EXHIBIT 1.1
DRAFT
ONEIDA FINANCIAL CORP.
ONEIDA FINANCIAL, MHC
THE ONEIDA SAVINGS BANK
1,482,835 TO 2,307,117 SHARES
COMMON STOCK
(PAR VALUE $0.10 PER SHARE)
$10.00 PER SHARE
SALES AGENCY AGREEMENT
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[_________ ___], 1998
Trident Securities, Inc.
0000 Xxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Ladies and Gentlemen:
Oneida Financial Corp., a Delaware corporation (the "Company"), Oneida
Financial, MHC, a New York-chartered mutual holding company (the "MHC") and The
Oneida Savings Bank, a New York-chartered stock savings bank (the "Bank"), each
hereby confirms, as of [_________ ___], 1998, its agreement with Trident
Securities, Inc. ("Trident"), a broker-dealer registered with the Securities and
Exchange Commission (the "Commission") and a member of the National Association
of Securities Dealers, Inc. ("NASD"), as follows:
1. Introduction. Effective June 4, 1998, the Board of Trustees of the
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Bank adopted a reorganization and stock issuance plan (the "Plan") pursuant to
which the Bank is reorganizing from a New York-chartered mutual savings bank to
a New York-chartered stock savings bank with the Company, organized as a direct
subsidiary of the MHC, owning 100% of the capital stock of the Bank (together
with the Offerings, as defined below, the "Reorganization"). In accordance with
the Plan, the Company is offering 44.5% of the shares ("Shares") of its common
stock, par value $0.10 per share (the "Common Stock"), pursuant to
nontransferable subscription rights in a subscription offering (the
"Subscription Offering") to certain depositors of the Bank, the Bank's tax-
qualified employee benefit plans, including the Bank's Employee Stock Ownership
Plan (the "ESOP"), and employees, officers, and trustees of the Bank, who do not
qualify in any of the above categories. Shares for which subscriptions are not
received in the Subscription Offering may be offered to certain members of the
general public in a community offering, with preference given first to natural
persons residing in Madison county, New York, the towns or cities of Annsville,
Xxxxxx, Xxxxxxxx,
Trident Securities, Inc. [___________], 1998
Sales Agency Agreement Page 2.
Xxxxxxxx, Xxxxxx, Verona and Vienna in Oneida county, New York and the towns of
Fabius, Manlius and Pompey in Onondaga county, New York (the "Community
Offering" together with the Subscription Offering, the Offerings, subject to the
right of the Company and the Bank, in their sole discretion, to reject
subscriptions, in whole or in part, received in the Community Offering. In the
Offerings, the Company is offering between 1,482,835 and 2,006,189 Shares, with
the possibility of offering up to 2,307,117 Shares without a resolicitation of
subscribers. Except for certain benefit plans, no individual person, persons
having a joint account, or persons acting in concert may purchase more than
$200,000 of Shares issued in the Subscription Offering and $100,000 of Shares
issued in the Community Offering.
In connection with the Reorganization pursuant to the terms of the Plan (as
described in the Prospectus, as defined below), following the consummation of
the Reorganization subject to the approval of the depositors of the Bank and
compliance with certain conditions as may be imposed by regulatory authorities,
the Company will contribute to The Oneida Savings Bank Charitable Foundation, a
charitable foundation dedicated to supporting charitable causes and community
development activities in the Bank's market area (the "Foundation"), a number of
shares equal to 2.0% of Shares of the outstanding Common Stock, or between
65,245 and 88,272 Shares (subject to increase in certain circumstances to
101,513 Shares).
The Company and the Bank have been advised by Trident that it will utilize
its best efforts to assist the Company and the Bank with the sale of Shares in
the Offerings and, if deemed necessary, in a syndicated community offering (the
"Syndicated Community Offering") subject to the terms, conditions and procedures
as may be determined by the Company and the Bank. Prior to the execution of
this Agreement, the Company has delivered to Trident (a) the Prospectus, dated
[_________ ___], 1998, and (b) all amendment or supplements thereto, if any, to
be used in the Offerings. The Prospectus contains information with respect to
the Company, the MHC, the Bank and Shares of the Common Stock.
2. Representations and Warranties.
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(a) The Company, the MHC and the Bank. The Company, the MHC and the
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Bank, jointly and severally, represent and warrant as of the date of this
Agreement, and the Company, the MHC and the Bank, jointly and severally,
represent and warrant as of the Closing Date (as hereinafter defined), to
Trident that:
(i) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement, including
exhibits and an amendment or amendments thereto, on Form S-1 (No. 333-
_____), 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 the
Trident Securities, Inc. [___________], 1998
Sales Agency Agreement Page 3.
MHC's or the Bank's 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 the Commission and shall include any 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 the Community Offering, if
any, 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 the Community Offering, if
any, 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 the Commission a
Prospectus or Prospectus supplement containing information relating to
the results of the Subscription and the Community Offerings and
pricing information pursuant to Rule 424(c) of the SEC Regulations, in
either case in a form reasonably acceptable to the Company and
Trident.
(ii) The Bank has filed an application on Form 86-AC to the
New York State Banking Department ("Banking Department") for approval
of the Reorganization and the minority stock offering (the "Department
Application"), [which has been approved by the Banking Department. No
action by or before the Banking Department revoking such approval is
pending or, to the Bank's knowledge, threatened.]
(iii) The Company and the MHC have filed an application on
Form FRY-3 to register as a bank holding company (the "Holding Company
Application") with the Board of Governors of the Federal Reserve
System (the "Federal Reserve Board") pursuant to Section 3(a)(1) of
the Bank Holding Company Act of 1956, [which has been approved by the
Federal Reserve Board. No action by or before the Federal Reserve
Board revoking such approval is pending or, to the Company's or the
MHC's knowledge, threatened.]
Trident Securities, Inc. [___________], 1998
Sales Agency Agreement Page 4.
(iv) The Bank has filed a Notice of Intent to Convert to the
Federal Deposit Insurance Corporation ("FDIC") pursuant to 12 C.F.R.
(S) 303.15 of the Bank's intent to reorganize into a two-tier mutual
holding company structure (the "Notice"). The FDIC has issued a
conditional notice of non-objection to the Notice. [No action by or
before the FDIC effecting such non-objection is pending or, to the
Bank's knowledge, threatened.]
(v) At the date of the Prospectus and at all times
subsequent thereto through and including the Closing Date (as
hereinafter defined) (i) the Registration Statement and the Prospectus
(as amended or supplemented, if amended or supplemented) complied with
and will comply with the Act and the SEC Regulations, (ii) the
Prospectus (as amended and supplemented, if amended and supplemented)
complied with and will comply with all applicable provisions of the
Banking Law of the State of New York, as amended ("Banking Law"), and
the rules and regulations of the Banking Department and other
applicable New York law (collectively, the "Department Regulations"),
(iii) the Registration Statement (as amended or supplemented, if
amended or supplemented) did not and will 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 (iv) 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 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 the Prospectus.
