INNES STREET FINANCIAL CORPORATION
COMMON STOCK
1,445,000 TO 2,248,250 SHARES
$10.00 PER SHARE
SALES AGENCY AGREEMENT
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Trident Securities, Inc.
0000 Xxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Dear Sirs:
Innes Street Financial Corporation, a North Carolina-chartered corporation
(the "Company"), and Citizens Bank, FSB, a federally chartered and insured
mutual savings association (the "Bank"), hereby confirm, as of _____________,
their respective agreements with Trident Securities, 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. Introductory. The Bank intends to convert from a federally chartered
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mutual savings association to a federally chartered stock savings association 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, the "Conversion") pursuant to a plan of
conversion adopted on September 10, 1998, (as amended, if amended, the "Plan").
In accordance with the Plan, the Company is offering shares of its common stock
(the "Shares" and the "Common Stock"), pursuant to nontransferable subscription
rights in a subscription offering (the "Subscription Offering") to certain
depositors and borrowers of the Bank and to the Bank's tax-qualified employee
benefit plans (i.e., the Bank's Employee Stock Ownership Plan (the "ESOP")).
Shares of the Common Stock not sold in the Subscription Offering may be offered
to the general public in a community offering, with preference given to natural
persons residing in Rowan and Iredell Counties, North Carolina, (the "Community
Offering"), subject to the right of the Company and the Bank, in their absolute
discretion, to reject orders in the Community Offering in whole or in part.
Shares not sold in the Subscription Offering or otherwise in the Community
Offering may be offered to certain members of the general public as part of the
Community Offering by a group of broker-dealers (the "Syndicated Community
Offering") (the Subscription Offering and, if any, the Community and Syndicated
Community Offerings are sometimes referred to collectively as the "Offerings").
In the Offerings, the Company is offering between 1,445,000 and 1,955,000
Shares, with the possibility
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Innes Street Financial Corporation
Sales Agency Agreement
Page 2
of offering up to 2,248,250 Shares without a resolicitation of subscribers, as
contemplated by Part 563b of Title 12 of the Code of Federal Regulations. With
the exception of the ESOP, no person (or persons through a single account) may
purchase in the Offerings more than 20,000 Shares; no person, together with
associates of and persons acting in concert with such person, may purchase in
the Offerings more than 20,000 Shares.
The Company and the Bank have been advised by Trident that it will utilize
its best efforts in assisting the Company and the Bank with the sale of the
Shares in the Offerings, including any Syndicated Community Offering. Prior to
the execution of this 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 and the Shares.
2. Representations and Warranties.
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(a) The Company and the Bank jointly and severally represent and
warrant to Trident that:
(i) The Company has filed with the Commission a registration
statement, including exhibits and an amendment or amendments thereto,
on Form S-1 (No. 333-63363), including a prospectus relating to the
Offerings, for the registration of the Shares under the Securities Act
of 1933, as amended (the "Act"); and such registration statement has
become effective under the Act and no stop order has been issued with
respect thereto and no proceedings therefor have been initiated or, to
the Company's best knowledge, 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, as amended and supplemented, 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 the prospectus filed by the Company with the Commission
pursuant to Rule 424(b) of the general rules and regulations of the
Commission under the Act (together with the enforceable published
policies and actions of the Commission thereunder, the "SEC
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
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Sales Agency Agreement
Page 3
amendments or supplements thereto from and after their dates of
effectiveness or use, respectively. If any Shares remain unsubscribed
following completion of the Subscription Offering and, if any, the
Community Offering, the Company (i) will promptly file with the
Commission a post-effective amendment to such Registration Statement
relating to the results of the Subscription Offering and, if any, the
Community Offering, 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 file with,
or mail for filing to, the Commission a prospectus or prospectus
supplement containing information relating to the results of the
Subscription Offering and, if any, the Community Offering and pricing
information pursuant to Rule 424(c) of the Regulations, in either case
in a form reasonably acceptable to the Company and Trident.
(ii) The Bank has filed an Application for Approval of
Conversion on Form AC, including exhibits (as amended or supplemented,
the "Form AC" and together with the Form H-(e)1-S referred to below,
the "Conversion Application") with the Office of Thrift Supervision
(the "Office") under the Home Owners' Loan Act, as amended (the
"HOLA") and the enforceable rules and regulations, including published
policies and actions, of the Office thereunder (the "OTS
Regulations"), which has been approved by the Office; and the
Prospectus and the proxy statement for the solicitation of proxies
from members for the special meeting to approve the Plan (the "Proxy
Statement") included as part of the Form AC have been approved for use
by the Office. No order has been issued by the Office preventing or
suspending the use of the Prospectus or the Proxy Statement; and no
action by or before the Office revoking such approvals is pending or,
to the Bank's best knowledge, threatened. The Company has filed with
the Office the Company's application on Form H-(e)1-S promulgated
under the savings and loan holding company provisions of the HOLA and
the OTS Regulations and has received approval of its acquisition of
the Bank from the Office.
(iii) At the date of the Prospectus and at all times subsequent
thereto through and including the Closing Date (i) the Registration
Statement and the Prospectus (as amended or supplemented, if amended
or supplemented) complied with the Act and the Regulations, (ii) the
Registration Statement (as amended or supplemented, if amended or
supplemented) 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 not misleading, and (iii) the
Prospectus (as amended or supplemented, if amended or supplemented)
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
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Sales Agency Agreement
Page 4
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 furnished to the Company or the Bank relating to
Trident by or on behalf of Trident expressly for use in the
Registration Statement or Prospectus.
(iv) The Company has been duly organized as a North Carolina
corporation, and the Bank has been duly organized as a mutual savings
association under the laws of the United States, and each of them is
validly existing and in good standing under the laws of the
jurisdiction of its 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 Atlanta; and the deposit accounts of the
Bank are insured by the Savings Association Insurance Fund ("SAIF")
administered by the Federal Deposit Insurance Corporation ("FDIC") up
to the applicable legal limits. Each of the Company and the Bank is
not required to be qualified to do business as a foreign corporation
in any jurisdiction where non-qualification would have a material
adverse effect on the Company and the Bank, taken as a whole. The Bank
does not own equity securities of or an equity interest in any
business enterprise except as described in the Prospectus. Upon
amendment of the Bank's charter and bylaws as provided in the rules
and regulations of the Office 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 a federally chartered
capital stock savings association 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.
(v) The Bank has good, marketable and insurable title to all
assets material to its business and to those assets described in the
Prospectus as owned by it, free and clear of all material liens,
charges, encumbrances or restrictions, except for liens for taxes not
yet due, except as described in the Prospectus and except as could not
in the aggregate have a material adverse effect upon the operations or
financial condition of the Bank; and all of the leases and subleases
material to the operations or financial condition of the Bank, under
which it holds properties, including those described in the
Prospectus, are in full force and effect as described therein.
