EXHIBIT 1.2
FORM OF AGENCY AGREEMENT
FIRST XXXXXXXX FINANCIAL CORPORATION
FIRST XXXXXXXX SAVINGS AND LOAN, F.A.
552,500 to 859,625 Shares
Common Stock
(Par Value $0.01 Per Share)
$10.00 Per Share
SALES AGENCY AGREEMENT
Trident Securities, Inc.
0000 Xxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Dear Sirs:
First Xxxxxxxx Financial Corporation, a Delaware-chartered corporation
(the "Company"), and First Xxxxxxxx Savings and Loan, F.A., a federally
chartered and insured mutual savings association (the "Association"), hereby
confirm, as of _________________, 1997, their respective agreements with Trident
Securities, Inc. ("Trident"), a broker-dealer registered with the Securities and
Exchange Commission ("Commission") and a member of the National Association of
Securities Dealers, Inc. ("NASD"), as follows:
1. Introductory. The Association intends to convert from a federally
chartered mutual savings association to a federally chartered stock savings
association as a wholly owned subsidiary of the Company (together with the
Offerings, as defined below, the issuance of shares of common stock of the
Association to the Company and the incorporation of the Company, the
"Conversion") pursuant to a plan of conversion adopted on November 12, 1996 (the
"Plan"). In accordance with the Plan, the Company is offering shares of its
common stock, par value $0.01 per share (the "Shares" and the "Common Stock"),
pursuant to nontransferable subscription rights in a subscription offering (the
"Subscription Offering") to certain depositors and borrowers of the Association,
to directors, officers and employees of the Association, and to the
Association's tax-qualified employee benefit plans (i.e., the Association's
Employee Stock Ownership Plan (the "ESOP")). Concurrently with, during or
promptly after the Subscription Offering, shares of the Common Stock not sold in
the Subscription Offering may be offered to the general public in a community
offering, with preference being given to natural persons residing in Xxxxxxxx
County, Illinois (the "Community Offering") (the Subscription and Community
Offerings are sometimes referred to collectively as the "Offerings"), subject to
the right of the Company and the Association, in their absolute discretion, to
reject orders in the Community Offering in whole or in part. In the Offerings,
the Company is offering between 552,500 and 747,500 Shares, with the possibility
of offering up to 859,625 Shares without a resolicitation of subscribers, as
contemplated by Title 12 of the Code of Federal Regulations, Part 563b. Except
for certain benefit plans, no person may purchase more than $65,000 of the
Shares issued in the Conversion and no person, together with associates of and
persons acting in concert with such person, may purchase in the aggregate more
than $100,000 of the Shares issued in the Conversion. The Plan also provides
that, following the Conversion, the Association will convert to a national bank.
Trident Securities, Inc.
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Page 2
The Company and the Association have been advised by Trident that it
will utilize its best efforts in assisting the Company and the Association with
the sale of the Shares in the Offerings and, if deemed necessary by the Company
in a syndicated public offering. Prior to the execution of this Agreement, the
Company has delivered to Trident the Prospectus dated _________________, 1997
(as hereinafter defined) and all supplements thereto to be used in the
Offerings. Such Prospectus contains information with respect to the Company, the
Association and the Shares.
2. Representations and Warranties.
(a) The Company and the Association jointly and severally
represent and warrant 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. 333-23625), including a Prospectus
relating to the Offerings, for the registration of the Shares
under the Securities Act of 1933, as amended (the "Act"); and
such registration statement has become effective under the Act
and no stop order has been issued with respect thereto and no
proceedings therefor have been initiated or, to the Company's
best knowledge, threatened by the Commission. Except as the
context may otherwise require, such registration statement, as
amended or supplemented, on file with the Commission at the
time the registration statement became effective, including
the Prospectus, financial statements, schedules, exhibits and
all other documents filed as part thereof, as amended and
supplemented, is herein called the "Registration Statement,"
and the prospectus, as amended or supplemented, on file with
the Commission at the time the Registration Statement became
effective is herein called the "Prospectus," except that if
the prospectus filed by the Company with the Commission
pursuant to Rule 424(b) of the general rules and regulations
of the Commission under the Act (together with the enforceable
published policies and actions of the Commission thereunder,
the "SEC Regulations") differs from the form of prospectus on
file at the time the Registration Statement became effective,
the term "Prospectus" shall refer to the Rule 424(b)
prospectus from and after the time it is filed with or mailed
for filing to the Commission and shall include any amendments
or supplements thereto from and after their dates of
effectiveness or use, respectively. If any Shares remain
unsubscribed following completion of the Subscription Offering
and, if any, the Community Offering, the Company (i) will
promptly file with the Commission a post-effective amendment
to such Registration Statement relating to the results of the
Subscription Offering and, if any, the Community Offering, any
additional information with respect to the proposed plan of
distribution and any revised pricing information or (ii) if no
such post-effective amendment is required, will file with, or
mail for filing to, the
Trident Securities, Inc.
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Page 3
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 Regulations, in either case in a form
reasonably acceptable to the Company and Trident.
(ii) The Association has filed an Application for
Approval of Conversion on Form AC, including exhibits (as
amended or supplemented, the "Form AC" and together with the
Form H-(e)1-S referred to below, the "Conversion Application")
with the Office of Thrift Supervision (the "Office") under the
Home Owners' Loan Act, as amended (the "HOLA") and the
enforceable rules and regulations, including published
policies and actions, of the Office thereunder (the "OTS
Regulations"), which has been approved by the Office; and the
Prospectus and the proxy statement for the solicitation of
proxies from members for the special meeting to approve the
Plan (the "Proxy Statement") included as part of the Form AC
have been approved for use by the Office. No order has been
issued by the Office preventing or suspending the use of the
Prospectus or the Proxy Statement; and no action by or before
the Office revoking such approvals is pending or, to the
Association's best knowledge, threatened. The Company has
filed with the Office the Company's application on Form
H-(e)1-S promulgated under the savings and loan holding
company provisions of the Home Owners' Loan Act and the
regulations promulgated thereunder ("HOLA") and has received
approval of its acquisition of the Association from the
Office.