(vi) The Company is duly organized and is in good standing as
a business corporation under the laws of the State of Delaware. The
MHC is duly organized and is in good standing as a mutual holding
company under the laws of the State of New York. The Bank is duly
organized and has a corporate existence as a stock savings bank under
the laws of the State of New York. Each of the Company, the MHC and
the Bank is validly existing 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 New York, and the deposit accounts of the Bank are
insured up to the applicable limits by the Bank Insurance Fund ("BIF")
of the FDIC. Each of the Company, the MHC 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 condition (financial or otherwise), operations,
business, assets, earnings or properties ("Material Adverse Effect")
of the Company, the MHC and the Bank, taken as a whole. Upon
completion of the
Trident Securities, Inc. [___________], 1998
Sales Agency Agreement Page 5.
transactions contemplated by the Prospectus, (i) all of the authorized
and outstanding capital stock of the Bank will be owned of record and
beneficially by the Company, (ii) all of the authorized and
outstanding stock of the Company will be issued to the MHC, the public
and the Foundation and (iii) the Company will have no direct
subsidiaries other than the Bank.
(vii) The Bank does not own equity securities of, or an
equity interest in, any business enterprise except as described in the
Prospectus; and such equity securities and equity interests are owned
by the Bank in accordance with all applicable law.
(viii) 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 or are not expected to
have a Material Adverse Effect on the Company, the MHC and the Bank
taken as a whole; and all of the leases and subleases material to the
operations or financial condition of each of the Company, the MHC and
the Bank under which each holds real or personal properties, including
those described in the Prospectus, are in full force and effect as
described therein.
(ix) The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby
and all actions in connection with the contribution of Shares to the
Foundation have been duly and validly authorized by all necessary
actions on the part of each of the Company, the MHC and the Bank, and
this Agreement is a legally valid and binding obligation of each of
the Company, the MHC 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 bank 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 or
23B of the Federal Reserve Act, as amended ("Section 23A" or "Section
23B", as applicable).
(x) There is no litigation or governmental proceeding
pending or, to the knowledge of the Company, the MHC or the Bank,
threatened against or involving the Company, the MHC, 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
Company, the MHC and the Bank, taken as a whole.
Trident Securities, Inc. [___________], 1998
Sales Agency Agreement Page 5.
(xi) The Company, the MHC and the Bank have received the
opinion of Xxxx Xxxxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. with respect to
federal income tax consequences of the Reorganization, to the effect
that the Reorganization will constitute a tax-free reorganization
under the Internal Revenue Code of 1986 (the "Code"), and an opinion
from PricewaterhouseCoopers, LLP, that the Reorganization will not be
a taxable transaction for the Company, the MHC or the Bank under the
laws of the State of New York, and the facts relied upon in such
opinions are accurate and complete.
(xii) Each of the Company, the MHC and the Bank has all such
corporate power, authority, authorizations, approvals, permits and
orders as may be required to enter into this Agreement and to carry
out the provisions and conditions hereof, to issue and sell Shares in
the Offerings and to issue and contribute Shares to the Foundation,
subject to the limitations set forth herein and subject to the
satisfaction of certain conditions imposed by the Banking Department
and/or the Federal Reserve Board in connection with their approvals of
the Department Application and the Holding Company Application, as the
case may be, and except as may be required under the securities, or
"blue sky," laws of various jurisdictions, and, in the case of the
Company, as of the Closing Date (as hereinafter defined), to issue and
sell Shares to be sold by the Company as provided herein, and, in the
case of the Bank, as of the Closing Date (as hereinafter defined), to
issue and sell the shares of its capital stock to be sold to the
Company as provided in the Plan, subject to the approval of the Bank's
organization certificate by the Superintendent of Banks of the State
of New York (the "Superintendent").
(xiii) To its knowledge, none of the Company, the MHC nor the
Bank is in violation of any rule or regulation of the Banking
Department or the FDIC that could reasonably be expected to result in
any enforcement action against the Company, the MHC, the Bank or their
officers or directors that might have a Material Adverse Effect on the
Company, the MHC and the Bank, taken as a whole.
(xiv) 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, net worth,
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 both the SEC Regulations and the
Department Regulations. Such financial statements have been prepared
in accordance with generally accepted accounting principles
consistently applied throughout the periods involved (and all
adjustments necessary for a fair presentation of results for such
periods have been made), 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
Trident Securities, Inc. [___________], 1998
Sales Agency Agreement Page 7.
accepted accounting principles may otherwise require. The tables and
other financial, statistical, and pro forma information and related
notes in the Prospectus accurately present the information purported
to be shown thereby at the respective dates thereof and for the
respective periods covered thereby.
(xv) There has been no material change in the financial
condition, results of operations or business, including assets and
properties, of the Company, the MHC 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, the MHC and
the Bank conform to the descriptions thereof contained in the
Prospectus. None of the Company, the MHC nor the Bank has any material
liabilities of any kind, contingent or otherwise, except as
specifically set forth in the Prospectus.
(xvi) There has been no breach, violation 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, the MHC and the Bank pursuant to any of the terms,
provisions or conditions of, any agreement, contract, indenture, bond,
debenture, note, instrument or obligation to which the Company, the
MHC 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, violation, default or
encumbrance would have a Material Adverse Effect on the Company, the
MHC and the Bank, taken as a whole; all agreements which are material
to the financial condition, results of operations, or business of the
Company, the MHC 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
knowledge of the Company, the MHC and the Bank, threatened any action
or proceeding wherein the Company, the MHC or the Bank would be
alleged to be in default thereunder.
(xvii) None of the Company, the MHC nor the Bank is in
violation of its respective articles or certificate of incorporation,
charter, or bylaws. The execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby do not and
will not conflict with or result in a breach of the respective
articles or certificate of incorporation, charter, or bylaws of the
Company, the MHC 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 or
require any consent or waiver under, or give rise to any right of
termination, cancellation, or acceleration contained in, or result in
the creation or imposition of any lien, charge or other encumbrance
upon any of the properties or assets of the Company, the MHC or the
Bank pursuant to any of the
Trident Securities, Inc. [___________], 1998
Sales Agency Agreement Page 8.
terms, provisions or conditions of any material agreement, contract,
indenture, bond, debenture, note, instrument or obligation to which
the Company, the MHC or the Bank is a party, or violate any
governmental license or permit or any enforceable published law,
administrative regulation, order or court order, writ, injunction or
decree (subject to the satisfaction of certain conditions imposed by
the Banking Department or the Federal Reserve Board in connection with
their approval of the Department Application or the Holding Company
Application, respectively), which breach, violation, default or
encumbrance would have a Material Adverse Effect on the Company, the
MHC and the Bank, taken as a whole.
(xviii) Subsequent to the respective dates as of which
information is given in the Registration Statement or the Prospectus
and prior to the Closing Date, except as otherwise may be indicated or
contemplated therein, none of the Company, the MHC nor the Bank has
issued any securities which will remain issued at the Closing Date,
has incurred any liability or obligation, direct or contingent, has
borrowed money, except borrowings by the Bank in the ordinary course
of business, or has entered into any other transaction not in the
ordinary course of business and consistent with prior practices, which
is material in light of the business of the Company, the MHC and the
Bank.