(vi) The execution and delivery of this Agreement and the
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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 the Bank, and this Agreement is a valid and binding
obligation with valid execution and delivery of each of the Company
and the Bank, 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 savings and loan holding companies the accounts of whose
subsidiaries are insured by the FDIC or by general equity principles,
regardless of whether such enforceability is considered in a
proceeding in equity or at law, and except to the extent that the
provisions of Sections 8 and 9 hereof may be unenforceable as against
public policy or pursuant to Sections 23A and 23B of the Federal
Reserve Act, 12 U.S.C. Sections 371c and 371c-1 (collectively,
"Section 23A")).
(vii) There is no litigation or governmental proceeding pending
or, to the best knowledge of the Company or the Bank, threatened
against or involving the Company, the Bank or any of their respective
assets which individually or in the aggregate would reasonably be
expected to have a material adverse effect on the condition (financial
or otherwise), results of operations and business, including the
assets and properties, of the Company and the Bank, taken as a whole.
(viii) The Company and the Bank have received the opinions of
__________________ with respect to federal tax consequences of the
Conversion, and of __________________, with respect to North Carolina
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, and will not be a taxable transaction for
the Bank or the Company under the laws of North Carolina, and the
facts relied upon in such opinions are accurate and complete.
(ix) Each of the Company and the Bank has all such corporate
power, authority, authorizations, approvals and orders as may be
required to enter into this Agreement and to carry out the provisions
and conditions hereof, subject to the limitations set forth herein and
subject to the satisfaction of certain conditions imposed by the
Office in connection with its approvals of the Form AC and the
Application H-(e)1-S, and, except as may be required under the
securities laws of various jurisdictions, and, in the case of the
Company, as of the Closing Date, will have such approvals and orders
to issue and sell the Shares to be sold by the Company as provided
herein, and, in the case of the Bank, as of the Closing Date, will
have such approvals and orders to issue and sell the Shares of its
Common
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Sales Agency Agreement
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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 federally
chartered stock savings associations (the "Stock Charter"), the form
of which Stock Charter has been approved by the Office.
(x) Neither the Company nor the Bank is in violation of any
rule or regulation of the Office or the FDIC that could reasonably be
expected to result in any enforcement action against the Company, the
Bank or their officers or directors that might have a material adverse
effect on the condition (financial or otherwise), operations,
businesses, assets or properties of the Company and the Bank, taken as
a whole.
(xi) The financial statements and any related notes or
schedules which are included in the Registration Statement and the
Prospectus fairly present the financial condition, income, retained
earnings and cash flows of the Bank at the respective dates thereof
and for the respective periods covered thereby and comply as to form
with the applicable accounting requirements of the SEC and OTS
Regulations. Such financial statements have been prepared in
accordance with generally accepted accounting principles 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 the Bank with supervisory and regulatory
authorities except as such generally accepted accounting principles
may otherwise require. The tables in the Prospectus accurately present
the information purported to be shown thereby at the respective dates
thereof and for the respective periods therein.
(xii) There has been no material change in the condition
(financial or otherwise), results of operations or business, including
assets and properties, of the Company and the Bank, 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 and the Bank
conform to the descriptions thereof contained in the Prospectus. None
of the Company or the Bank has any material liabilities of any kind,
contingent or otherwise, except as set forth in the Prospectus.
(xiii) 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 or the Bank pursuant to any of the terms, provisions or
conditions of, any agreement, contract, indenture, bond, debenture,
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Innes Street Financial Corporation
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note, instrument or obligation to which the Company or the Bank is a
party or by which any of them or any of their respective assets or
properties may be bound or is subject, or 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, encumbrance or violation would have a
material adverse effect on the condition (financial or otherwise),
operations, business, assets or properties of the Company and the
Bank, taken as a whole; all agreements which are material to the
condition (financial or otherwise), results of operations or business
of the Company and the Bank, 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 the Bank, threatened any action or
proceeding wherein the Company or the Bank would be alleged to be in
default thereunder.
(xiv) None of the Company or the Bank is in violation of its
respective charter or bylaws. The execution and delivery hereof and
the consummation of the transactions contemplated hereby by the
Company and the Bank do not conflict with or result in a breach of the
charter or bylaws of the Company or the Bank (in either mutual or
stock form) or constitute a material breach of 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 or the Bank pursuant to any of the terms,
provisions or conditions of, any material agreement, contract,
indenture, bond, debenture, note, instrument or obligation to which
the Company or the Bank is a party or violate any governmental license
or permit or any enforceable published 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 its approval of the Conversion Application), which breach,
default, encumbrance or violation would have a material adverse effect
on the condition (financial or otherwise), operations or business of
the Company and the Bank, taken as a whole.
(xv) Subsequent to the respective dates as of which information
is given in the Registration Statement and Prospectus and prior to the
Closing Date (as hereinafter defined), except as otherwise may be
indicated or contemplated therein, none of the Company or the Bank has
issued any securities which will remain issued at the Closing Date or
incurred any liability or obligation, direct or contingent, or
borrowed money, except borrowings in the ordinary course of business,
or entered into any other transaction not in the ordinary course of
business and consistent with prior practices, which is material in
light of the
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business of the Company and the Bank, taken as a whole.
(xvi) 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; 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, when
issued in accordance with the terms of the Plan and paid for, shall be
validly issued, fully paid and nonassessable and shall conform 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 certificates representing the Shares will
conform in all material respects with the requirements of applicable
laws and regulations. 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 appropriate regulatory
authorities (subject to the satisfaction of various conditions imposed
by the Office in connection with its approval of the Conversion
Application), and such capital stock, when issued in accordance with
the terms of the Plan, will be fully paid and nonassessable and will
conform in all material respects to the description thereof contained
in the Prospectus.
(xvii) 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 for
the declaration of effectiveness of any required post-effective
amendment by the Commission and approval thereof by the Office and
approval of the Company's application on Form H-(e)1-S by the Office,
the issuance of the Stock Charter by the Office and as may be required
under the securities laws of various jurisdictions.
(xviii) All contracts and other documents required to be filed as
exhibits to the Registration Statement or the Conversion Application
have been filed with the Commission and/or the Office, as the case may
be.
(xix) Ernst & Young LLP, which audited the financial statements
of the Bank at September 30, 1997 and 1996 and for each of the three
years in the period ended September 30, 1997 included in the
Prospectus, is an independent public accountant within the meaning of
the Code of Professional Ethics of the American
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Institute of Certified Public Accountants and Title 12 of the Code of
Federal Regulations, Section 571.2(c)(3).
(xx) For the past five years, the Company and the Bank 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 and the Bank have
paid all taxes that have become due and, to the best of their
knowledge, have made adequate reserves for similar 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 on the condition of the Company and the Bank,
taken as a whole.