(iii) At the date of the Prospectus and at all times
subsequent thereto through and including the Closing Date (i)
the Registration Statement and the Prospectus (as amended or
supplemented, if amended or supplemented) complied with the
Act and the SEC Regulations, (ii) the Registration Statement
(as amended or supplemented, if amended or supplemented) did
not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and
(iii) the Prospectus (as amended or supplemented, if amended
or supplemented) did not contain any untrue statement of a
material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not
misleading. Representations or warranties in this subsection
shall not apply to statements or omissions made in reliance
upon and in conformity with written information furnished to
the Company or the Association relating to Trident by or on
behalf of Trident expressly for use in the Registration
Statement or Prospectus.
Trident Securities, Inc.
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(iv) The Company has been duly incorporated and is in
good standing as a Delaware corporation, and the Association
has been duly organized and has a corporate existence as a
mutual savings association under the laws of the United
States, and each of them 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
Association is a member in good standing of the Federal Home
Loan Bank of Chicago; and the deposit accounts of the
Association are insured by the Savings Association Insurance
Fund ("SAIF") administered by the Federal Deposit Insurance
Corporation ("FDIC") up to the applicable legal limits. Each
of the Company and the Association is not required to be
qualified to do business as a foreign corporation in any
jurisdiction where non-qualification would have a material
adverse effect on the Company and the Association, taken as a
whole. The Association does not own equity securities of or an
equity interest in any business enterprise except as described
in the Prospectus. Upon amendment of the Association's charter
and bylaws as provided in the rules and regulations of the
Office and completion of the sale by the Company of the Shares
as contemplated by the Prospectus, (i) the Association will be
converted pursuant to the Plan to a federally chartered
capital stock savings association with full power and
authority to own its property and conduct its business as
described in the Prospectus, (ii) all of the authorized and
outstanding capital stock of the Association will be owned of
record and beneficially by the Company, and (iii) the Company
will have no direct subsidiaries other than the Association.
(v) The Association has good, marketable and
insurable title to all assets material to its business and to
those assets described in the Prospectus as owned by it, free
and clear of all material liens, charges, encumbrances or
restrictions, except for liens for taxes not yet due, except
as described in the Prospectus and except as could not in the
aggregate have a material adverse effect upon the operations
or financial condition of the Association; and all of the
leases and subleases material to the operations or financial
condition of the Association, under which it holds properties,
including those described in the Prospectus, are in full force
and effect as described therein.
(vi) The execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby have
been duly and validly authorized by all necessary actions on
the part of each of the Company and the Association, and this
Agreement is a valid and binding obligation with valid
execution and delivery of each of the Company and the
Association, 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
Trident Securities, Inc.
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creditors of savings and loan holding companies the accounts
of whose subsidiaries are insured by the FDIC or by general
equity principles, regardless of whether such enforceability
is considered in a proceeding in equity or at law, and except
to the extent that the provisions of Sections 8 and 9 hereof
may be unenforceable as against public policy or pursuant to
Sections 23A or 23B of the Federal Reserve Act, 12 U.S.C.
Sections 371c ("Section 23A" or 371c-1 ("Section 23B")).
(vii) There is no litigation or governmental
proceeding pending or, to the best knowledge of the Company or
the Association, threatened against or involving the Company,
the Association, or any of their respective assets which
individually or in the aggregate would reasonably be expected
to have a material adverse effect on the condition (financial
or otherwise), results of operations and business, including
the assets and properties, of the Company and the Association,
taken as a whole.
(viii) The Company and the Association have received
the opinions of Silver, Xxxxxxxx & Taff, L.L.P. with respect
to federal tax consequences of the Conversion, and of Larsson,
Xxxxxxxx & Xxxxxx, LLP with respect to the Illinois tax
consequences of the Conversion, to the effect that the
Conversion will constitute a tax-free reorganization under the
Internal Revenue Code of 1986, as amended, and will not be a
taxable transaction for the Association or the Company under
the laws of Illinois, and the facts relied upon in such
opinions are accurate and complete.
(ix) Each of the Company and the Association has all
such corporate power, authority, authorizations, approvals and
orders as may be required to enter into this Agreement and to
carry out the provisions and conditions hereof, subject to the
limitations set forth herein and subject to the satisfaction
of certain conditions imposed by the Office in connection with
its approvals of the Form AC and the Application H-(e)1-S, and
except as may be required under the securities, or "blue sky,"
laws of various jurisdictions, and in the case of the Company,
as of the Closing Date, will have such approvals and orders to
issue and sell the Shares to be sold by the Company as
provided herein, and in the case of the Association, as of the
Closing Date, will have such approvals and orders to issue and
sell the Shares of its Common Stock to be sold to the Company
as provided in the Plan, subject to the issuance of amended
charter in the form required for federally chartered stock
savings associations (the "Stock Charter"), the form of which
Stock Charter has been approved by the Office.
(x) To the best of its knowledge, neither the Company
nor the Association is in violation of any rule or regulation
of the Office or the FDIC that
Trident Securities, Inc.
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could reasonably be expected to result in any enforcement
action against the Company, the Association, or their officers
or directors that might have a material adverse effect on the
financial condition, operations, businesses, assets or
properties of the Company and the Association, taken as a
whole.
(xi) The consolidated financial statements and any
related notes or schedules which are included in the
Registration Statement and the Prospectus fairly present the
consolidated financial condition, income, retained earnings
and cash flows of the Association at the respective dates
thereof and for the respective periods covered thereby and
comply as to form with the applicable accounting requirements
of the Regulations and the applicable accounting regulations
of the Office. Such financial statements have been prepared in
accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except
as set forth therein, and such financial statements are
consistent with financial statements and other reports filed
by the Association with supervisory and regulatory authorities
except as such generally accepted accounting principles may
otherwise require. The tables in the Prospectus accurately
present the information purported to be shown thereby at the
respective dates thereof and for the respective periods
therein.
(xii) There has been no material change in the
financial condition, results of operations or business,
including assets and properties, of the Company and the
Association, taken as a whole, since the latest date as of
which such condition is set forth in the Prospectus, except as
set forth therein; and the capitalization, assets, properties
and business of each of the Company and the Association
conform to the descriptions thereof contained in the
Prospectus. None of the Company nor the Association has any
material liabilities of any kind, contingent or otherwise,
except as set forth in the Prospectus.
