company and the Bank regarding the authorization of this Agreement and
the transactions contemplated hereby.
(e) Prior to and at the Closing Date, in the reasonable opinion of
Trident, (i) there shall have been no material adverse change in the
financial condition, results of operations, business or prospects of
the Company, the Bank and the Subsidiaries, taken as a whole, since the
latest date as of which such condition is set forth in the Prospectus,
except as referred to or contemplated therein; (ii) there shall have
been no transaction entered into by the Company, the Bank or the
Subsidiaries after the latest date as of which the financial condition
of the Company or the Bank is set forth in the Prospectus other than
transactions referred to or contemplated therein, transactions in the
ordinary course of business, and transactions which are not material to
the Company, the Bank and the Subsidiaries, taken as a whole; (iii)
none of the Company, the Bank nor the Subsidiaries shall have received
from the Office, FDIC, Board or Commission any directive (oral or
written) to make any change in the method of conducting their
respective businesses which is material to the business of the Company,
the Bank and the Subsidiaries, taken as a whole, with which they have
not complied; (iv) no action, suit or proceeding, at law or in equity
or before or by any federal or state commission, board or other
administrative agency, shall be pending or threatened against the
Company, the Bank or the Subsidiaries or affecting any of their
respective assets, wherein an unfavorable decision, ruling or finding
could have a Material Adverse Effect; and (v) the Shares shall have
been qualified or registered for offering and sale by the Company under
the securities or blue sky laws of such jurisdictions as Trident and
the Company shall have agreed upon.
(f) On the Closing Date, Trident shall receive a certificate of the
principal executive officer and the principal financial officer of each
of the Company and the Bank, dated the Closing Date, to the effect
that: (i) they have examined the Prospectus, and the Prospectus does
not contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading
with respect to the Company, the Bank or the Subsidiaries; (ii) since
the date the Prospectus became authorized for final use, no event has
occurred which should have been set forth in an amendment or supplement
to the Prospectus which has not been so set forth, including
specifically, but without limitation, any material adverse change in
the business, financial condition, or results of operations of the
Company, the
Trident Securities
Page 26
Bank or the Subsidiaries, and the conditions set forth in clauses (i)
through (v) inclusive of subsection (d) of this Section 7 have been
satisfied; (iii) to the best knowledge of such officers, no order or
direction has been issued by the Commission or the Office or FDIC or
Board to suspend the Offerings or the effectiveness of the Prospectus,
and no action for such purposes has been instituted or threatened by
the Commission or the Office or FDIC or Board; (iv) to the best
knowledge of such officers, no person has sought to obtain review of
the final action of the Commissioner or FDIC approving the Plan, and
(v) all of the representations and warranties contained in Section 2 of
this Agreement are true and correct, with the same force and effect as
though expressly made on the Closing Date.
(g) At the Closing Date, Trident shall receive, among other documents,
(i) copies of the letters from the Commissioner and FDIC authorizing
the use of the Prospectus and the Proxy Statement, (ii) a copy of the
order of the Commission declaring the Registration Statement effective;
(iii) a copy of the certificate from the Commissioner evidencing the
corporate existence of Bank; (iv) copies of the certificate from the
FDIC evidencing the insured status of the Bank, (v) a copy of the
letter from the appropriate state authority evidencing the
incorporation (and, if generally available from such authority, good
standing) of the Company and the Subsidiaries (vi) a copy of the
charter, certificate of incorporation or articles of incorporation of
the Company and the Subsidiaries, each certified by the appropriate
state governmental authority; (vii) if available, a copy of the letter
from the Office approving the Bank's Stock Charter; and (viii) a copy
of Board approval of the Company's acquisition of the Bank.
(h) As soon as available after the Closing Date, Trident shall receive
a certified copy of the Bank's Stock Certificate of Incorporation as
executed by the appropriate governmental authority.
(i) Concurrently with the execution of this Agreement, Trident
acknowledges receipt of a letter from Olive LLP, independent certified
public accountants, addressed to Trident and the Company, in substance
and form reasonably satisfactory to counsel for Trident, with respect
to the financial statements of the Bank and certain financial
information contained in the Prospectus.
(j) At the Closing Date, Trident shall receive a letter from Olive LLP,
independent certified public accountants, dated the Closing Date and
addressed to Trident and the Company, in form and substance reasonably
satisfactory to counsel for Trident, confirming the statements made by
such accountants in the letter delivered by them pursuant to the
preceding subsection and dated as of a specified date not more than
five (5) days prior to the Closing Date.