(xxi) All of the loans represented as assets of the Bank on the
most recent financial statements of the Bank included in the
Prospectus meet or are exempt from all requirements of federal, state
or local law pertaining to lending and interest, including without
limitation truth in lending (including the requirements of Regulation
Z and 12 C.F.R. Part 226 and Section 563.99), 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 on the
Company and the Bank, taken as a whole.
(xxii) The records of account holders, depositors, borrowers and
other members of the Bank delivered to Trident by the Bank or its
agent for use during the Conversion have been prepared or reviewed by
the Bank and, to the best knowledge of the Company and the Bank, are
reliable and accurate.
(xxiii) None of the Company, the Bank or, to the best knowledge
of the Company and the Bank, the employees of the Company or the Bank,
has made any payment of funds of the Company or the Bank prohibited by
law, and no funds of the Company or the Bank have been set aside to be
used for any payment prohibited by law.
(xxiv) To the best knowledge of the Company and the Bank, the
Company and the Bank are in compliance with all laws, rules and
regulations relating to the discharge, storage, handling and disposal
of hazardous or toxic substances, pollutants or contaminants and
neither the Company nor the Bank believes that the Company or the Bank
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,
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would not have a material adverse effect on the Company and the Bank,
taken as a whole. 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 or the Bank
relating to the discharge, storage, handling and disposal of hazardous
or toxic substances, pollutants or contaminants. To the best knowledge
of the Company and the Bank, no disposal, release or discharge of
hazardous or toxic substances, pollutants or contaminants, including
petroleum and gas products, as any of such terms may be defined under
federal, state or local law, has been caused by the Company or the
Bank or, to the best knowledge of the Company or the Bank, has
occurred on, in or at any of the facilities or properties of the
Company or the Bank, except such disposal, release or discharge which
would not have a material adverse effect on the Company and the Bank,
taken as a whole.
(xxv) At the Closing Date, the Company and the Bank will have
completed the conditions precedent to, and shall have conducted the
Conversion in all material respects in accordance with, the Plan, the
HOLA, the OTS 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
Commission, and is in good standing with the Commission and 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 accounts of whose may be
protected by the Securities Investor Protection Corporation or by
general equity principles, regardless of
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whether such enforceability is considered 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 pursuant to
Section 23A).
(iv) Each of Trident and, to Trident's 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 listed in Exhibit A hereto and will remain
registered in such jurisdictions in which the Company is relying on
such registration for the sale of the Shares, 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 corporate charter or bylaws of Trident or violate, conflict
with or constitute a breach of, or default (or an event which, with
notice or lapse of time, or both, would constitute a default) under,
any material agreement, indenture or other instrument 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.
(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 (the "Exchange Act").
(vii) There is not now pending or, to Trident's knowledge,
threatened against Trident any action or proceeding before the
Commission, the NASD, any state securities commission or any state or
federal court concerning Trident's activities as a broker-dealer.
3. Employment of Trident; Sale and Delivery of the Shares. On the basis
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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 in assisting the Company with the
Company's sale of the Shares in the Subscription Offering and, if any, the
Community Offering. The employment of Trident hereunder shall terminate (a)
forty-five (45) days after the Offerings close, unless the Company and the Bank,
with the approval of the Office, are permitted to extend such period of time, or
(b) upon consummation of the Conversion, whichever date shall first occur.
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In the event the Company is unable to sell a minimum of 1,445,000 Shares
(or such lesser amount as the Office may permit) within the period herein
provided, this 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 it 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 6, 8(a)
and 9 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 were made prior to the commencement of
the Offerings, 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 thereof for such Shares on the Closing Date against
payment to the Company by any means authorized pursuant to the Prospectus, at
the principal office of the Company at 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000, or at such other place as shall be agreed upon between the
parties hereto. The date upon which Trident is paid the compensation due
hereunder is herein called the "Closing Date."
Trident agrees either (a) upon receipt of an executed order form of a
subscriber to forward the offering price of the Common Stock ordered on or
before twelve noon on the next business day following receipt or execution of an
order form by Trident to the Bank for deposit in a segregated account 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 acknowledgements 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.
In addition to the expenses specified in Section 6 hereof, Trident shall
receive the following compensation for its services hereunder:
(a)(i) a commission equal to 2.0% of the aggregate dollar amount of
Common Stock sold in the Subscription Offering and any Community Offering,
except no
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commissions shall be payable on shares purchased by directors, executive
officers or their associates or employee benefit plans and (ii) a
commission to be agreed upon by Trident and the Company for Shares sold by
other member firms of the NASD through a selected dealers arrangement in
any Syndicated Community Offering. All commissions shall be based on the
amount of Common Stock sold. All such commissions are to be payable in
same-day funds to Trident on the Closing Date.
(b) Trident shall be reimbursed for allocable expenses, including but
not limited to travel, communications and postage and legal fees and
expenses, whether or not the Offerings are successfully completed;
provided, however, that neither the Company nor the Bank shall pay or
reimburse Trident for any of the foregoing expenses accrued after Trident
shall have notified the Company or the Bank of its election to terminate
this Agreement pursuant to Section 11 hereof or after such time as the
Company or the Bank shall have given notice in accordance with Section 12
hereof that Trident is in breach of this Agreement. Trident's out-of-pocket
expenses will not exceed $10,000, and its legal fees will not exceed
$27,500, without the consent of the Company and the Bank. Full payment to
defray Trident's reimbursable expenses shall be made in same-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 for reimbursement of its expenses. Trident
acknowledges receipt of $10,000 advance payment from the Bank which shall
be credited against the total reimbursement due Trident hereunder.
(c) Notwithstanding the limitations on reimbursement of Trident for
allocable expenses provided in the immediately preceding paragraph (b), in
the event that a resolicitation or other event causes the Offerings to be
extended beyond their original expiration date, the Company and the Bank
shall reimburse Trident for its reasonable expenses incurred during such
extended period, even if the allowances for reimbursable expenses provided
for paragraph (b) above have been exhausted, provided that any
reimbursements in excess of the limitations in paragraph (b) would not be
expected to exceed an amount equal to the product obtained by dividing
$37,500 (the original reimbursable out-of-pocket expense limit),
respectively, by the total number of days of the unextended Subscription
Offering (calculated from the date of the Prospectus to the intended close
of the Subscription Offering as stated in the Prospectus) and multiplying
such product by the number of days of the extension (that number of days
from the date of the supplemental prospectus used in the extended offering
to the closing of the extension of the offering(s) described in such
supplemental prospectus).
The Company shall pay any stock issue and transfer taxes which may be
payable with respect to the sale of the Shares. The Company and the Bank shall
also pay all expenses of the
Trident Securities, Inc.