(xiii) There has been no breach or default (or the
occurrence of any event which, with notice or lapse of time or
both, would constitute a default) under, or creation or
imposition of any lien, charge or other encumbrance upon any
of the properties or assets of the Company and the Association
pursuant to any of the terms, provisions or conditions of, any
agreement, contract, indenture, bond, debenture, note,
instrument or obligation to which the Company or the
Association is a party or by which any of them or any of their
respective assets or properties may be bound or is subject, or
violation of any governmental license or permit or any
enforceable published law, administrative regulation or order
or court order, writ, injunction or decree, which breach,
default, encumbrance or violation would have a material
adverse effect on the financial condition, operations,
business, assets or properties of the Company and the
Association taken as a whole; all agreements which are
material to the financial condition,
Trident Securities, Inc.
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results of operations or business of the Company and the
Association taken as a whole are in full force and effect, and
no party to any such agreement has instituted or, to the best
knowledge of the Company and the Association, threatened any
action or proceeding wherein the Company or the Association
would be alleged to be in default thereunder.
(xiv) None of the Company or the Association is in
violation of its respective charter or bylaws. The execution
and delivery hereof and the consummation of the transactions
contemplated hereby by the Company and the Association do not
conflict with or result in a breach of the charter or bylaws
of the Company or the Association (in either mutual or stock
form) or constitute a material breach of or default (or an
event which, with notice or lapse of time or both, would
constitute a default) under, give rise to any right of
termination, cancellation or acceleration contained in, or
result in the creation or imposition of any lien, charge or
other encumbrance upon any of the properties or assets of the
Company or the Association pursuant to any of the terms,
provisions or conditions of, any material agreement, contract,
indenture, bond, debenture, note, instrument or obligation to
which the Company or the Association is a party or violate any
governmental license or permit or any enforceable published
law, administrative regulation or order or court order, writ,
injunction or decree (subject to the satisfaction of certain
conditions imposed by the Office in connection with its
approval of the Conversion Application), which breach,
default, encumbrance or violation would have a material
adverse effect on the financial condition, operations or
business of the Company and the Association taken as a whole.
(xv) Subsequent to the respective dates as of which
information is given in the Registration Statement and
Prospectus and prior to the Closing Date (as hereinafter
defined), except as otherwise may be indicated or contemplated
therein, none of the Company or the Association has issued any
securities which will remain issued at the Closing Date or
incurred any liability or obligation, direct or contingent, or
borrowed money, except borrowings in the ordinary course of
business, or entered into any other transaction not in the
ordinary course of business and consistent with prior
practices, which is material in light of the business of the
Company and the Association, taken as a whole.
(xvi) Upon consummation of the Conversion, the
authorized, issued and outstanding equity capital of the
Company shall be within the range as set forth in the
Prospectus under the caption "Capitalization," and no Common
Stock of the Company shall be outstanding immediately prior to
the Closing Date; the issuance and the sale of the Shares of
the Company have been duly authorized by all necessary action
of the Company and approved by the Office and, when issued
Trident Securities, Inc.
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in accordance with the terms of the Plan and paid for, shall
be validly issued, fully paid and nonassessable and shall
conform to the description thereof contained in the
Prospectus; the issuance of the Shares is not subject to
preemptive rights, except as set forth in the Prospectus; and
good title to the Shares will be transferred by the Company
upon issuance thereof against payment therefor, free and clear
of all claims, encumbrances, security interests and liens
against the Company whatsoever. The certificates representing
the Shares will conform in all material respects with the
requirements of applicable laws and regulations. The issuance
and sale of the capital stock of the Association to the
Company has been duly authorized by all necessary action of
the Association and the Company and appropriate regulatory
authorities (subject to the satisfaction of various conditions
imposed by the Office in connection with its approval of the
Conversion Application), and such capital stock, when issued
in accordance with the terms of the Plan, will be fully paid
and nonassessable and will conform in all material respects to
the description thereof contained in the Prospectus.
(xvii) No approval of any regulatory or supervisory
or other public authority is required in connection with the
execution and delivery of this Agreement or the issuance of
the Shares, except for the declaration of effectiveness of any
required post-effective amendment by the Commission and
approval thereof by the Office and approval of the Company's
application on Form H-(e)1-S by the Office, the issuance of
the Stock Charter by the Office and as may be required under
the securities laws of various jurisdictions.
(xviii) All material contracts and other documents
required to be filed as exhibits to the Registration Statement
or the Conversion Application have been filed with the
Commission and/or the Office, as the case may be.
(xix) Larsson, Xxxxxxxx & Xxxxxx, LLP, which has
audited the financial statements of the Association at October
31, 1996 and 1995 and for the years ended October 31, 1996,
1995 and 1994 included in the Prospectus, is an independent
public accountant within the meaning of the Code of
Professional Ethics of the American Institute of Certified
Public Accountants and Title 12 of the Code of Federal
Regulations, Section 571.2(c)(3).
(xx) For the past five years, the Company and the
Association have timely filed all required federal, state and
local franchise tax returns, and no deficiency has been
asserted with respect to such returns by any taxing
authorities, and the Company and the Association have paid all
taxes that have become due and, to the best of their
knowledge, have made adequate reserves for similar future tax
liabilities, except where any failure to make such filings,
payments and reserves, or the assertion of such a deficiency,
would not have a
Trident Securities, Inc.
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material adverse effect on the condition of the Company and
the Association taken as a whole.
(xxi) All of the loans represented as assets of the
Association on the most recent financial statements of the
Association included in the Prospectus meet or are exempt from
all requirements of federal, state or local law pertaining to
lending, including without limitation truth in lending
(including the requirements of Regulation Z and 12 C.F.R. Part
226 and Section 563.99), real estate settlement procedures,
consumer credit protection, equal credit opportunity and all
disclosure laws applicable to such loans, except for
violations which, if asserted, would not have a material
adverse effect on the Company and the Association taken as a
whole.
(xxii) The records of account holders, depositors,
borrowers and other members of the Association delivered to
Trident by the Association or its agent for use during the
Conversion have been prepared or reviewed by the Association
and, to the best knowledge of the Company and the Association,
are reliable and accurate.
(xxiii) To the knowledge of the Company and the
Association, none of the Company, the Association nor
directors or employees of the Company or the Association have
made any payment of funds of the Company or the Association as
a loan to any person other than the Employee Stock Ownership
Plan Trust for the purchase of the Shares.