(xix) Upon consummation of the Reorganization and the issuance
of Shares to the Foundation, the authorized, issued and outstanding
equity capital stock of the Company shall be within the range as set
forth in the Prospectus under the caption "Capitalization," and no
equity or debt securities of the Company have been or shall be issued
and outstanding prior to the Closing Date; the issuance and the sale
of Shares by the Company and the contribution of Shares to the
Foundation have been duly authorized by all necessary action of the
Company and approved by the Banking Department and received the non-
objection of the FDIC (subject to any conditions imposed by the
Banking Department and the FDIC) and, when issued and delivered in
accordance with the terms of the Plan and paid for, or contributed to
the Foundation, as the case may be, 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 (a) the capital stock of the
Bank to the Company and (b) the Shares of the Company to the MHC, the
Foundation and the public have been duly authorized by all necessary
action of the MHC, the Bank and the Company and appropriate regulatory
authorities (subject to the satisfaction of any conditions imposed by
the Banking Department or the Federal Reserve Board in
Trident Securities, Inc. [___________], 1998
Sales Agency Agreement Page 9.
connection with their approvals of the Department Application and the
Holding Company Application, respectively), and such capital stock,
when issued in accordance with the terms of the Plan, will be fully
paid, nonassessable and free of preemptive or similar rights and will
conform in all material respects to the description thereof contained
in the Prospectus.
(xx) No approval of any regulatory or supervisory or other
public authority is required in connection with the execution,
delivery and performance 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 final approvals of the
Reorganization by the Banking Department and approval of the Company's
Holding Company Application by the Federal Reserve Board, and as may
be required under the securities laws of various jurisdictions.
(xxi) All contracts and other documents required to be filed
as exhibits to the Registration Statement, the Department Application,
the Notice or the Holding Company Application have been filed with the
Commission, the Banking Department, the FDIC or the Federal Reserve
Board, as the case may be.
(xxii) PricewaterhouseCoopers, LLP, which has audited the
financial statements of the Bank at December 31, 1997 and 1996 and for
the years ended December 31, 1997, 1996 and 1995 included in the
Prospectus, are, and were during the period covered in its report in
the Prospectus, independent public accountants within the meaning of
the Code of Professional Ethics of the American Institute of Certified
Public Accountants, the Act and the Securities Regulations.
(xxiii) FinPro, Inc., which has prepared the Reorganization
appraisal, dated September 17, 1998, described in the Prospectus is
independent of the Company and the Bank within the meaning of the
Department Regulations, is believed by the Company and the Bank to be
experienced and expert in rendering corporate appraisals of savings
institutions, and the Company and the Bank have no reason to believe
that FinPro, Inc. has not prepared the pricing information set forth
in the Prospectus in accordance with the requirements of the
Department Regulations.
(xxiv) For the past five (5) years, the Company, the MHC and
the Bank has 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, have paid all taxes that
have become due and, to 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 Company,
the MHC and the Bank, taken as a whole.
Trident Securities, Inc. [___________], 1998
Sales Agency Agreement Page 10.
(xxv) 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, including without limitation truth
in lending (including, without limitation, the requirements of
Regulation Z and 12 C.F.R. Part 226), real estate settlement
procedures, consumer credit protection, equal credit opportunity, and
all disclosure laws applicable to such loans, except for violations
which, if asserted, would not have a Material Adverse Effect on the
Company, the MHC and the Bank, taken as a whole.
(xxvi) 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 Reorganization have been prepared or reviewed
by the Bank and, to the knowledge of the Bank, are reliable, accurate,
and complete; and the Bank acknowledges that Trident had no role in
preparing or reviewing such records.
(xxvii) To the knowledge of the Company, the MHC and the Bank,
none of the Company, the MHC, the Bank nor directors, trustees,
officers or employees of the Company, the MHC or the Bank have made
any payment of, or set aside any, funds of the Company, the MHC or the
Bank as a loan to any person other than to the ESOP for the purchase
of the Shares or as otherwise prohibited by law.
(xxviii) To the knowledge of the Company, the MHC and the Bank,
each of the Company, the MHC and the Bank is in compliance in all
material respects with all Environmental Law (as hereinafter defined),
and none of the Company, the MHC nor the Bank has been notified or is
otherwise aware that any of them is potentially liable, or is
considered potentially liable, under any Environmental Law, including
the Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. (S) 9601 et seq. or any similar state or local law.
There are no actions, suits, regulatory investigations or other
proceedings pending or, to the knowledge of the Company, the MHC or
the Bank, threatened against the Company, the MHC or the Bank relating
to Environmental Law matters, nor does the Company, the MHC or the
Bank have any reason to believe any such proceedings may be brought
against any of them. To the knowledge of the Company, the MHC and the
Bank, no disposal, release or discharge of hazardous waste, hazardous
substances, toxic substances, pollutants, irritants or contaminants,
including petroleum and gas products, as any of such terms may be
defined under any Environmental Law, has occurred on, in, at or about
any of the facilities or properties of the Company, the MHC or the
Bank in violation of Environmental Law, or, to the knowledge of the
Company, the MHC and the Bank, has occurred on, in, at or about any of
the facilities or properties pledged to the Bank as collateral for any
loan or extension of credit by the Bank, except such
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disposal, release or discharge as reasonably could not be deemed to
have a Material Adverse Effect on the Company, the MHC and the Bank,
taken as a whole.
"Environmental Law" means any federal, state, local or
foreign law, statute, ordinance, rule, regulation, code, license,
permit, authorization, approval, consent, order, judgment, decree,
injunction or agreement with any agency (i.e., any federal, state or
local agency responsible for regulating or enforcing the matters
identified herein) relating to (i) the protection, preservation or
restoration of the environment (including, without limitation, air,
water vapor, surface water, groundwater, drinking water supply,
surface soil, subsurface soil, plant and animal life or any other
natural resource), and/or (ii) the usage, storage, recycling,
treatment, generation, transportation, processing, handling, labeling,
production, release or disposal of any substance presently listed,
defined, designated or classified as hazardous, toxic, radioactive or
dangerous, or otherwise regulated, whether by type or by quantity,
including any material containing any such substance as a component.
(xxix) At the Closing Date, the Company, the MHC and the Bank
will have completed the conditions precedent to, and shall have
conducted the Reorganization in all material respects in accordance
with, the Plan, the Department Regulations and all other applicable
laws, regulations, published decisions and orders, including all
terms, conditions, requirements and provisions precedent to the
Reorganization imposed by the Banking Department and the Federal
Reserve Board.
(xxx) The Foundation has been or will be prior to the Closing
Date duly incorporated and is validly existing as a not-for-profit
corporation in good standing under the laws of the State of Delaware
with full corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the
Registration Statement and the Prospectus. The Foundation will not be
a bank holding company within the meaning of the BHCA and 12 C.F.R.