Innes Street Financial Corporation
Sales Agency Agreement
Page 14
Conversion incurred by them or on their prior approval including but not limited
to their attorneys' fees, NASD filing fees, and attorneys' fees relating to any
required state securities laws research and filings, telephone charges, air
freight, rental equipment, supplies, transfer agent charges, fees relating to
auditing and accounting and costs of printing all documents necessary in
connection with the Conversion.
4. Offering. Subject to the provisions of Section 7 hereof, Trident is
--------
assisting the Company on a best efforts basis in offering a minimum of 1,445,000
and a maximum of 1,955,000 Shares, with the possibility of offering up to
2,248,250 Shares (except as the Office may permit to be decreased or increased)
in the Offerings. 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) 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.
(b) The Company will notify Trident immediately upon discovery, 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, and (iv) of the receipt of any
comments from the staff of the Commission relating to the Registration
Statement. If the Commission enters a stop order relating to the
Registration Statement at any time, the Company will make every reasonable
effort to obtain the lifting of such order at the earliest possible moment.
(c) During the time when a prospectus is required to be delivered
under the Act, the Company will comply so far as it is able with all
requirements imposed upon it by the Act, as now in effect and hereafter
amended, and by the Regulations, as from time to time in force, so far as
necessary to permit the continuance of offers and sales of or dealings in
the Shares in accordance with the provisions hereof and the Prospectus. If
during the period when the Prospectus is required to be delivered in
connection with the offer and sale of the Shares any event relating to or
affecting the Company and the Bank, taken as a whole, shall occur as a
result of which it is necessary, in the opinion of counsel for Trident,
with the concurrence of counsel to the Company, to amend or supplement the
Trident Securities, Inc.
Innes Street Financial Corporation
Sales Agency Agreement
Page 15
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 forthwith shall prepare and furnish to Trident a
reasonable number of copies of an amendment or amendments or of a
supplement or supplements to the Prospectus (in form and substance
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
of which Trident has not first been 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.
(d) The Company and the Bank have taken or will take all reasonably
necessary action as may be required to qualify or register the Shares for
offer and sale by the Company under the securities laws of such
jurisdictions as Trident and either 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.
(e) Appropriate entries will be made in the financial records of the
Bank sufficient to establish a liquidation account for the benefit of
eligible account holders and supplemental eligible account holders in
accordance with the requirements of the Office.
(f) The Company will file a registration statement for the Common
Stock under Section 12(g) of the Exchange Act, prior to completion of the
stock offering pursuant to the Plan and shall request that such
registration statement be effective upon completion of the Conversion. The
Company shall maintain the effectiveness of such registration for a minimum
period of three years or for such shorter period as may be required by
applicable law.
(g) 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 regulations promulgated under the Act)
covering a twelve-month period beginning not later than the
Trident Securities, Inc.
Innes Street Financial Corporation
Sales Agency Agreement
Page 16
first day of the Company's fiscal quarter next following the effective date
(as defined in said Rule 158) of the Registration Statement.
(h) For a period of three (3) years from the date of this Agreement
(unless the Common Stock shall have been deregistered under the Exchange
Act), the Company will furnish to Trident, 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.
(i) The Company shall use the net proceeds from the sale of the Shares
consistently with the manner set forth in the Prospectus.
(j) The Company shall 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.
(k) The Company shall advise Trident, if necessary, as to the
allocation of deposits, in the case of eligible account holders, and votes,
in the case of other members, and of the Shares in the event of an
oversubscription and shall, after consultation with Trident, provide
Trident final instructions as to the allocation of the Shares ("Allocation
Instructions") in such event and such information shall be accurate and
reliable. Trident shall be entitled to rely on such instructions and shall
have no liability in respect of its reliance thereon, including without
limitation, no liability for or related to any denial or grant of a
subscription in whole or in part.
(l) The Company and the Bank will take such actions and furnish such
information as are reasonably requested by Trident in order for Trident to
ensure compliance with the NASD's "Interpretation Relating to Free-Riding
and Withholding."
6. Payment of Expenses. Whether or not the Conversion is consummated,
-------------------
the Company and the Bank shall pay or reimburse Trident for (a) all filing fees
paid or incurred by Trident in connection with all filings with the NASD with
respect to the Offerings and, (b) in addition, if the Company is unable to sell
a minimum of 595,000 Shares or such lesser amount as the Office may permit or
the Conversion is otherwise terminated, the Company and the Bank shall reimburse
Trident for allocable expenses incurred by Trident relating to the offering of
the Shares as provided in Section 3 hereof; provided, however, that neither the
Company nor the Bank shall pay or reimburse Trident for any of the foregoing
expenses accrued after Trident shall
Trident Securities, Inc.
Innes Street Financial Corporation
Sales Agency Agreement
Page 17
have notified the Company or the Bank of its election to terminate this
Agreement pursuant to Section 11 hereof or after such time as the Company or the
Bank shall have given notice in accordance with Section 12 hereof that Trident
is in breach of this Agreement.
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) At the Closing Date, Trident shall receive the favorable opinion
of Brooks, Pierce, XxXxxxxx, Xxxxxxxx & 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,
substantially as set forth in Exhibit B hereto.
(b) At the Closing Date, Trident shall receive the letter of Brooks,
Pierce, XxXxxxxx, Xxxxxxxx & 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, substantially
as set forth in Exhibit C hereto.
(c) 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.
(d) Prior to and at the Closing Date, in the reasonable opinion of
Trident, (i) there shall have been no material change in the condition,
financial or otherwise, business or results of operations of the Company
and the Bank, taken as a whole, since the latest date as of which such
condition is set forth in the Prospectus, except as referred to therein;
(ii) there shall have been no transaction entered into by the Company or
the Bank 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 and the
Bank, taken as a whole; (iii) none of the Company or the Bank shall have
received from the Office or Commission any direction (oral or written) to
make any change in the method of conducting their respective businesses
which is material to the business of the Company and the Bank, taken as a
whole, with which they have not
Trident Securities, Inc.
Innes Street Financial Corporation
Sales Agency Agreement
Page 18
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 or the Bank or
affecting any of their respective assets, wherein an unfavorable decision,
ruling or finding would have a material adverse effect on the business,
operations, financial condition or income of the Company and the Bank,
taken as a whole; and (v) the Shares shall have been qualified or
registered for offering and sale by the Company under the securities laws
of such jurisdictions as Trident and the Company shall have agreed upon.
(e) At the Closing Date, Trident shall receive a certificate of the
principal executive, financial and accounting officer(s) of each of the
Company and the Bank, dated the Closing Date, to the effect that: (i) they
have examined the Prospectus and, at the time the Prospectus became
authorized by the Company for use, the Prospectus did 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 or the
Bank; (ii) since the date the Prospectus became authorized by the Company
for use, no event has occurred which should have been set forth in an
amendment or supplement to the Prospectus which has not been so set forth,
including specifically, but without limitation, any material change in the
business, condition (financial or otherwise) or results of operations of
the Company or the Bank and, the conditions set forth in clauses (ii)
through (iv) inclusive of subsection (d) of this Section 7 have been
satisfied; (iii) to the best knowledge of such officers, no order has been
issued by the Commission or the Office 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; (iv) to the best
knowledge of such officers, no person has sought to obtain review of the
final actions of the Office and division 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.