All such opinions, certificates, letters and documents shall be in
compliance with the
Trident Securities
Page 27
provisions hereof only if they are, in the reasonable opinion of Trident and its
counsel, satisfactory to Trident and its counsel. Any certificates signed by an
officer or director of the Company or the Bank prepared for Trident's reliance
and delivered to Trident or to counsel for Trident shall be deemed a
representation and warranty by the Company and the Bank to Trident as to the
statements made therein. If any condition to Trident's obligations hereunder to
be fulfilled prior to or at the Closing Date is not so fulfilled, Trident may
terminate this Agreement or, if Trident so elects, may waive in writing any such
conditions which have not been fulfilled, or may extend the time of their
fulfillment. If Trident terminates this Agreement as aforesaid, the Company and
the Bank shall reimburse Trident for its expenses as provided in Section 3
hereof.
8. INDEMNIFICATION.
(a) The Company and the Bank jointly and severally agree to indemnify
and hold harmless Trident, its officers, directors and employees and
each person, if any, who controls Trident within the meaning of Section
15 of the Securities Act or Section 20(a) of the Exchange Act, against
any and all loss, liability, claim, damage and expense whatsoever and
shall further promptly reimburse such persons for any legal or other
expenses reasonably incurred by each or any of them in investigating,
preparing to defend or defending against any action, proceeding or
claim (whether commenced or threatened) arising out of or based upon
(A) any untrue or alleged untrue statement of a material fact or the
omission or alleged omission of a material fact required to be stated
or necessary to make the statements, in light of the circumstances
under which they were made, not misleading contained in (i) the
Registration Statement or the Prospectus or (ii) any application
(including the Conversion Application and Notice) or other document or
communication (in this Section 8 collectively called "Application")
prepared or executed by or on behalf of the Company or the Bank or
based upon written information furnished by or on behalf of the Company
or the Bank, filed in any jurisdiction to register or qualify the
Shares under the securities laws thereof or filed with the Office, FDIC
or Commission with respect to the offering of the Shares, unless such
statement or omission was made in reliance upon and in conformity with
information furnished in writing to the Company or the Bank with
respect to Trident by or on behalf of Trident expressly for use in the
Registration Statement or Prospectus or any amendment or supplement
thereto or in any Application, as the case may be, (B) any written or
unwritten statement made to a purchaser of the Shares by any director,
officer or employee of the Company or the Bank, or (C) the inaccuracy
of any representation or warranty set forth in Section 2(a) above or
the breach of any covenant or agreement of the Company or the Bank set
forth herein or (D) the participation by Trident in the Conversion and
the Offering, provided, however, that this indemnification agreement
will not apply to any loss, liability, claim, damage or expense found
in a final judgment by a court of competent jurisdiction to have
resulted from the bad faith, willful misconduct or gross negligence of
any other party who may otherwise be entitled to indemnification
pursuant to this Section (8)(a); and, provided further, however, that
this indemnification will not apply to any suit action or
Trident Securities
Page 28
proceeding instituted by the Company or the Bank against Trident, its
officers, directors and each person who controls Trident within the
meaning of Section 15 of the act or Section 20(a) of the Exchange Act
to enforce the terms of this Agreement.
(b) The Company shall indemnify and hold Trident harmless for any
liability whatsoever arising out of (i) any instructions given to
Trident as set forth in Section 5(o) above or (ii) any records of
account holders, depositors, borrowers, and other members of the Bank
delivered to Trident by the Bank or its agents for use during the
Conversion provided, however that this indemnification shall not apply
to any loss, liability, claim, damage or expense found in a final
judgement of a court of competent jurisdiction to have resulted
primarily from the bad faith, willful misconduct or gross negligence of
Trident.
(c) Trident agrees to indemnify and hold harmless the Company and the
Bank, their officers, directors and employees and each person, if any,
who controls the Company and the Bank within the meaning of Section 15
of the Securities Act or Section 20(a) of the Exchange Act, to the same
extent as the foregoing indemnity from the Company and the Bank to
Trident, but only with respect to (A) statements or omissions, if any,
made in the Prospectus or any amendment or supplement thereof, in any
Application or to a purchaser of the Shares in reliance upon, and in
conformity with, information furnished in writing to the Company or the
Bank with respect to Trident by or on behalf of Trident expressly for
use in the Prospectus or any amendment or supplement thereof or in any
Application or (B) the inaccuracy of any representation or warranty set
forth in Section 2(b) above or the breach of any covenant or agreement
of Trident set forth herein.