Part 225 as a result of the issuance of the Foundation Shares to it in
accordance with the terms of the Plan and in the amounts as described
in the Prospectus. All approvals required to establish the Foundation
and to contribute the Foundation Shares thereto have been received
and, except as specifically disclosed in the Prospectus and the Proxy
Statement, there are no agreements or understandings, written or oral,
between the Company or the Bank and the Foundation with respect to the
control, directly or indirectly, over the voting and the acquisition
or disposition of the Foundation Shares to be contributed by the
Company to the Foundation. The Foundation Shares to be issued to the
Foundation in accordance with the Plan and as described in the
Prospectus will have been duly authorized for issuance and, when
issued and contributed by the Company pursuant to the Plan, will be
duly and validly issued, fully paid and nonassessable.
Trident Securities, Inc. [___________], 1998
Sales Agency Agreement Page 12.
(b) Trident. Trident represents and warrants to the Company, the MHC
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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 the State of North Carolina, with full
corporate power and authority to provide the services to be furnished
to the Company, the MHC 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 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) 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 attached 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 Reorganization
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 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, court decree or injunction by which
Trident is bound.
Trident Securities, Inc. [___________], 1998
Sales Agency Agreement Page 13.
(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 of the representations and warranties herein contained, but subject to the
terms and conditions herein set forth, the Company, the MHC and the Bank hereby
employ Trident as their agent to utilize its best efforts to assist with the
sale of the Shares in the Offerings.
In the event the Company is unable to sell a minimum of 1,482,835 Shares
(or such lesser number as the Banking Department may permit) within the period
herein provided, this Agreement shall terminate, and the Company, the MHC and
the Bank shall refund promptly to any persons who have subscribed for any
Shares, the full amount which it may have received from them, together with
interest as provided in the Plan, and no party to this Agreement shall have any
obligation to the other party hereunder, except as set forth in Sections 6, 8,
and 9 hereof. Appropriate arrangements for placing the funds received from
subscriptions for Shares in 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 subscribers as set forth
above, or for delivery to the Company if all Shares are sold.
If all conditions precedent to the consummation of the Reorganization 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 or promptly after the
Closing Date. Such release for delivery shall be against payment to the Company
by any means authorized pursuant to the Prospectus, at the office of the Company
at 000 Xxxx Xxxxxx, Xxxxxx, Xxx Xxxx 00000 or at such other place as shall be
agreed upon among the parties hereto. The date upon which Trident is paid the
compensation due hereunder is herein called the "Closing Date."
Trident may assemble and manage a selling group of broker-dealers, which
are members of the NASD, to participate in the solicitation of orders for Common
Stock in the event of the Syndicated Community Offering. In such event, 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
Trident Securities, Inc. [___________], 1998
Sales Agency Agreement Page 14.
authorization to execute the order form on the subscribers behalf, (ii) Trident
will mail acknowledgments of receipt of orders to each subscriber confirming
interest on the business day following such confirmation, (iii) Trident will
debit accounts of such subscribers on the third business day ("debit date")
following receipt of the confirmation referred to in (i), and (iv) Trident will
forward completed order forms together with such funds to the Bank on or before
twelve noon on the next business day following the debit date for deposit in a
segregated account. Trident acknowledges that if the procedure in clause (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 upon completion
and closing of the Reorganization and the Offerings:
(a) A management fee equal to $200,000. For stock sold by other NASD
member firms under selected dealer agreements, the commission payable shall
be as agreed upon jointly by the Bank and Trident to reflect market
requirements at the time of the stock allocation in the Syndicated
Community Offering. All such fees payable to Trident are to be payable in
next day funds to Trident in Raleigh, North Carolina, on the Closing Date.
(b) Trident shall be reimbursed for allowable expenses, incurred by
it whether or not the Offerings are successfully completed; provided,
--------
however, that (i) reimbursable legal fees will not exceed $35,000, (ii)
-------
out-of-pocket expenses will not exceed $20,000 and (iii) neither the
Company, the MHC nor the Bank shall pay or reimburse Trident for any of the
foregoing expenses accrued after Trident shall have notified the Company,
the MHC or the Bank of its election to terminate this Agreement pursuant to
Section 11 hereof or after such time as the Company, the MHC or the Bank
shall have given notice in accordance with Section 12 hereof that Trident
is in breach of this Agreement. Full payment to defray Trident's
reimbursable expenses shall be made in next-day funds on the Closing Date
or, if the Reorganization is not completed and is terminated for any
reason, within ten (10) business days of receipt by the Company, the MHC or
the Bank 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 and the
Syndicated Community Offering to be extended beyond their original
expiration dates, Trident shall be reimbursed for its allocable expenses
(including legal expenses) incurred during such extended period, provided
--------
that the allowance for allowable expenses provided for in the immediately
preceding paragraph (b) above have been exhausted.
Trident Securities, Inc. [___________], 1998
Sales Agency Agreement Page 15.
(d) The Company shall pay any stock issue and transfer taxes which
may be payable with respect to the sale of the Shares. The Company, the MHC
and the Bank also shall pay all expenses of the Reorganization including,
but not limited to, their attorneys' fees, the fees of the independent
appraiser, NASD filing fees, other filing and registration fees, 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 Reorganization.
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 1,482,835
and a maximum of 2,006,189 Shares, with the possibility of offering up to
2,307,117 Shares (except as the Banking Department and the FDIC may permit such
amount to be decreased or increased) in a Subscription Offering and, if
necessary, any Shares that remain unsubscribed at the conclusion of the
Subscription Offering, in a Community Offering and a Syndicated Community
Offering. The Shares are to be offered to the public at the price set forth on
the cover page of the Prospectus.
5. Further Agreements. The Company, the MHC 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 shall 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 or amendment to
the Prospectus or the Department Application has been filed, (ii) of the
issuance by the Commission, the Banking Department, the FDIC or the Federal
Reserve Board of any stop order relating to the Registration Statement, the
Department Application, the Holding Company Application or the Prospectus,
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 Shares for offering or sale in any jurisdiction, and (iv)
of the receipt of any comments from the Commission, the Banking Department,
the FDIC or the Federal Reserve Board relating to the Registration
Statement, the Department Application, the Holding Company Application, the
Prospectus or the Notice. If the Commission enters a stop order relating to
the Registration Statement or if the Banking Department, the FDIC or the
Federal Reserve Board cause the transaction to be halted at any time, the
Company, the MHC and the Bank shall make every reasonable effort to obtain
the lifting of such order or the resumption of the transaction at the
earliest possible time.
Trident Securities, Inc. [___________], 1998
Sales Agency Agreement Page 16.
(c) During the time when the Prospectus is required to be delivered
under the Act, the Company, the MHC and the Bank 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 SEC 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 Shares, any event
relating to or affecting the Company, the MHC and the Bank shall occur as a
result of which it is necessary, in the opinion of counsel for Trident, to
amend or supplement the Prospectus in order to make the Prospectus not
false or misleading in light of the circumstances existing at the time it
is delivered to a purchaser of 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 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, the MHC 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 or blue sky 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 as of December 31, 1996 and supplemental eligible
account holders as of September 30, 1998 in accordance with the appropriate
regulatory requirements.