(xxiv) To the best knowledge of the Company and the
Association, the Company and the Association are in compliance
with all laws, rules and regulations relating to the
discharge, storage, handling and disposal of hazardous or
toxic substances, pollutants or contaminants and neither the
Company nor the Association believes that the Company or the
Association is subject to liability under the Comprehensive
Environmental Response, Compensation and Liability Act of
1980, as amended, or any similar law, except for violations
which, if asserted, would not have a material adverse effect
on the Company and the Association, taken as a whole. There
are no actions, suits, regulatory investigations or other
proceedings pending or, to the best knowledge of the Company
or the Association, threatened against the Company or the
Association relating to the discharge, storage, handling and
disposal of hazardous or toxic substances, pollutants or
contaminants. To the best knowledge of the Company and the
Association, no disposal, release or discharge of hazardous or
toxic substances, pollutants or contaminants, including
petroleum and gas products, as any of such terms may be
defined under federal, state or local law, has been caused by
the Company or the Association or, to the best knowledge of
the
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Company or the Association, has occurred on, in or at any of
the facilities or properties of the Company or the
Association, except such disposal, release or discharge which
would not have a material adverse effect on the Company and
the Association, taken as a whole.
(xxv) At the Closing Date, the Company and the
Association will have completed the conditions precedent to,
and shall have conducted the Conversion in all material
respects in accordance with, the Plan, the OTS Regulations and
all other applicable laws, regulations, published decisions
and orders, including all terms, conditions, requirements and
provisions precedent to the Conversion imposed by the Office.
(b) Trident represents and warrants to the Company and
the Association 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 North Carolina, with full
corporate power and authority to provide the services to be
furnished to the Company and the Association 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 or Section 23B).
(iv) Each of Trident and, to Trident's knowledge, its
employees, agents and representatives who shall perform any of
the services required hereunder to be performed by Trident
shall be duly authorized and shall have all licenses,
approvals and permits necessary to perform such services, and
Trident is a registered selling agent in the jurisdictions
listed in Exhibit A hereto and will remain registered in such
jurisdictions in which the Company is relying on such
registration for the sale of the Shares, until the Conversion
is consummated or terminated.
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(v) The execution and delivery of this Agreement by
Trident, the fulfillment of the terms set forth herein and the
consummation of the transactions contemplated hereby shall not
violate or conflict with the corporate charter or bylaws of
Trident or violate, conflict with or constitute a breach of,
or default (or an event which, with notice or lapse of time,
or both, would constitute a default) under, any material
agreement, indenture or other instrument by which Trident is
bound or under any governmental license or permit or any law,
administrative regulation, authorization, approval or order or
court decree, injunction or order.
(vi) Any funds received by Trident to purchase Common
Stock will be handled in accordance with Rule 15c2-4 under the
Securities Exchange Act of 1934, as amended (the "Exchange
Act").
(vii) There is not now pending or, to Trident's
knowledge, threatened against Trident any action or proceeding
before the Commission, the NASD, any state securities
commission or any state or federal court concerning Trident's
activities as a broker-dealer.
3. Employment of Trident; Sale and Delivery of the Shares. On the basis
of the representations and warranties herein contained, but subject to the terms
and conditions herein set forth, the Company and the Association hereby employ
Trident as their agent to utilize its best efforts in assisting the Company with
the Company's sale of the Shares in the Subscription Offering and Community
Offering. The employment of Trident hereunder shall terminate (a) forty-five
(45) days after the Subscription and Community Offering closes, unless the
Company and the Association, with the approval of the Office, are permitted to
extend such period of time, or (b) upon consummation of the Conversion,
whichever date shall first occur.
In the event the Company is unable to sell a minimum of 552,500 Shares
(or such lesser amount as the Office may permit) within the period herein
provided, this Agreement shall terminate, and the Company and the Association
shall refund promptly to any persons who have subscribed for any of the Shares,
the full amount which it may have received from them, together with interest as
provided in the Prospectus, and no party to this Agreement shall have any
obligation to the other party hereunder, except as set forth in Sections 6, 8(a)
and 9 hereof. Appropriate arrangements for placing the funds received from
subscriptions for Shares in special interest-bearing accounts with the
Association until all Shares are sold and paid for were made prior to the
commencement of the Subscription and Community Offering, with provision for
prompt refund to the purchasers as set forth above, or for delivery to the
Company if all Shares are sold.
If all conditions precedent to the consummation of the Conversion are
satisfied, including the sale of all Shares required by the Plan to be sold, the
Company agrees to issue or have issued such Shares and to release for delivery
certificates to subscribers thereof for such Shares
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on the Closing Date against payment to the Company by any means authorized
pursuant to the Prospectus, at the principal office of the Company at 000 Xxxx
Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx or at such other place as shall be agreed upon
between the parties hereto. The date upon which Trident is paid the compensation
due hereunder is herein called the "Closing Date."
Trident agrees either (a) upon receipt of an executed order form of a
subscriber to forward the offering price of the Common Stock ordered on or
before twelve noon on the next business day following receipt or execution of an
order form by Trident to the Association for deposit in a segregated account or
(b) to solicit indications of interest in which event (i) Trident will
subsequently contact any potential subscriber indicating interest to confirm the
interest and give instructions to execute and return an order form or to receive
authorization to execute the order form on the subscriber's behalf, (ii) Trident
will mail acknowledgements of receipt of orders to each subscriber confirming
interest on the business day following such confirmation, (iii) Trident will
debit accounts of such subscribers on the third business day ("debit date")
following receipt of the confirmation referred to in (i), and (iv) Trident will
forward completed order forms together with such funds to the Association on or
before twelve noon on the next business day following the debit date for deposit
in a segregated account. Trident acknowledges that if the procedure in (b) is
adopted, subscribers' funds are not required to be in their accounts until the
debit date.
In addition to the expenses specified in Section 6 hereof, Trident
shall receive the following compensation for its services hereunder:
(a) A commission equal to 1.70% of the aggregate dollar amount
of Common Stock sold to investors who reside in Xxxxxxxx County,
Illinois, a commission equal to 1.45% on sales to investors residing in
contiguous Illinois counties, a commission equal to 1.20% on sales to
investors residing in other Illinois counties and a commission equal to
0.95% on sales to investors residing outside the state of Illinois. All
such fees are to be payable in next-day funds to Trident on the Closing
Date. No commissions shall be payable on shares purchased by officers,
directors, employees or their associates or employee plans. Further,
all commissions shall be based on the amount of stock sold; however,
for the purpose of calculating Trident's commission, it shall be
assumed that the amount of stock sold shall not be in excess of the
midpoint of the appraised value as stated in the Prospectus.