(d) Promptly after receipt by an indemnified party under this Section 8
of notice of any action, proceeding or claim (whether commenced or
threatened) such indemnified party will, if a claim in respect thereof
is to be made against the indemnifying party under this Section 8,
notify the indemnifying party of such action, proceeding or claim; but
the omission so to notify the indemnifying party will not relieve it
from any liability which it may have to any indemnified party otherwise
than under this Section 8. In case any such action is brought against
any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified
party, and after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under
this Section 8 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof other
than the reasonable cost of investigation except as otherwise provided
herein. In the event the indemnifying party elects to assume the
defense of any such action and retain counsel reasonably acceptable to
the indemnified party, the indemnified party may retain additional
counsel, but shall bear the fees and
Trident Securities
Page 29
expenses of such counsel unless (i) the indemnifying party shall have
specifically authorized the indemnified party to retain such counsel or
(ii) the parties to such suit include such indemnifying party and the
indemnified party, and such indemnified party shall have been advised
by counsel that there are substantive or procedural issues which raise
conflicts of interest between the indemnified party and indemnifying
party, in which case the indemnifying party shall not be entitled to
assume the defense of such suit notwithstanding the indemnifying
party's obligation to bear the fees and expenses of such counsel. An
indemnifying party against whom indemnity may be sought shall not be
liable to indemnify an indemnified party under this Section 8 if any
settlement of any such action is effected without such indemnifying
party's consent.
9. CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 8 above is for any reason held to be unavailable to Trident, the Company
and/or the Bank other than in accordance with its terms, the Company and the
Bank or Trident shall contribute to the aggregate losses, liabilities, claims,
damages, and expenses of the nature contemplated by said indemnity agreement
incurred by the Company and the Bank or Trident (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Bank on the one hand and Trident on the other from the offering of the Shares or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above, but also the relative fault
of the Company or the Bank on the one hand and Trident on the other hand in
connection with the statements, acts or omissions which resulted in such losses,
claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Bank on the one hand and Trident on the other shall be deemed to be in the same
proportion as the total net proceeds from the Conversion received by the Company
and the Bank bear to the total fees received by Trident under this Agreement.
The relative fault of the Company or the Bank on the one hand and Trident on the
other shall be determined by reference to, among other things, whether any
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or the Bank or by Trident and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Bank and Trident agree that it would not be just
and equitable if contribution pursuant to this Section 9 were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by the indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 9, Trident shall not be required
to contribute any amount in excess of the amount by which fees owed Trident
pursuant to
Trident Securities
Page 30
this Agreement exceed the amount of any damages which Trident has otherwise been
required to pay by reason of such untrue or alleged untrue statement, act,
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who is not guilty of such fraudulent
misrepresentation.
10. SURVIVAL OF AGREEMENTS, REPRESENTATIONS AND INDEMNITIES. The
respective indemnities of the Company and the Bank and Trident and the
representations and warranties of the Company and the Bank and of Trident set
forth in or made pursuant to this Agreement shall remain in full force and
effect, regardless of any termination or cancellation of this Agreement or any
investigation made by or on behalf of Trident or the Company or the Bank or any
controlling person or indemnified party referred to in Section 8 hereof, and
shall survive any termination or consummation of this Agreement and/or the
issuance of the Shares, and any legal representative of Trident, the Company,
the Bank and any such controlling persons shall be entitled to the benefit of
the respective agreements, indemnities, warranties and representations.
11. TERMINATION. The parties may terminate this Agreement by giving the
notice indicated below in this Section at any time after this Agreement becomes
effective as follows:
(a) Trident may terminate this Agreement if any domestic or
international event or act or occurrence has materially disrupted the
United States securities markets such as to make it, in Trident's
reasonable opinion, impracticable to proceed with the offering of the
Shares; or if trading on the New York Stock Exchange shall have
suspended; or if the United States shall have become involved in a war
or major hostilities; or if a general banking moratorium has been
declared by a state or federal authority which has material effect on
the Bank or the Conversion; or if a moratorium in foreign exchange
trading by major international banks or persons has been declared; or
if there shall have been a material change in the capitalization,
financial condition or business of the Company, the Bank and the
Subsidiaries, taken as a whole, or if the Company, the Bank and the
Subsidiaries, taken as a whole, shall have sustained a material or
substantial loss by fire, flood, accident, hurricane, earthquake,
theft, sabotage or other calamity or malicious act, whether or not said
loss shall have been insured.