(f) The Company has filed the 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 Reorganization.
The Company shall maintain the effectiveness of such registration
Trident Securities, Inc. [___________], 1998
Sales Agency Agreement Page 17.
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 forty-five (45) 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
first day of the Company's fiscal quarter next following the effective date
(as defined in 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 under the
caption "Use of Proceeds."
(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 and the Bank shall advise Trident, if necessary, as
to the allocation of deposits, in the case of eligible account holders and
supplemental eligible account holders, and, in the event of an
oversubscription, shall provide Trident final instructions as to the
allocation of Shares ("Allocation Instructions") and such information shall
be accurate and reliable. Trident shall be entitled to rely completely and
without independent investigation 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) for Shares.
(l) The Company, the MHC and the Bank will take such actions and
furnish such information as is reasonably requested by Trident in order for
Trident to ensure compliance with the NASD's "Interpretation Relating to
Free-Riding and Withholding."
(m) The Company will not sell or issue, contract to sell or issue, or
otherwise dispose of for any period of ninety (90) days after the Closing
Date, without Trident's prior written consent, any share of the Company's
capital stock other than the Common Stock.
Trident Securities, Inc. [________ _____], 1998
Sales Agency Agreement Page 18.
(n) Upon consummation of the Reorganization, the Company will list
the Common Stock on The Nasdaq Stock Market Inc. ("Nasdaq") under the
symbol "ONFC." The Company will file with Nasdaq all documents and notices
required by Nasdaq.
(o) The Company will maintain appropriate arrangements for depositing
all funds received from persons mailing subscriptions for or orders to
purchase Common Stock in the Offerings on an interest-bearing basis at the
rate described in the Plan until the Closing Date and satisfaction of all
conditions precedent to the release of the Company's obligation to refund
payments received from person subscribing for or ordering Common Stock in
the Offerings in accordance with the Plan or until such funds have been
made to the persons entitled thereto in accordance with the Plan.
6. Payment of Expenses. Whether or not the Reorganization is
-------------------
consummated, the Company, the MHC and the Bank agree jointly and severally to
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 Subscription and
Community Offerings and (b) in addition, if the Company is unable to sell a
minimum of 1,482,835 Shares or such lesser amount as the Banking Department may
permit or the Reorganization is otherwise terminated, the Company, the MHC and
the Bank agree jointly and severally to reimburse Trident for allowable expenses
incurred by Trident relating to the Offering of the Shares as provided in
Section 3 hereof; provided, however, that neither the Company, the MHC nor the
-------- -------
Bank shall pay or reimburse Trident for any of the foregoing expenses accrued
after Trident shall have notified the Company, the MHC or the Bank of its
election to terminate this Agreement pursuant to Section 11 hereof or after such
time as the Company, the MHC 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 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, the MHC and the Bank of their obligations hereunder, and to the
following conditions:
(a) At the Closing Date, Trident shall receive the favorable opinion
of Xxxx Xxxxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C., special counsel for the
Company, the MHC and the Bank, dated the Closing Date, addressed to
Trident, in form and substance satisfactory to counsel for Trident and
substantially as set forth in Exhibit B attached hereto.
In rendering such opinion, such counsel may rely as to matters of fact
on certificates of officers and directors of the Company, the MHC and the
Bank and certificates of public officials delivered pursuant hereto. Such
counsel may assume that any agreement is the valid and binding obligation
of any parties to such agreement other than the Company, the MHC
Trident Securities, Inc. [________ _____], 1998
Sales Agency Agreement Page 19.
and the Bank. Such opinion may be governed by, and interpreted in
accordance with, the Legal Opinion Accord (the "Accord") of the ABA Section
of Business Law (1991) and, as a consequence, references in such opinions
to such counsel's "knowledge" may be limited to "actual knowledge" as
defined in the Accord (or knowledge based on certificates). Such opinions
may be limited to present statutes, regulations and judicial
interpretations, and to facts as they presently exist; in rendering such
opinion, such counsel need assume no obligation to revise or supplement
them should the present laws be changed by legislative or regulatory
action, judicial decision, or otherwise; and such counsel need express no
view, opinion, or belief with respect to whether any proposed or pending
legislation, if enacted, or any regulations or any policy statements issued
by any regulatory agency, whether or not promulgated pursuant to any such
legislation, would affect the validity of the execution and delivery by the
Company, the MHC and the Bank of this Agreement or the issuance of the
Shares.
(b) At the Closing Date, Trident shall receive the letter of Xxxx
Xxxxxx Xxxxxx Xxxxxxxx & Xxxxxx, dated the Closing Date, addressed to
Trident, in form and substance reasonably satisfactory to counsel for
Trident and substantially as set forth in Exhibit C attached hereto.
(c) Counsel for Trident shall have been furnished such documents as
it reasonably may require for the purpose of enabling it 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, the MHC 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 financial
condition, business or results of operations of the Company, the MHC 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, the
MHC and the Bank after the latest date as of which the financial condition
of the Company, the MHC or the Bank is set forth in the Prospectus other
than transactions referred to or contemplated therein, transactions in the
ordinary course of business, and transactions which are not material to the
Company, the MHC and the Bank, taken as a whole; (iii) none of the Company,
the MHC nor the Bank shall have received from the Commission, the Banking
Department, the FDIC or the Federal Reserve Board, 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, the MHC and
the Bank, taken as a whole, with which they have not complied; (iv) no
action, suit, or proceeding, at law or in equity or before or by any
federal or state commission, board, or other administrative agency, shall
be pending or threatened against
Trident Securities, Inc. [________ _____], 1998
Sales Agency Agreement Page 20.
the Company, the MHC 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 Company, the MHC 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 or blue sky 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 officer and the principal financial officer of each of
the Company, the MHC 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 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, the MHC
or the Bank; (ii) since the date the Prospectus became authorized 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,
financial condition, or results of operations of the Company, the MHC 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 knowledge of such officers, no order has been issued by the Commission,
the Banking Department, the FDIC or the Federal Reserve Board, to suspend
the Subscription Offering or the Community Offering or the effectiveness of
the Prospectus, and no action for such purposes has been instituted or
threatened by the Commission, the Banking Department, the FDIC or the
Federal Reserve Board; (iv) to the knowledge of such officers, no person
has sought to obtain review of the final actions of the Banking Department
or the Federal Reserve Board 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) a copy of the letter from the Banking Department authorizing
the use of the Prospectus and related materials; (ii) a copy of the order
of the Commission declaring the Registration Statement effective; (iii) if
available from the Banking Department, copies of documents evidencing the
corporate existence of the Bank and the MHC; (iv) a copy of the letter from
the appropriate state authority evidencing the incorporation (and, if
generally available from such authority, good standing) of the Company; (v)
a copy of the Company's certificate of incorporation certified by the
appropriate state governmental authority; (vi) a copy of the non-objection
letter of the FDIC; and (vii) a copy of the order of the Federal Reserve
Board approving the Holding Company Application.