(b) For stock sold by other NASD member firms under selected
dealer's agreements, the commission shall not exceed a fee to be agreed
upon jointly by Trident and the Association to reflect market
requirements at the time of the stock allocation in a Syndicated Public
Offering.
(c) Trident shall be reimbursed for allocable expenses,
incurred by it whether or not the Offerings are successfully completed;
provided, however, that reimbursable
Trident Securities, Inc.
Sales Agency Agreement
Page 13
legal fees (non "Blue Sky" related matters) will not exceed $24,000 and
reimbursable legal fees for "Blue Sky" matters will not exceed $6,000,
that other reimbursable expenses will not exceed $8,500 and that
neither the Company nor the Association shall pay or reimburse Trident
for any of the foregoing expenses accrued after Trident shall have
notified the Company or the Association of its election to terminate
this Agreement pursuant to Section 11 hereof or after such time as the
Company or the Association 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 Conversion is not
completed and is terminated for any reason, within ten (10) business
days of receipt by the Company of a written request from Trident for
reimbursement of its expenses. Trident acknowledges receipt of $8,500
advance payment from the Association which shall be credited against
the total reimbursement due Trident hereunder.
(d) Notwithstanding the limitations on reimbursement of
Trident for allocable expenses provided in the immediately preceding
paragraph (b), in the event that a resolicitation or other event causes
the Offerings to be extended beyond their original expiration date,
Trident shall be reimbursed for its allocable expenses incurred during
such extended period, provided that the allowance for allocable
expenses provided for in the immediately preceding paragraph (b) above
have been exhausted and subject to the following. Such reimbursement
shall be in amount equal to the product obtained by dividing $8,500
(original out-of-pocket expenses) by the total number of days of the
unextended Subscription Offering (calculated from the date of the
Prospectus to the intended close of the Subscription Offering as stated
in the Prospectus) and multiplying such product by the number of days
of the extension (that number of days from the date of the supplemental
prospectus used in the extended Subscription Offering to the closing of
the extension of the Subscription Offering described in such
supplemental prospectus).
The Company shall pay any stock issue and transfer taxes which may be
payable with respect to the sale of the Shares. The Company and the Association
shall also pay all expenses of the Conversion incurred by them or on their prior
approval including but not limited to their attorneys' fees, NASD filing fees,
and attorneys' fees relating to any required state securities laws research and
filings, telephone charges, air freight, rental equipment, supplies, transfer
agent charges, fees relating to auditing and accounting and costs of printing
all documents necessary in connection with the Conversion.
4. Offering. Subject to the provisions of Section 7 hereof, Trident is
assisting the Company on a best efforts basis in offering a minimum of 552,500
and a maximum of 747,500 Shares, with the possibility of offering up to 859,625
Shares (except as the Office may permit to be decreased or increased) in the
Subscription and Community Offerings. The Shares are to be offered to the public
at the price set forth on the cover page of the Prospectus and the first page of
this Agreement.
Trident Securities, Inc.
Sales Agency Agreement
Page 14
5. Further Agreements. The Company and the Association jointly and
severally covenant and agree that:
(a) The Company shall deliver to Trident, from time to time,
such number of copies of the Prospectus as Trident reasonably may
request. The Company authorizes Trident to use the Prospectus in any
lawful manner in connection with the offer and sale of the Shares.
(b) The Company will notify Trident immediately upon
discovery, and confirm the notice in writing, (i) when any
post-effective amendment to the Registration Statement becomes
effective or any supplement to the Prospectus has been filed, (ii) of
the issuance by the Commission of any stop order relating to the
Registration Statement or of the initiation or the threat of any
proceedings for that purpose, (iii) of the receipt of any notice with
respect to the suspension of the qualification of the Shares for
offering or sale in any jurisdiction, and (iv) of the receipt of any
comments from the staff of the Commission relating to the Registration
Statement. If the Commission enters a stop order relating to the
Registration Statement at any time, the Company will make every
reasonable effort to obtain the lifting of such order at the earliest
possible moment.
(c) During the time when a prospectus is required to be
delivered under the Act, the Company will comply so far as it is able
with all requirements imposed upon it by the Act, as now in effect and
hereafter amended, and by the Regulations, as from time to time in
force, so far as necessary to permit the continuance of offers and
sales of or dealings in the Shares in accordance with the provisions
hereof and the Prospectus. If during the period when the Prospectus is
required to be delivered in connection with the offer and sale of the
Shares any event relating to or affecting the Company and the
Association, taken as a whole, shall occur as a result of which it is
necessary, in the opinion of counsel for Trident, with the concurrence
of counsel to the Company, to amend or supplement the Prospectus in
order to make the Prospectus not false or misleading in light of the
circumstances existing at the time it is delivered to a purchaser of
the Shares, the Company forthwith shall prepare and furnish to Trident
a reasonable number of copies of an amendment or amendments or of a
supplement or supplements to the Prospectus (in form and substance
satisfactory to counsel for Trident) which shall amend or supplement
the Prospectus so that, as amended or supplemented, the Prospectus
shall not contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in light of the circumstances existing at the time the
Prospectus is delivered to a purchaser of the Shares, not misleading.
The Company will not file or use any amendment or supplement to the
Registration Statement or the Prospectus of which Trident has not first
been furnished a copy or to which Trident shall reasonably object after
having been furnished such copy. For the purposes of this subsection
the Company and the Association shall furnish such information with
respect to themselves as Trident from time to time may reasonably
request.
Trident Securities, Inc.
Sales Agency Agreement
Page 15
(d) The Company and the Association 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 Association sufficient to establish a liquidation account for
the benefit of eligible account holders as of October 31, 1995 and
supplemental eligible account holders as of March 31, 1997 in
accordance with the requirements of the Office.
(f) The Company will file a registration statement for the
Common Stock under Section 12(g) of the Exchange Act, prior to
completion of the stock offering pursuant to the Plan and shall request
that such registration statement be effective upon completion of the
Conversion. The Company shall maintain the effectiveness of such
registration for a minimum period of three years or for such shorter
period as may be required by applicable law.
(g) The Company will make generally available to its security
holders as soon as practicable, but not later than 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 said Rule 158) of the Registration
Statement.