(f) At the Closing Date, Trident shall receive, among other documents,
(i) copies of the letters from the Office 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) copies of
the letters from the Office evidencing the corporate existence of the Bank;
(iv) a copy of the letter from the appropriate North Carolina authority
evidencing the incorporation (and, if generally available from such
authority, good standing) of the Company; (v) a copy of the Company's
articles of incorporation certified by the appropriate North Carolina
governmental authority; and, (vi) if available, a copy of the letter from
the Office approving the Bank's Stock Charter.
Trident Securities, Inc.
Innes Street Financial Corporation
Sales Agency Agreement
Page 19
(g) As soon as available after the Closing Date, Trident shall receive
a copy of the Bank's Certified Stock Charter executed by the appropriate
federal governmental authority.
(h) Concurrently with the execution of this Agreement, Trident
acknowledges receipt of a letter from Ernst & Young LLP, independent
certified public accountants, addressed to Trident and the Company, in
substance and form satisfactory to counsel for Trident, with respect to the
financial statements and certain financial information contained in the
Prospectus.
(i) At the Closing Date, Trident shall receive a letter in form and
substance satisfactory to counsel for Trident from Ernst & Young LLP,
independent certified public accountants, dated the Closing Date and
addressed to Trident and the Company, confirming the statements made by
them in the letter delivered by them pursuant to the preceding subsection
as of a specified date not more than five (5) days prior to the Closing
Date.
All such opinions, certificates, letters and documents shall be in
compliance with the 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(b) 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 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 such action, proceeding or claim (whether commenced or
threatened) arising out of or based upon (A) any misrepresentation by the
Company or the Bank in this Agreement or any breach of warranty by the
Company or the Bank with
Trident Securities, Inc.
Innes Street Financial Corporation
Sales Agency Agreement
Page 20
respect to this Agreement or arising out of or based upon any untrue or
alleged untrue statement of a material fact or the omission or alleged
omission of a material fact required to be stated or necessary to make not
misleading any statements contained in (i) the Registration Statement or
the Prospectus or (ii) any application (including the Form AC and the Form
H-(e)1-S) 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, whether or not filed in any
jurisdiction, to effect the Conversion or qualify the Shares under the
securities laws thereof or filed with the Office or Commission, unless such
statement or omission was made in reliance upon and in conformity with
written information furnished 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, as the case may
be, or (B) the participation by Trident in the Conversion. This indemnity
shall be in addition to any liability the Company and the Bank may have to
Trident otherwise.
(b) The Company shall indemnify and hold Trident harmless for any
liability whatsoever arising out of (i) the Allocation Instructions 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.
(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 or the Bank within the meaning of Section 15 of the
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, written information
furnished to the Company or the Bank with respect to Trident by or on
behalf of Trident expressly for use in the Prospectus or in any
Application; (B) any misrepresentation by Trident in Section 2(b) of this
Agreement; or (C) any liability of the Company or the Bank which is found
in a final judgment by a court of competent jurisdiction (not subject to
further appeal) to have principally and directly resulted from gross
negligence or willful misconduct of Trident.
(d) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, 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 the commencement
thereof; but the omission so to notify the indemnifying party will not
relieve it from any liability which it may have to any
Trident Securities, Inc.
Innes Street Financial Corporation
Sales Agency Agreement
Page 21
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 the other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party, and
after notice from the indemnifying party to such indemnified party of 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 acceptable to the indemnified party, the indemnified party
may retain additional counsel, but shall bear the fees and expenses of such
counsel unless (i) the indemnifying party shall have specifically
authorized the indemnified party to retain such counsel or (ii) the parties
to such suit include such indemnifying party and the indemnified party, and
such indemnified party shall have been advised by counsel that one or more
material legal defenses may be available to the indemnified party which may
not be available to the indemnifying party, in which case the indemnifying
party shall not be entitled to assume the defense of such suit
notwithstanding the indemnifying party's obligation to bear the fees and
expenses of such counsel. 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. To the extent required by law, this Section 8
is subject to and limited by the provisions of Section 23A.
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 or the Bank and
Trident shall contribute to the aggregate losses, liabilities, claims, damages,
and expenses of the nature contemplated by said indemnity agreement incurred by
the Company or the Bank and 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 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
proportions as the total net proceeds from the Conversion received by the
Company and the
Trident Securities, Inc.
Innes Street Financial Corporation
Sales Agency Agreement
Page 22
Bank bear to the total commissions 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 the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the 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 commissions owed
Trident pursuant to this Agreement exceeds the amount of any damages which
Trident has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who is not guilty of such
fraudulent misrepresentation. To the extent required by law, this Section 8 is
subject to and limited by the provisions of Section 23A.
10. Survival of Agreements, Representations and Indemnities. The
-------------------------------------------------------
respective indemnities of the Company and the Bank and Trident and the
representation 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. Trident may terminate this Agreement by giving the
-----------
notice indicated below in this Section at any time after this Agreement becomes
effective as follows:
(a) 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
Trident Securities, Inc.
Innes Street Financial Corporation
Sales Agency Agreement
Page 23
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, condition or
business of the Company, or if the Bank 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; or if there shall have been a material adverse change in
the condition or prospects of the Company, the Bank or the Subsidiary.
(b) If Trident elects to terminate this Agreement as provided in this
Section, the Company and the Bank shall be notified promptly by Trident by
telephone or telegram, confirmed by letter.
(c) If this Agreement is terminated by Trident for any of the reasons
set forth in subsection (a) above, and to fulfill its obligations, if any,
pursuant to Sections 3, 6, 8(a) and 9 of this Agreement and upon demand,
the Company and the Bank shall pay Trident the full amount so owing
thereunder.
(d) The Bank may terminate the Conversion in accordance with the terms
of the Plan. Such termination shall be without liability to any party,
except that the Company and the Bank shall be required to fulfill their
obligations, if any, pursuant to Sections 3(b), 6, 8(a) and 9 of this
Agreement.