(g) Concurrently with the execution of this Agreement, Trident shall
receive a letter from PricewaterhouseCoopers, LLP, dated as of the date
hereof and addressed to Trident: (i) such letter confirming that
PricewaterhouseCoopers, LLP is a firm of
Trident Securities, Inc. [________ _____], 1998
Sales Agency Agreement Page 21.
independent public accountants within the meaning of the Act and the FDIC's
securities disclosure regulations and 12 C.F.R. (S) 335.604(a) and no
information concerning its relationship with or interests in the Bank is
required by the Department Application, and stating in effect that, in
PricewaterhouseCoopers, LLP's opinion, the financial statements of the Bank
as are included in the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the Department
Regulations, the Act, the SEC Regulations and generally accepted accounting
principles; (ii) stating in effect that, on the basis of certain agreed
upon procedures (but not an audit examination in accordance with generally
accepted auditing standards) consisting of a reading of the latest
available unaudited interim financial statements of the Bank, prepared by
the Bank, a reading of the minutes of the Board of Directors and
shareholders of the Bank and consultations with officers of the Bank
responsible for financial and accounting matters, nothing came to their
attention which caused them to believe that: (A) such unaudited financial
statements, including "Recent Developments," are not in conformity with
generally accepted accounting principles applied on a basis substantially
consistent with that of the audited financial statements included in the
Prospectus; (B) during the period from the date of the latest unaudited
financial statements included in the Prospectus to a specified date not
more than three business days prior to the date hereof, there was any
material increase in borrowings, and any other form of debt other than
deposits of the Bank (increases in borrowings will not be deemed to be
material if such increase in total borrowings does not exceed $1,000,000);
(C) there was any decrease in retained earnings of the Bank at the date of
such letter as compared with amounts shown in the latest unaudited
statement of condition included in the Prospectus, including "Recent
Developments;" or (D) there was any decrease in net income or net interest
income of the Bank for the number of full months commencing immediately
after the period covered by the latest unaudited income statement included
in the Prospectus, including "Recent Developments," and ended on the latest
month end prior to the date of the Prospectus or such letter as compared to
the corresponding period in the preceding year; and (iii) stating that, in
addition to the audit examination referred to in its opinion included in
the Prospectus and the performance of the procedures referred to in clause
(ii) of this subsection (g), they have compared with the general accounting
records of the Bank, which are subject to the internal controls of the
Bank, accounting system and other data prepared by the Bank, directly from
such accounting records, to the extent specified in such letter, such
amounts and/or percentages set forth in the Prospectus as Trident may
reasonably request; and they have found such amounts and percentages to be
in agreement therewith (subject to rounding).
(h) At the Closing Date, Trident shall receive a letter in form and
substance satisfactory to counsel for Trident from PricewaterhouseCoopers,
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.
Trident Securities, Inc. [________ _____], 1998
Sales Agency Agreement Page 22.
All such opinions, certificates, letters, and documents shall be in compliance
with the provisions hereof only if they are satisfactory to Trident and its
counsel in their reasonable opinion. 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 its counsel shall be deemed a representation and
warranty by the Company, the MHC 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 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, the MHC and the
Bank shall reimburse Trident for their expenses as provided in Section 3 hereof.
8. Indemnification.
---------------
(a) The Company, the MHC 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, the MHC or the Bank in this Agreement or
any breach of warranty by the Company, the MHC or the Bank with 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 or notification (including the Department Application,
the Holding Company Application, the Notice or other document or
communication (in this Section 8 collectively called the "Applications")
prepared or executed by or on behalf of the Company, the MHC or the Bank or
based upon written information furnished by or on behalf of the Company,
the MHC or the Bank, whether or not filed in any jurisdiction, to effect
the Reorganization or qualify the Shares under the securities laws thereof
or filed with the Commission, the Banking Department, the FDIC or the
Federal Reserve Board, unless such statement or omission was made in
reliance upon and in conformity with written information furnished to the
Company, the MHC 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 Reorganization. This indemnity shall be in addition to
any liability the Company, the MHC and the Bank may have to Trident
otherwise.
(b) The Company and the Bank shall indemnify and hold Trident
harmless for any liability whatsoever arising out of (i) the Allocation
Instructions or (ii) any records of
Trident Securities, Inc. [________ _____], 1998
Sales Agency Agreement Page 23.
account holders and depositors of the Bank delivered to Trident by the Bank
or its agents for use during the Reorganization.
(c) Trident agrees to indemnify and hold harmless the Company, the
MHC and the Bank, their officers, directors, and employees and each person,
if any, who controls the Company, the MHC and 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, the MHC 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 Trident, 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 (provided that it is agreed and
understood that the only information so furnished is set forth in the
Prospectus under the caption "The Offering and the Reorganization -- Plan
of Distribution and Selling Commissions;" (B) any misrepresentation by
Trident in Section 2(b) of this Agreement; or (C) any liability of the
Company, the MHC 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. It is expressly agreed, however, that Trident shall
not be liable for any loss, liability, claim, damage, or expense which in
the aggregate exceeds the amount paid (excluding reimbursable expenses) to
Trident under this Agreement.
(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 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
Trident Securities, Inc. [________ _____], 1998
Sales Agency Agreement Page 24.
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. In no event shall the Company, the MHC and the
Bank be liable for the fees and expenses of more than one counsel, separate
from its own counsel, for Trident in connection with any one action or
separate but similar or related actions in the same jurisdiction arising
out of the same allegations or circumstances. 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. Notwithstanding the
provisions of this Section 8, the Bank shall not provide indemnification to
the Company, the MHC or Trident solely to the extent that such
indemnification would cause the Bank to violate Section 23A or Section 23B.
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 the Company, the MHC, the
Bank or Trident other than in accordance with its terms, the Company, the MHC 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, the MHC or the Bank and Trident (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company, the MHC and the Bank, on the one hand, and Trident, on the other hand,
from the offering of 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, the MHC and 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, the MHC and the Bank, on the one hand, and Trident, on
the other hand, shall be deemed to be in the same proportions as the total
proceeds from the Reorganization (before deducting expenses) received by the
Company, the MHC and the Bank bear to the total fees received by Trident under
this Agreement. The relative fault of the Company, the MHC and the Bank, on the
one hand, and Trident, on the other hand, 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, the MHC 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, the MHC, 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
Trident Securities, Inc. [________ _____], 1998
Sales Agency Agreement Page 25.
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 9, Trident shall not be required
to contribute any amount in excess of the amount by which fees owed Trident
pursuant to this Agreement exceed the amount of any damages which Trident has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission for which Trident would be provided
indemnification under Section 8 hereof. 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.