(h) For a period of three (3) years from the date of this
Agreement (unless the Common Stock shall have been deregistered under
the Exchange Act), the Company will furnish to Trident, as soon as
publicly available after the end of each fiscal year, a copy of its
annual report to shareholders for such year; and the Company will
furnish to Trident (i) as soon as publicly available, a copy of each
report or definitive proxy statement of the Company filed with the
Commission under the Exchange Act or mailed to shareholders, and (ii)
from time to time, such other public information concerning the Company
as Trident may reasonably request.
(i) The Company shall use the net proceeds from the sale of
the Shares consistently with the manner set forth in the Prospectus.
Trident Securities, Inc.
Sales Agency Agreement
Page 16
(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 by Trident.
(k) The Company shall advise Trident, if necessary, as to the
allocation of deposits, in the case of eligible account holders and
supplemental eligible account holders and votes, in the case of other
members, and of the Shares in the event of an oversubscription and
shall provide Trident final instructions as to the allocation of the
Shares ("Allocation Instructions") in such event and such information
shall be accurate and reliable. Trident shall be entitled to rely on
such instructions and shall have no liability in respect of its
reasonable reliance thereon, including without limitation, no liability
for or related to any denial or grant of a subscription in whole or in
part.
(l) The Company and the Association will take such actions and
furnish such information as are reasonably requested by Trident in
order for Trident to ensure compliance with the NASD's "Interpretation
Relating to Free-Riding and Withholding."
6. Payment of Expenses. Whether or not the Conversion is consummated,
the Company and the Association shall pay or reimburse Trident for (a) all
filing fees paid or incurred by Trident in connection with all filings with the
NASD with respect to the Subscription and Community Offerings and, (b) in
addition, if the Company is unable to sell a minimum of 552,500 Shares or such
lesser amount as the Office may permit or the Conversion is otherwise
terminated, the Company and the Association shall reimburse Trident for
allocable expenses incurred by Trident relating to the offering of the Shares as
provided in Section 3 hereof; provided, however, that neither the Company nor
the Association shall pay or reimburse Trident for any of the foregoing expenses
accrued after Trident shall have notified the Company or the Association of its
election to terminate this Agreement pursuant to Section 11 hereof or after such
time as the Company or the Association 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
and the Association of their obligations hereunder and to the following
conditions:
(a) At the Closing Date, Trident shall receive the favorable
opinions of Silver, Xxxxxxxx & Xxxx, L.L.P., special counsel for the
Company and the Association, and ______________________________________
________________________, counsel to the Association, dated the Closing
Date, addressed to Trident, in form and substance reasonably
satisfactory to counsel for Trident substantially as set forth in
Exhibits B and C, respectively, hereto:
Trident Securities, Inc.
Sales Agency Agreement
Page 17
In rendering such opinions, such counsel may rely as to
matters of fact on certificates of officers and directors of the
Company and the Association and certificates of public officials
delivered pursuant hereto. Such counsel may assume that any agreement
is the valid and binding obligation of any parties to such agreement
other than the Company and the Association. Such opinions 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 opinions, 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 and the Association of this Agreement or the
issuance of the Shares.
(b) At the Closing Date, Trident shall receive the letters of
Silver, Xxxxxxxx & Taff, L.L.P., special counsel for the Company and
the Association, dated the Closing Date, addressed to Trident, in form
and substance reasonably satisfactory to counsel for Trident
substantially as set forth in Exhibit D, hereto:
(c) Counsel for Trident shall have been furnished such
documents as they reasonably may require for the purpose of enabling
them to review or pass upon the matters required by Trident, and for
the purpose of evidencing the accuracy, completeness or satisfaction of
any of the representations, warranties or conditions herein contained,
including but not limited to, resolutions of the Board of Directors of
the Company and the Association 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
and the Association, 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 and the Association after the latest date as of which the
financial condition of the Company or the Association is set forth in
the Prospectus other than transactions referred to or contemplated
therein, transactions in the ordinary course of business, and
transactions which are not material to the Company and the Association,
taken as a whole; (iii) none of the Company or the Association shall
have received from the Office or Commission any direction (oral or
written) to make any change in the method of conducting their
respective businesses
Trident Securities, Inc.
Sales Agency Agreement
Page 18
which is material to the business of the Company and the Association,
taken as a whole, with which they have not complied; (iv) no action,
suit or proceeding, at law or in equity or before or by any federal or
state commission, board or other administrative agency, shall be
pending or threatened against the Company or the Association or
affecting any of their respective assets, wherein an unfavorable
decision, ruling or finding would have a material adverse effect on the
business, operations, financial condition or income of the Company and
the Association, 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 and the Association, dated the Closing Date, to
the effect that: (i) they have examined the Prospectus and, at the time
the Prospectus became authorized by the Company for use, the Prospectus
did not contain an untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading
with respect to the Company or the Association; (ii) since the date the
Prospectus became authorized by the Company for use, no event has
occurred which should have been set forth in an amendment or supplement
to the Prospectus which has not been so set forth, including
specifically, but without limitation, any material change in the
business, financial condition or results of operations of the Company
or the Association and, the conditions set forth in clauses (ii)
through (iv) inclusive of subsection (d) of this Section 7 have been
satisfied; (iii) to the best knowledge of such officers, no order has
been issued by the Commission or the Office to suspend the 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 or the Office; (iv) to the best knowledge
of such officers, no person has sought to obtain review of the final
actions of the Office and division approving the Plan; and (v) all of
the representations and warranties contained in Section 2 of this
Agreement are true and correct, with the same force and effect as
though expressly made on the Closing Date.
(f) At the Closing Date, Trident shall receive, among other
documents, (i) copies of the letters from the Office authorizing the
use of the Prospectus and the Proxy Statement, (ii) a copy of the order
of the Commission declaring the Registration Statement effective; (iii)
copies of the letters from the Office evidencing the corporate
existence of the Association; (iv) a copy of the letter from the
appropriate Delaware authority evidencing the incorporation (and, if
generally available from such authority, good standing) of the Company;
(v) a copy of the Company's corporate charter certified by the
appropriate Delaware governmental authority; and, (vi) if available, a
copy of the letter from the Office approving the Association's Stock
Charter.
Trident Securities, Inc.
Sales Agency Agreement
Page 19
(g) As soon as available after the Closing Date, Trident shall
receive a copy of the Association's certified Federal Stock Charter
executed by the appropriate federal governmental authority.