12. Notices. All communications hereunder, except as herein otherwise
-------
specifically provided, shall be in writing and if sent to Trident shall be
mailed, delivered or telegraphed and confirmed to Trident Securities, Inc., 0000
Xxx Xxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Mr. R. Xxx
Xxxxxxx, Xx. (with a copy to Xxxxxxx, Xxxxxx & Xxxxxxxx, 0000 Xxxxxxxxx Xxxxxx,
X.X., Xxxxxxxxxx, X.X. 00000, Attention: Xxxxxx X. Xxxxxx, Xx., Esquire) and if
sent to the Company or the Bank, shall be mailed, delivered or telegraphed and
confirmed to Innes Street Financial Corporation, P.O. Box 1929, 000 Xxxx Xxxxx
Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, Attention: Xxxxxx X. Xxxxxxx,
President (with a copy to Brooks, Pierce, XxXxxxxx, Xxxxxxxx & Xxxxxxx, 0000
Xxxxxxxxxxx Xxxxx, X.X. Xxx 00000, Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention:
Xxxx Xxxxxx, Esquire).
13. Parties. 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.
Trident Securities, Inc.
Innes Street Financial Corporation
Sales Agency Agreement
Page 24
14. Construction. Unless governed by preemptive federal law, this
------------
Agreement shall be governed by and construed in accordance with the substantive
laws of North Carolina.
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.
* * *
Please acknowledge your agreement to the foregoing by signing below and
returning to the Company one copy of this letter.
INNES STREET FINANCIAL CITIZENS BANK, FSB
CORPORATION
By: ________________________ By:________________________
Xxxxxx X. Xxxxxxx Xxxxxx X. Xxxxxxx
President and Chief Executive President and Chief Executive
Officer Officer
Date: October __, 1998 Date: October __, 1998
Agreed to and accepted:
TRIDENT SECURITIES, INC.
By: ________________________
Date: October __, 1998
Exhibit A
Trident Securities, Inc. is a registered selling agent in the jurisdictions
--
listed below:
Alabama Missouri
Alaska Montana
Arizona Nebraska
Arkansas Nevada
California New Hampshire
Colorado New Jersey
Connecticut New Mexico
Delaware New York
District of Columbia North Carolina
Florida North Dakota (Trident Securities, Inc. only, no agent)
Georgia Ohio
Idaho Oklahoma
Illinois Oregon
Indiana Pennsylvania
Iowa Rhode Island
Kansas South Carolina
Kentucky Tennessee
Louisiana Texas
Maine Vermont
Maryland Virginia
Massachusetts Washington
Michigan Tennessee
Minnesota Utah
Mississippi Wisconsin
Wyoming
Trident Securities, Inc. is not a registered selling agent in the jurisdictions
------
listed below:
Hawaii
South Dakota
Exhibit B
[Letterhead of Brooks, Pierce, XxXxxxxx, Xxxxxxxx & Xxxxxxx, L.L.P.]
_______________, 1998
Trident Securities, Inc.
0000 Xxx Xxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Re: Citizens Bank, FSB - Innes Street Financial Corporation
To Whom It May Concern:
We are rendering this opinion to Trident Securities, Inc. ("Trident" or
"you") as special counsel for Citizens Bank, FSB (the "Bank") and Innes Street
Financial Corporation (the "Company") pursuant to Section 7(a) of the Agency
Agreement dated _____________ (the "Agency Agreement") by and among the Bank,
the Company and you, as agent for the sale of up to2,248,250 shares of common
stock, no par value, of the Company (the "Common Stock") issued in connection
with the conversion of the Bank from a federally chartered mutual savings
association to a federally chartered capital stock savings association and the
simultaneous issuance of all of the issued and outstanding stock of the
converted Bank to the Company in accordance with the Bank's Plan of Conversion
(the "Plan"). All references in this opinion to instruments and other defined
terms shall mean the instruments and other terms as defined in the Agency
Agreement, except to the extent they are otherwise defined herein or the context
otherwise requires.
As special counsel for the Bank and the Company, we have reviewed such
corporate records, certificates, and other documents, and such questions of law,
as we have considered necessary for the purpose of rendering this opinion. In
the course of our review, we have assumed the genuineness of all signatures on
original documents, and the due execution and delivery of all documents
requiring due execution and delivery for the effectiveness thereof, except with
respect to execution and delivery of the Agency Agreement by the Company and the
Bank as to which we have relied upon representations of officers of the Bank and
the Company. With respect to questions of good standing of the Bank and the
Company, we have relied solely upon the official letters of appropriate
governmental authorities and representations of officers of the Bank and the
Company.
As to questions of fact material to the opinions hereinafter expressed, we
have relied upon the representations and warranties of the Company and the Bank
made in the Agency Agreement and the certificates of officers delivered at the
closing. We have made no examination or investigation for purposes of these
opinions to verify the accuracy or completeness of any financial, accounting,
pro forma, valuation, or statistical information or information with respect to
Trident set forth in the
Trident Securities, Inc.
_______________, 1998
Page 2
Registration Statement, the Prospectus, the Agency Agreement, or any of the
documents referred to herein or otherwise furnished to Trident or with respect
to any other accounting or financial matters and express no opinion with respect
thereto. We have also assumed for the purposes of the opinions expressed herein
that the Agency Agreement is a valid and binding obligation of Trident.
Anything to the contrary, expressly stated or implied, notwithstanding,
each of the opinions hereinafter expressed is subject to the following further
qualifications whether or not such opinions refer to such qualifications:
(1) We offer no opinion and do not purport to opine as to the
enforceability of provisions contained in any documents relating to the
Conversion or contemplated by the Agency Agreement or documents as to which the
Bank or the Company is a party (a) relating to disclaimers, liability
limitations with respect to third parties, releases, or legal or equitable
rights, or discharges of defenses and remedies, (b) fixing the amount of
liquidated damages, (c) requiring the payment of interest on interest, (d)
providing for indemnification or contribution, and (e) relating to the payment
of attorney's fees.
(2) Our opinions below are limited to the matters expressly set forth in
this opinion letter, and no opinion is to be implied or inferred beyond the
matters stated. Without limiting the foregoing, we express no opinion as to the
anti-fraud provisions of federal and state securities laws.
(3) We have made no independent investigation for purposes of these
opinions as to the accuracy or completeness of any representation, warranty,
date, or other information, written or oral, made or furnished in connection
with the Agency Agreement, and we have relied on the certificates of officers of
the Company and the Bank that none of such information contains any untrue
statement of a material fact or omits a material fact necessary to make the
statements made not misleading.
(4) We are not required to be licensed to practice law in any jurisdiction
other than North Carolina. The opinions expressed herein are limited solely to
the federal banking and securities laws and regulations and North Carolina
corporate law applicable to the Agency Agreement and the transactions
contemplated thereby, and we do not opine on any other federal law or the laws
of any other applicable jurisdiction.
(5) We have acted as special counsel in connection with the application of
federal securities and banking law and regulations and North Carolina corporate
law applicable to the Agency Agreement and the Conversion and, consequently,
there may exist matters of a legal nature concerning the Company, the Bank,
their subsidiary, or affiliated parties in connection with which we have not
been consulted and have not represented the Company, the Bank, or their
subsidiary.
(6) This opinion should in no way be construed as an opinion as to the
materiality of the
Trident Securities, Inc.