10. Survival of Agreements, Representations, and Indemnities. The
--------------------------------------------------------
respective indemnities of the Company, the MHC and the Bank and of Trident and
the representation and warranties of the Company, the MHC 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,
the MHC 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 Shares, and any legal representative of
Trident, the Company, the MHC, 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 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 Reorganization; or if a moratorium in foreign exchange trading by major
international associations or persons has been declared; or if there shall
have been a material change in the capitalization, condition or business of
the Company, the MHC or the Bank, 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 change in the condition or prospects of the Company, the MHC or
the Bank.
(b) If Trident elects to terminate this Agreement as provided in this
Section 11, the Company, the MHC and the Bank shall be notified promptly by
Trident by telephone or telegram and confirmed by letter pursuant to
Section 12 hereof.
Trident Securities, Inc. [________ _____], 1998
Sales Agency Agreement Page 26.
(c) If this Agreement is terminated for any of the reasons set forth
in subsection (a) above, and to fulfill their obligations, if any, pursuant
to Sections 3(b), 3(c), 3(d), 6, 8(a) and 9 of this Agreement and upon
demand, the Company, the MHC and the Bank shall pay to Trident the full
amount so owing thereunder.
(d) The Bank may terminate the Reorganization in accordance with the
terms of the Plan. Such termination shall be without liability to any
party, except that the Company, the MHC and the Bank shall be required to
fulfill their obligations, to the extent applicable, pursuant to Sections
3(b), 3(c), 3(d), 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: Xx. Xxxxxxx
X. Xxxxxxx, Managing Director (with a copy to Xxxxxxx Xxxxxxxx & Wood, Xxx Xxxxx
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. XxXxxxxxxx, Esq.)
and, if sent to the Company, the MHC or the Bank, shall be mailed, delivered or
telegraphed and confirmed to Oneida Financial Corp., Oneida Financial, MHC or
The Oneida Savings Bank, as the case may be, 000 Xxxx Xxxxxx, Xxxxxx, Xxx Xxxx
00000, Attention: Xx. Xxxxxxx X. Xxxxxx (with a copy to Xxxx Xxxxxx Xxxxxx
Xxxxxxxx & Xxxxxx, P.C., 0000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 000, Xxxxxxxxxx,
X.X. 00000, Attention: Xxxx Xxxxxx, Esq.).
13. Parties. This Agreement shall inure solely to the benefit of, and
-------
shall be binding upon, Trident, the Company, the MHC, the Bank and the
controlling and other persons referred to in Section 8 hereof, and their
respective successors, legal representatives and assigns, and no other person
shall have or be construed to have any legal or equitable right, remedy or claim
under or in respect of or by virtue of this Agreement or any provision herein
contained.
14. Construction. Unless governed by preemptive federal law, this
------------
Agreement shall be governed by and construed in accordance with the substantive
laws of the State of New York.
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.
[Remainder of page intentionally left blank]
Please acknowledge your agreement to the foregoing by signing below and
returning to the Company one copy of this letter.
ONEIDA FINANCIAL CORP. THE ONEIDA SAVINGS BANK
By:_____________________________ By:____________________________________
Xxxxxxx X. Xxxxxx
President and Chief Executive Officer
Executive Officer
Date:___________________________ Date:__________________________________
ONEIDA FINANCIAL, MHC
By:_____________________________
Xxxxxxx X. Xxxxxx
President and Chief Executive Officer
Date:___________________________
Agreed to and accepted:
TRIDENT SECURITIES, INC.
By:_____________________________
Xxxxxxx X. Xxxxxxx
Managing Director
Date:___________________________
EXHIBIT A
Jurisdictions where Trident is a Registered Selling Agent
---------------------------------------------------------
Trident is a registered selling agent in the jurisdictions listed below:
--
Alabama Missouri
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 agents)
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 West Virginia
Minnesota Wisconsin
Mississippi Wyoming
Trident is not a registered selling agent in the jurisdictions listed below:
---
Alaska
Hawaii
Montana
South Dakota
Utah
EXHIBIT B
Opinion of Luse, Lehman, Xxxxxx, Xxxxxxxx & Xxxxxx, P.C.
Required under Section 7(a) of the Sales Agency Agreement
---------------------------------------------------------
[Xxxx, Xxxxxx to insert introduction]
(i) the Company is duly incorporated and validly existing as a
corporation in good standing under the laws of the State of Delaware, the
MHC is duly organized and validly existing as a mutual holding company in
good standing under the laws of the State of New York, and the Bank is
validly existing as a stock savings bank in good standing under the laws of
the State of New York; each with full power and authority to own its
properties and conduct its business as described in the Prospectus;
(ii) the Bank is a member of the Federal Home Loan Bank of New
York, and the deposit accounts of the Bank are insured by the Bank
Insurance Fund of the FDIC, up to the maximum amount permitted by law;
(iii) to our knowledge, the activities of the Bank, as such
activities are described in the Prospectus, are permitted under laws of the
State of New York;
(iv) The Plan complies with and the formation of the Company as
the holding company for the Bank has been effected in all material respects
in accordance with all applicable laws, rules, and regulations, and, to our
knowledge, decisions, and orders; all of the terms, conditions,
requirements, and provisions with respect to the Plan and the
Reorganization imposed by the Banking Department and the Federal Reserve
Board, except with respect to the filing or submission of certain required
post-Reorganization reports or other materials by the Company, the MHC or
the Bank, have been complied with by the Company, the MHC and the Bank;
and, to our knowledge, no person has sought to obtain regulatory or
judicial review of the final action of the Banking Department in approving
the Plan;
(v) As of the Closing Date, the Company has authorized Common
Stock as set forth in the Registration Statement and the Prospectus; the
Bank has authorized the capital stock as set forth in the Department
Application and the Prospectus; and the description of the Common Stock
and the capital stock of the Bank provided in the Registration Statement,
the Prospectus, and the Department Application, as applicable, is accurate
in all material respects;
(vi) the issuance and sale of the Shares have been duly and
validly authorized by all necessary corporate action on the part of the
Company and have received all requisite regulatory approvals; the Shares,
upon receipt of payment and issuance in
accordance with the terms of the Plan and this Agreement, will be validly
issued, fully paid, nonassessable, and, except as disclosed in the
Prospectus, free of preemptive rights, and good title thereto shall be
transferred by the Company to the purchasers free and clear of all claims,
encumbrances, security interests and liens created by the Company;
(vii) the certificates for the Common Stock are in due and
proper form and comply with applicable requirements of New York law and the
rules and regulations of the Banking Department;
(viii) 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 Banking
Department; 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 knowledge, beneficially
by the Company;
(ix) subject to the satisfaction of the conditions imposed in
the approvals of the Department Application and the Holding Company
Application, no further approval, authorization, consent, or other order of
any government board or body is required in connection with the execution
and delivery of this Agreement, and the consummation of the Reorganization,
except as may be required under the "blue sky" laws of various
jurisdictions;
(x) the execution and delivery of this Agreement and the
consummation of the of the transactions contemplated hereby have been duly
and validly authorized by all necessary corporate action on the part of
each of the Company, the MHC and the Bank; and this Agreement is a legal,
valid, and binding obligation of each of the Company, the MHC and the Bank,
enforceable in accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium, receivership,
conservatorship, or other laws affecting creditors' rights generally and as
my be limited by the exercise of judicial discretion in applying principles
of equity and except to the extent that the provisions of Sections 8 and 9
hereof may be unenforceable as against public policy or Section 23A;