(h) Concurrently with the execution of this Agreement, Trident
acknowledges receipt of a letter from Larsson, Xxxxxxxx & Xxxxxx, LLP,
independent certified public accountants, addressed to Trident and the
Company, in substance and form satisfactory to counsel for Trident,
with respect to the financial statements and certain financial
information contained in the Prospectus.
(i) At the Closing Date, Trident shall receive a letter in
form and substance satisfactory to counsel for Trident from Larsson,
Xxxxxxxx & Xxxxxx, LLP, independent certified public accountants, dated
the Closing Date and addressed to Trident and the Company, confirming
the statements made by them in the letter delivered by them pursuant to
the preceding subsection as of a specified date not more than five (5)
days prior to the Closing Date.
All such opinions, certificates, letters and documents shall be in
compliance with the provisions hereof only if they are, in the reasonable
opinion of Trident and its counsel, satisfactory to Trident and its counsel. Any
certificates signed by an officer or director of the Company or the Association
prepared for Trident's reliance and delivered to Trident or to counsel for
Trident shall be deemed a representation and warranty by the Company and the
Association 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 and the Association shall reimburse Trident for its
expenses as provided in Section 3(b) hereof.
8. Indemnification.
(a) The Company and the Association jointly and severally
agree to indemnify and hold harmless Trident, its officers, directors
and employees and each person, if any, who controls Trident within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act,
against any and all loss, liability, claim, damage and expense
whatsoever and shall further promptly reimburse such persons for any
legal or other expenses reasonably incurred by each or any of them in
investigating, preparing to defend or defending against any such
action, proceeding or claim (whether commenced or threatened) arising
out of or based upon (A) any misrepresentation by the Company or the
Association in this Agreement or any breach of warranty by the Company
or the Association 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
Trident Securities, Inc.
Sales Agency Agreement
Page 20
material fact required to be stated or necessary to make not misleading
any statements contained in (i) the Registration Statement or the
Prospectus or (ii) any application (including the Form AC and the Form
H-(e)1-S) or other document or communication (in this Section 8
collectively called "Application") prepared or executed by or on behalf
of the Company or the Association or based upon written information
furnished by or on behalf of the Company or the Association, whether or
not filed in any jurisdiction, to effect the Conversion or qualify the
Shares under the securities laws thereof or filed with the Office or
Commission, unless such statement or omission was made in reliance upon
and in conformity with written information furnished to the Company or
the Association with respect to Trident by or on behalf of Trident
expressly for use in the Prospectus or any amendment or supplement
thereof or in any Application, as the case may be, or (B) the
participation by Trident in the Conversion. This indemnity shall be in
addition to any liability the Company and the Association may have to
Trident otherwise.
(b) The Company shall indemnify and hold Trident harmless for
any liability whatsoever arising out of (i) the Allocation Instructions
or (ii) any records of account holders, depositors, borrowers and other
members of the Association delivered to Trident by the Association or
its agents for use during the Conversion.
(c) Trident agrees to indemnify and hold harmless the Company
and the Association, their officers, directors and employees and each
person, if any, who controls the Company and the Association within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act,
to the same extent as the foregoing indemnity from the Company and the
Association to Trident, but only with respect to (A) statements or
omissions, if any, made in the Prospectus or any amendment or
supplement thereof, in any Application or to a purchaser of the Shares
in reliance upon, and in conformity with, written information furnished
to the Company or the Association with respect to Trident by or on
behalf of Trident expressly for use in the Prospectus or in any
Application; (B) any misrepresentation by Trident in Section 2(b) of
this Agreement; or (C) any liability of the Company or the Association
which is found in a final judgment by a court of competent jurisdiction
(not subject to further appeal) to have principally and directly
resulted from gross negligence or willful misconduct of Trident.
(d) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party
of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which it may
have to any 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
Trident Securities, Inc.
Sales Agency Agreement
Page 21
notified, to assume the defense thereof, with counsel satisfactory to
such indemnified party, and after notice from the indemnifying party to
such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such indemnified
party under this Section 8 for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense
thereof other than the reasonable cost of investigation except as
otherwise provided herein. In the event the indemnifying party elects
to assume the defense of any such action and retain counsel acceptable
to the indemnified party, the indemnified party may retain additional
counsel, but shall bear the fees and expenses of such counsel unless
(i) the indemnifying party shall have specifically authorized the
indemnified party to retain such counsel or (ii) the parties to such
suit include such indemnifying party and the indemnified party, and
such indemnified party shall have been advised by counsel that one or
more material legal defenses may be available to the indemnified party
which may not be available to the indemnifying party, in which case the
indemnifying party shall not be entitled to assume the defense of such
suit notwithstanding the indemnifying party's obligation to bear the
fees and expenses of such counsel. An indemnifying party against whom
indemnity may be sought shall not be liable to indemnify an indemnified
party under this Section 8 if any settlement of any such action is
effected without such indemnifying party's consent. To the extent
required by law, this Section 8 is subject to and limited by the
provisions of Section 23A and 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 Trident, the Company
and/or the Association other than in accordance with its terms, the Company or
the Association and Trident shall contribute to the aggregate losses,
liabilities, claims, damages, and expenses of the nature contemplated by said
indemnity agreement incurred by the Company or the Association and Trident (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Company and the Association on the one hand and Trident on the other from
the offering of the Shares or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above, but
also the relative fault of the Company or the Association on the one hand and
Trident on the other hand in connection with the statements or omissions which
resulted in such losses, claims, damages, liabilities or judgments, as well as
any other relevant equitable considerations. The relative benefits received by
the Company and the Association on the one hand and Trident on the other shall
be deemed to be in the same proportions as the total net proceeds from the
Conversion received by the Company and the Association bear to the total fees
received by Trident under this Agreement. The relative fault of the Company or
the Association on the one hand and Trident on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Association or by
Trident Securities, Inc.
Sales Agency Agreement
Page 22
Trident and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the Association and Trident agree that it would not be
just and equitable if contribution pursuant to this Section 9 were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by the indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 9, Trident shall not be required
to contribute any amount in excess of the amount by which fees owed Trident
pursuant to this Agreement exceeds the amount of any damages which Trident has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who is not guilty of such fraudulent
misrepresentation. To the extent required by law, this Section 8 is subject to
and limited by the provisions of Section 23A and Section 23B.