(b) Trident may terminate this Agreement in the event of a material
breach of this Agreement by the Company or the Bank at any time after
this Agreement becomes effective if such breach is not cured within
five (5) days after Trident delivers written notice thereof to the
Company and the Bank, and the Company and the Bank may terminate this
Agreement in the event of a material breach of this Agreement by
Trident at any time after this Agreement becomes effective if such
breach is not cured within five (5) days after the Company or the Bank
delivers written notice thereof to Trident.
(c) The Bank may terminate the Conversion in accordance with the terms
of the Plan.
Trident Securities
Page 31
Such termination shall be without liability to any party, except that
the Company and the Bank shall be required to fulfill their obligations
pursuant to Sections 3, 6, 8, and 9 of this Agreement.
(d) The Company and the Bank and Trident may terminate this Agreement
by mutual written agreement.
(e) If this Agreement is terminated by Trident for any of the reasons
set forth in subsections (a) or (b) above, and to fulfill their
obligations, if any, pursuant to Sections 3, 6, 8 and 9 of this
Agreement and upon demand, the Company and the Bank shall pay Trident
the full amount so owing thereunder.
(f) If this Agreement is terminated as provided in this Section 11, the
party terminating this Agreement shall notify any non-terminating party
promptly by telephone or telegram, confirmed by letter.
12. NOTICES. All communications hereunder, except as herein otherwise
specifically provided, shall be in writing and shall be mailed, delivered or
telegraphed and confirmed to Trident shall be mailed, delivered or telegraphed
and confirmed to Trident Securities, a Division of McDonald Investments Inc.,
0000 Xxx Xxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xx.
Xxxxxxx X. Xxxxx (with a copy to Xxxxxxx Xxxxxx & Xxxxxxxx, LLP, 0000 Xxxxxxxxx
Xxxxxx, XX, Xxxxxxxxxx, XX 00000, Attention Xxxx X. Xxxxxxxxx, Esquire) and if
sent to the Company or the Bank, shall be mailed, delivered or telegraphed to
First Bank & Trust, Savings Bank 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx, Xxxxxxxx
00000, Attention: Xxxxx X. Xxxxxx (with a copy to Elias, Matz, Xxxxxxx and
Xxxxxxx L.L.P., 000 00xx Xxxxxx, XX Xxxxxxxxxx, XX 00000, Attention: Xx. Xxxxx
Xxxxxxxx, Esquire).
13. PARTIES. The Company and the Bank shall be entitled to act and rely
on any request, notice, consent, waiver or agreement purportedly given on behalf
of Trident when the same shall have been given by the undersigned or any other
officer of Trident. Trident shall be entitled to act and rely on any request,
notice, consent, waiver or agreement purportedly given on behalf of the Company
or the Bank, when the same shall have been given by the undersigned or any other
officer of the Company or the Bank. This Agreement shall inure solely to the
benefit of, and shall be binding upon, Trident, the Company, the Bank and the
controlling and other persons referred to in Section 8 hereof, and their
respective successors, legal representatives and assigns, and no other person
shall have or be construed to have any legal or equitable right, remedy or claim
under or in respect of or by virtue of this Agreement or any provision herein
contained.
14. CONSTRUCTION. Unless preempted by federal law, this Agreement shall
be governed by and construed in accordance with the substantive laws of North
Carolina.
Trident Securities
Page 32
15. COUNTERPARTS. This Agreement may be executed in separate
counterparts, each of which when so executed and delivered shall be an original,
but all of which together shall constitute but one and the same instrument.
16. AMENDMENT. This Agreement may be amended at any time only by a
writing signed by all parties hereto.
Trident Securities
Page 33
Please acknowledge your agreement to the foregoing by signing below and
returning to the Company one copy of this letter.
FIRST BANCTRUST CORPORATION
By:
-----------------------------------
Xxxxx X. Xxxxxx
President
FIRST BANK & TRUST, SAVINGS BANK
By:
-----------------------------------
Xxxxx X. Xxxxxx
President
Agreed to and accepted as of
the date first written above:
TRIDENT SECURITIES, a Division of McDonald Investments Inc.
By:
---------------------------------
Xxxxxxx X. Xxxxxx