____________, 1998
Page 3
contents of the Registration Statement, the Prospectus, or the Conversion
Application.
(7) Except as otherwise expressly stated, this opinion shall be governed
and interpreted in accordance with the Legal Opinion Accord of the American Bar
Association Section of Business Law (1991).
Based upon and subject to the foregoing and in reliance thereon, and
subject to the assumptions, exceptions and qualifications set forth herein, it
is our opinion that:
(i) the Company has been duly incorporated and is validly existing
as a corporation under the laws of the State of North Carolina, and the
Bank is validly existing as a savings association in mutual form under the
laws of the United States, each with full corporate power and authority to
own its properties and conduct its business as such properties and business
are described in the Prospectus;
(ii) the Bank is a member of the Federal Home Loan Bank of Atlanta,
and the deposit accounts of the Bank are insured by the SAIF up to the
applicable legal limits;
(iii) to our actual knowledge, the activities of the Bank, as such
activities are described in the Prospectus, are permitted under federal law
and are permissible for a subsidiary of a North Carolina business
corporation, and, to our actual knowledge, the Bank does not have any
subsidiaries;
(iv) to our actual knowledge, the Bank has obtained all licenses,
permits and other governmental authorizations currently required for the
conduct of its business as such business is described in the Prospectus,
all such licenses, permits and other governmental authorizations are in
full force and effect and the Bank is in all material respects complying
therewith, except where the failure to hold such licenses, permits or
governmental authorizations or the failure to so comply would not have a
material adverse effect on the Company and the Bank, taken as a whole;
(v) there are no material legal or governmental proceedings pending
or, to our actual knowledge, threatened against or involving the assets of
the Company or the Bank (provided that for this purpose this firm does not
regard any litigation or governmental procedure to be "threatened" unless
the potential litigant or government authority has manifested to the
management of the Company or the Bank, or to this firm, a present intention
to initiate such litigation or proceeding);
(vi) to our actual knowledge, the execution and delivery of the
Agreement and the consummation of the Conversion by the Company and the
Bank do not constitute a material breach of or default (or an event which,
with notice or lapse of time or both, would constitute
Trident Securities, Inc.
____________, 1998
Page 4
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 or the Bank pursuant to any of the terms, provisions or
conditions of, any material agreement, contract, indenture, bond,
debenture, note, instrument or obligation to which the Company or the Bank
is a party or violate any governmental license or permit or any enforceable
published law, administrative regulation or order or court order, writ,
injunction or decree (subject to the satisfaction of certain conditions
imposed by the Office of Thrift Supervision (the "Office") in connection
with its approval of the Conversion Application), which breach, default,
encumbrance or violation would have a material adverse effect on the
condition (financial or otherwise), operations, business, assets or
properties of the Company and the Bank taken as a whole;
(vii) to our actual knowledge, there has been no material breach of
any provision of the Company's articles of incorporation or bylaws or the
Bank's charter 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) under any agreement, contract, indenture, bond, debenture, note,
instrument or obligation to which the Company or the Bank is a party or by
which any of them or any of their respective assets or properties may be
bound, or any governmental license or permit, or a violation of any
enforceable published law, administrative regulation or order, or court
order, writ, injunction or decree which breach, default, encumbrance or
violation would have a material adverse effect on the condition (financial
or otherwise), operations, business, assets or properties of the Company
and the Bank taken as a whole;
(viii) the 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 bankruptcy,
insolvency, moratorium, reorganization, receivership, conservatorship or
similar laws relating to or affecting the enforcement of creditors, rights
generally or the rights of creditors of depository institutions whose
accounts are insured by the FDIC or savings and loan holding companies the
accounts of whose subsidiaries are insured by the FDIC or by general equity
principles, regardless of whether such enforceability is considered in a
proceeding in equity or at law, and except to the extent that the
provisions of Sections 8 and 9 hereof may be unenforceable as against
public policy or pursuant to Section 23A, as to which we render no
opinion); and
(ix) each of the Company and the Bank has been qualified to do
business and, to our actual knowledge, 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 requires such qualification or,
if not so qualified and in good standing, failure to so qualify would not
have a material adverse effect on the Company and the Bank, taken as a
whole.
(x) the Plan complies with, and, to our actual knowledge, the
Conversion has been
Trident Securities, Inc.
____________, 1998
Page 5
effected in all material respects in accordance with, the HOLA and the OTS
regulations; to our actual knowledge, all of the terms, conditions,
requirements and provisions with respect to the Plan and the Conversion
imposed by the Office, except with respect to the filing or submission of
certain required post-Conversion reports or other materials by the Company
or the Bank, have been complied with by the Company and the Bank; and, to
our actual knowledge, no person has sought to obtain regulatory or judicial
review of the final action of the Office in approving the Plan;
(xi) the Company has authorized Common Stock as set forth in the
Registration Statement and the Prospectus, and the description of such
Common Stock in the Registration Statement and the Prospectus is accurate
in all material respects;
(xii) the issuance and sale of the Shares have been duly and validly
authorized by all necessary corporate action on the part of the Company;
the Shares, upon receipt of payment and issuance in accordance with the
terms of the Plan and the Agreement, will be validly issued, fully paid,
nonassessable and, except as disclosed in the Prospectus, free of
preemptive rights, and purchasers of the Shares from the Company, upon
issuance thereof against payment therefor, will acquire such Shares free
and clear of all claims, encumbrances, security interests and liens created
by the Company;
(xiii) the form of certificate used to evidence the Shares is in
proper form and complies in all material respects with applicable North
Carolina law;
(xiv) 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 such
capital stock, upon receipt of payment and issuance in accordance with the
terms of the Plan, will be validly issued, fully paid and nonassessable and
owned of record and, to our actual knowledge, beneficially by the Company;
(xv) subject to the satisfaction of the conditions of the Office's
approval of the Conversion Application, no further approval, authorization,
consent or other order of any federal governmental board or body is
required in connection with the execution and delivery of the Agreement and
the consummation of the Conversion, except with respect to the issuance to
the Bank of the Stock Charter by the Office and as may be required under
the securities laws of various jurisdictions and except as may be required
under the rules and regulations of the NASD;
(xvi) the execution and delivery of the Agreement and the
consummation of the Conversion have been duly and validly authorized by all
necessary corporate action on the part of each of the Company and the Bank;
Trident Securities, Inc.