(xi) Except as set forth in the Prospectus, there are no
material legal or governmental proceedings pending or, to our knowledge,
threatened (provided that for this purpose we do 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 us, a present intention to initiate such litigation or
proceeding) against or involving the assets of the Company, the MHC or the
Bank required to be disclosed in the Prospectus, nor are there any statutes
or regulations, and, to our knowledge, any contract or other documents
required to be described or disclosed in the Prospectus that are not so
described or disclosed; and the description in the Prospectus of such
statutes, regulations, contracts, and other documents therein described
are in all material respects accurate summaries and in all material
respects fairly present the information required to be shown;
(xii) the statements in the Prospectus under the captions
"Regulation," "Dividend Policy," "Restrictions on Acquisition of the Stock
Company and the Bank," and "Description of Capital Stock of the Stock
Company," 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; and the statements in the Prospectus under the
caption "Federal and State Taxation," insofar as they are, or refer to,
statements of federal law or legal conclusions based thereon (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;
(xiii) the Department Application has been approved by the
Banking Department, and the Prospectus has been authorized for use by the
Banking Department; the Registration Statement and any post-effective
amendment thereto have been declared effective by the Commission; except as
to any necessary qualifications or registration under the securities laws
of the jurisdictions in which the Shares were offered, no further approval
of any governmental authority is required for the issuance and sale of the
Shares (subject to the satisfaction of various conditions subsequent
imposed by the Banking Department in connection with their approval of the
Reorganization); the Banking Department and the Federal Reserve Board have
issued their orders of approval for the Company to acquire the Bank; and,
to our knowledge, no proceedings are pending by or before the Commission or
the Banking Department seeking to revoke or rescind the orders declaring
the Registration Statement effective or authorizing the Prospectus or the
Notice and Information Statement for use or, to our knowledge, are
contemplated or threatened (provided that for this purpose we do 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 us, a present intention to initiate such
litigation or proceeding);
(xiv) the execution and delivery of this Agreement, the
incurring of the obligations set forth herein, and the consummation of the
of the transactions contemplated hereby shall not conflict with or result
in a breach of the articles of incorporation, charter or bylaws of the
Company, the MHC or the Bank; nor to our knowledge, constitute a material
breach of or default (or an event which, with notice or lapse of time or
both, would constitute a default) under, or give rise to any right of
termination, cancellation, or acceleration contained in, or result in the
creation or imposition of any lien, charge, or other encumbrance upon any
of the properties or assets of the Company, the MHC 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, the MHC or the Bank is a party or by which it or its
assets or properties may be bound or is subject, or any governmental
license or permit (subject to the satisfaction of any post-Reorganization
conditions imposed by the Banking Department and/or the Federal Reserve
Board), which in any such event would have a Material Adverse Effect on the
Company, the MHC and the Bank, taken as a whole; nor will any such actions
violate any material law, administrative regulation or order, court order,
writ, injunction, or decree which breach, default, encumbrance, or
violation would have a Material Adverse Effect on the Company, the MHC and
the Bank, taken as a whole;
(xv) to our knowledge, there has been no material breach of the
Company's, the MHC's, or the Bank's articles or certificate of
incorporation, charter, or bylaws or a breach or default (or the occurrence
of any event which, with the lapse of time or action, or both, by a third
party, would result in a breach or default) under any agreement, contract,
indenture, bond, debenture, note, instrument, or obligation to which the
Company, the MHC or the Bank is party or by which any of them or their
respective assets or properties may be bound, or any governmental license
or permit, or a violation of any law, administrative regulation, or order,
court order, writ, injunction, or decree which breach or default would have
a Material Adverse Effect on the Company, the MHC and the Bank, taken as a
whole;
(xvi) the Department Application, the Holding Company
Application, the Registration Statement and the Prospectus (in each case as
amended or supplemented, if so amended or supplemented) comply as to form
in all material respects with the requirements of all applicable laws and
the rules, regulations, and, to our knowledge, all written and published
decisions and orders of the Banking Department, the Federal Reserve Board,
and the Commission, as the case may be (except as to financial statements,
notes to financial statements, financial tables, and other financial and
statistical data, including the appraisal, included therein, as to which no
opinion is expressed); to our knowledge, all documents and exhibits
required to be filed with the Department Application and the Registration
Statement have been so filed and the descriptions in the Department
Application, the Holding Company Application, and the Registration
Statement (in each case, as amended or supplemented, if so amended or
supplemented) of such documents and exhibits is in all material respects
accurate and complete and presents fairly the information required to be
shown; to our actual knowledge, there are no contracts or other documents
of a character required to be described that are not described, and there
are no statutes or regulations applicable to, certificates, permits, or
other authorizations from governmental regulatory officials or bodies
required to be obtained or maintained by, or legal or governmental
proceedings, past, pending, or threatened against the Company, the MHC or
the Bank of a character required to be disclosed in the Department
Application, the Holding Company Application, the Registration Statement or
the Prospectus that have not been so disclosed and properly described
therein; and
(xvii) to our knowledge, none of the Company, the MHC nor the
Bank is in violation of any directive from the Banking Department, the FDIC
or the Federal Reserve Board to make any change in the method of conducting
their respective businesses.
[Xxxx, Xxxxxx to insert conclusion]
EXHIBIT C
Letter of Luse, Lehman, Xxxxxx, Xxxxxxxx & Xxxxxx, P.C.
Required under Section 7(b) of the Sales Agency Agreement
---------------------------------------------------------
[Xxxx, Xxxxxx to insert introduction]
Based on such counsel's participation in conferences with
representatives of the Company, the Bank, its counsel, the independent
appraiser, the independent certified public accountants, Trident and its
counsel, review of documents and understanding of applicable law (including the
requirements of Form SB-2 and the character of the Registration Statement
contemplated thereby) and the experience such counsel has gained in its practice
under the Act, nothing has come to such counsel's attention that would lead it
to believe that the Registration Statement, as amended (except as to information
in respect of Trident contained therein and except as to the financial
statements, notes to financial statements, financial tables and other financial
and statistical data contained therein, as to which such counsel expresses no
opinion), at the time it became effective contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements made therein, in light of the circumstances
under which they were made, not misleading, or that the Prospectus, as amended
(except as to information in respect of Trident contained therein and except as
to financial statements, notes to financial statements, financial tables and
other financial and statistical data contained therein as to which such counsel
expresses no opinion), as of the date of the Prospectus and at the Closing Date,
contained any untrue statement of a material fact or omitted to state a material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading (in making this statement such
counsel may state that it has not undertaken to verify independently the
information in the Registration Statement or Prospectus and, therefore, does not
assume any responsibility for the accuracy or completeness thereof).
[Xxxx, Xxxxxx to insert conclusion]