____________, 1998
Page 6
(xvii) the statements in the Prospectus and incorporated by reference
in the Proxy Statement under the captions "Supervision and Regulation,"
"Taxation," "Restrictions on Acquisition of the Company," and "Description
of Capital Stock," insofar as they are, or refer to, statements of law or
legal conclusions (excluding financial data included therein, as to which
no opinion is expressed), have been prepared or reviewed by us and are
correct in all material respects;
(xviii) the Form AC has been approved by the Office, and the
Prospectus and the Proxy Statement have been authorized for use by the
Office; the Registration Statement has been declared effective by the
Commission; and to our actual knowledge, no proceedings are pending by or
before the Commission or the Office seeking to revoke or rescind the orders
declaring the Registration Statement effective or approving the Conversion
Application or, to our actual knowledge, are contemplated or threatened;
(xix) the execution and delivery of the Agreement and the
consummation of the Conversion by the Company and the Bank do not conflict
with or result in a breach of the charter or bylaws of the Company or the
Bank (in either mutual or stock form); and
(xx) the Conversion Application, the Registration Statement, the
Prospectus and the Proxy Statement, in each case as amended, if amended,
comply as to form in all material respects with the requirements of the
Securities Act of 1933, the HOLA, the SEC Regulations and the OTS
Regulations, as the case may be (except as to information with respect to
Trident included therein and financial statements, notes to financial
statements, financial tables and other financial and statistical data,
included therein, as to which no opinion is expressed); to our actual
knowledge, all documents and exhibits required to be filed with the
Conversion Application and the Registration Statement have been so filed
and the descriptions in the Conversion Application and the Registration
Statement of these documents and exhibits are accurate in all material
respects.
This opinion is being rendered solely for the benefit of the addressee
hereof and may not be relied upon by, nor may copies be delivered to, any other
person without our prior written consent. The opinion may be delivered to your
counsel. This opinion is given as of the date hereof and we assume no obligation
to advise you of changes that may hereafter be brought to our attention.
Very truly yours,
BROOKS, PIERCE, XXXXXXXX, XXXXXXXX
& XXXXXXX, L.L.P.
Exhibit C
[Letterhead of Brooks, Pierce, XxXxxxxx, Xxxxxxxx & Xxxxxxx, L.L.P.]
______________, 1998
Trident Securities, Inc.
0000 Xxx Xxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Re: Citizens Bank, FSB; Innes Street Financial Corporation
To Whom It May Concern:
We have acted as special counsel for Innes Street Financial Corporation
(the "Company") and Citizens Bank, FSB (the "Bank") in connection with the
preparation and filing with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Securities
Act"), of the Company's Registration Statement on Form S-1 (File No. 333-63363),
as amended, and the Bank's Application for Conversion on Form AC, as amended,
relating to the offering of the Company's common stock (the "Common Stock") in a
subscription offering in connection with the conversion of the Bank from a
federally chartered mutual savings association to a federally chartered stock
savings bank and the issuance of the Bank's capital stock to the Company
pursuant to the Bank's plan of conversion, adopted by the Bank's Board of
Directors on September 10, 1998. Such registration statement, as amended, when
it became effective is herein called the "Registration Statement," and the
related Prospectus dated November __, 1998 is herein called the "Prospectus."
Such application for conversion, as amended, when it receives approval is herein
called the "Conversion Application." This letter is furnished pursuant to
Section 7 (b) of the Agency Agreement dated ____________, 1998 (the "Agency
Agreement") among the Company, the Bank, and Trident Securities, Inc. ("Trident"
or "you"). All references in this letter to instruments and other defined terms
shall mean the instruments and other terms as defined in the Agency Agreement,
except to the extent they are otherwise defined herein or the context otherwise
requires.
Because the primary purpose of our professional engagement was not to
establish or confirm factual matters or financial, accounting, or statistical
matters and because of the wholly or partially non-legal character of many of
the statements contained in the Conversion Application, the Registration
Statement, and the Prospectus, for purposes of this letter, we are not passing
upon and do not assume any responsibility for the accuracy, completeness, or
fairness of the statements contained in the Conversion Application, the
Registration Statement, or the Prospectus and we make no representation that we
have independently verified the accuracy, completeness, or fairness of such
statements. Without limiting the foregoing, for purposes of this letter, we
assume no responsibility for, and have not independently verified, the accuracy,
completeness, or fairness of the financial statements and schedules and other
financial
Trident Securities, Inc,
______________, 1998
Page 2
and statistical data and stock valuation information, or information regarding
you included in the Conversion Application, the Registration Statement, and the
Prospectus, and we have not examined the accounting, financial, or statistical
records from which such financial statements, schedules, and data are derived.
We note that, although certain portions of the Conversion Application, the
Registration Statement, and the Prospectus (including financial statements and
schedules and stock valuation information) have been included therein on the
authority of "experts" within the meaning of the Securities Act, we are not such
experts with respect to any portion of the Conversion Application or the
Registration Statement, including without limitation such financial statements
or schedules or the other financial or statistical data included therein.
However, in the course of our acting as special counsel to the Company and
the Bank in connection with its preparation of the Conversion Application, the
Registration Statement, and the Prospectus:
(i) We participated in conferences with certain officers of, the
independent public and internal accountants for, and other representatives of
the Company and the Bank, and you and your counsel, at which, conferences the
Conversion Application, the Registration Statement and the Prospectus and
related matters were discussed and, while, for purposes of this letter, we have
not confirmed the accuracy or completeness of or otherwise verified the
information contained in the Conversion Application, the Registration Statement
or the Prospectus, and do not assume any responsibility for such information,
based upon such conferences and a review of documents deemed relevant for the
purpose of rendering our opinion (relying as to factual matters on certificates
of officers and other factual representations by the Company and the Bank) ,
nothing has come to our attention that would lead us to believe that the
Conversion Application, the Registration Statement, the Prospectus, or any
amendment or supplement thereto (except as to information in respect of Trident
contained therein and except as to the financial statements, the notes thereto,
statements concerning recent accounting pronouncements, and other tabular,
financial, statistical and appraisal data included therein as to which no view
is made) contained, as of the date of approval or effectiveness, as the case may
be, and as of the date hereof, an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading (it being understood that for purposes of this letter we have not
undertaken to verify independently the information in the Registration
Statement, the Conversion Application or the Prospectus and we, therefore, do
not assume any responsibility for the accuracy or completeness thereof.)
(ii) Since _________________ 1998, we have not participated with
representatives of the Bank or Company, representatives of the Company's
accountants, your representatives and counsel in any conferences or telephone
conversations during which the Conversion Application, the Registration
Statement, or the Prospectus were discussed, and since ___________, 1998, we
have not, for purposes of this letter, otherwise undertaken any additional
procedures for your
Trident Securities, Inc,
______________, 1998
Page 3
benefit that were intended or likely to elicit information concerning the
accuracy, completeness, or fairness of the statements made in the Conversion
Application, the Registration Statement or the Prospectus.
We are furnishing this letter to you solely for your benefit. This letter
is not to be used, circulated, quoted, or otherwise referred to for any other
purpose, except that a copy may be provided to your counsel.
Very truly yours,
BROOKS, PIERCE, XXXXXXXX, XXXXXXXX
& XXXXXXX, L.L.P.