10. Survival of Agreements, Representations and Indemnities. The
respective indemnities of the Company and the Association and Trident and the
representation and warranties of the Company and the Association and of Trident
set forth in or made pursuant to this Agreement shall remain in full force and
effect, regardless of any termination or cancellation of this Agreement or any
investigation made by or on behalf of Trident or the Company or the Association
or any controlling person or indemnified party referred to in Section 8 hereof,
and shall survive any termination or consummation of this Agreement and/or the
issuance of the Shares, and any legal representative of Trident, the Company,
the Association 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 Association or the
Conversion; 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
Trident Securities, Inc.
Sales Agency Agreement
Page 23
in the capitalization, condition or business of the Company, or if the
Association 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 or the Association.
(b) If Trident elects to terminate this Agreement as provided
in this Section, the Company and the Association shall be notified
promptly by Trident by telephone or telegram, confirmed by letter.
(c) If this Agreement is terminated by Trident for any of the
reasons set forth in subsection (a) above, and to fulfill its
obligations, if any, pursuant to Sections 3, 6, 8(a) and 9 of this
Agreement and upon demand, the Company and the Association shall pay
Trident the full amount so owing thereunder.
(d) The Association may terminate the Conversion in accordance
with the terms of the Plan. Such termination shall be without liability
to any party, except that the Company and the Association shall be
required to fulfill their obligations, to the extent applicable,
pursuant to Sections 3(b), 3(c), 6, 8(a) and 9 of this Agreement.
12. Notices. All communications hereunder, except as herein otherwise
specifically provided, shall be in writing and if sent to Trident shall be
mailed, delivered or telegraphed and confirmed to Trident Securities, Inc., 0000
Xxx Xxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Mr. R. Xxx
Xxxxxxx, Xx. (with a copy to Xxxxxxx, Spidi, Sloane & Xxxxx, P.C., 0000 X
Xxxxxx, X.X., Xxxxx 000 Xxxx, Xxxxxxxxxx, X.X. 00000, Attention: Xxxx X. Spidi,
Esquire) and if sent to the Company or the Association shall be mailed,
delivered or telegraphed and confirmed to First Xxxxxxxx Savings and Loan, F.A.,
000 Xxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Xxxx X. Xxxx,
President (with a copy to Silver, Xxxxxxxx & Taff, L.L.P., Suite 700, 0000 Xxx
Xxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000-0000, Attention: Xxxxxxx X. Xxxxxxx,
P.C.).
13. Parties. This Agreement shall inure solely to the benefit of, and
shall be binding upon, Trident, the Company, the Association 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 North Carolina.
15. Counterparts. This Agreement may be executed in separate
counterparts, each of which when so executed and delivered shall be an original,
but all of which together shall constitute but one and the same instrument.
Please acknowledge your agreement to the foregoing by signing below and
returning to the Company one copy of this letter.
FIRST XXXXXXXX FINANCIAL FIRST XXXXXXXX SAVINGS
CORPORATION AND LOAN, F.A.
By:_________________________ By:________________________
Xxxx X. Xxxx Xxxx X. Xxxx
President and Chief President and Chief
Executive Officer Executive Officer
Date:_______________________ Date:_______________________
Agreed to and accepted:
TRIDENT SECURITIES, INC.
By:_________________________
Date:_______________________
Exhibit A
Jurisdictions where Trident is a Registered Selling Agent
Trident Securities, Inc. 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 Securities, Inc. is not a registered selling agent in the jurisdictions
listed below:
Alaska
Hawaii
Montana
South Dakota
Utah
A-1
Exhibit B
[Silver, Xxxxxxxx & Xxxx, L.L.P. to insert introduction]
(i) the Company has been duly incorporated, and is
validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation, and the Association
is validly existing as a mutual savings association under the
laws of the United States, each with full power and authority
to own its properties and conduct its business as described in
the Prospectus;
(ii) the Association is a member of the Federal Home
Loan Bank of Chicago, and the deposit accounts of the
Association are insured by the SAIF up to the applicable legal
limits;
(iii) to the best of our knowledge, the activities of
the Association as such activities are described in the
Prospectus are permitted under federal and Delaware law to
subsidiaries of a Delaware business corporation and the
Association does not have any subsidiaries;
(iv) The Plan complies with, and, to the best of our
knowledge, the Conversion of the Association from a federally
chartered mutual savings association to a federally chartered
stock savings association and the creation of the Company as a
holding company for the Association have been effected in all
material respects in accordance with, the HOLA and the OTS
Regulations; to the best of our knowledge, all of the terms,
conditions, requirements and provisions with respect to the
Plan and the Conversion imposed by the Office, except with
respect to the filing or submission of certain required
post-Conversion reports or other materials by the Company or
the Association, have been complied with by the Company and
the Association; and, to the best of our knowledge, no person
has sought to obtain regulatory or judicial review of the
final action of the Office in approving the Plan;
(v) the Company has authorized Common Stock as set
forth in the Registration Statement and the Prospectus, and
the description of such Common Stock in the Registration
Statement and the Prospectus is accurate in all material
respects;
(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; 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 free and clear of all claims,
encumbrances, security interests and liens created by the
Company;
B-1
(vii) the form of certificate used to evidence the
Shares is in proper form and complies in all material respects
with applicable Delaware law;
(viii) the issuance and sale of the capital stock of
the Association to the Company have been duly authorized by
all necessary corporate action of the Association and the
Company and have received the approval of the Office, and such
capital stock, upon receipt of payment and issuance in
accordance with the terms of the Plan, will be validly issued,
fully paid and nonassessable and owned of record and, to our
actual knowledge, beneficially by the Company;
(ix) subject to the satisfaction of the conditions to
the Office's approval of the Conversion Application, no
further approval, authorization, consent or other order of any
federal government board or body is required in connection
with the execution and delivery of this Agreement, and the
consummation of the Conversion, except with respect to the
issuance to the Association of the Stock Charter by the Office
and 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 Conversion have been duly and validly
authorized by all necessary corporate action on the part of
each of the Company and the Association;
(xi) the statements in the Prospectus and
incorporated by reference in the Proxy Statement under the
captions "Regulation," "Dividends," "Restrictions on
Acquisitions of Stock and Related Takeover Defensive
Provisions" and "Description of Capital Stock," insofar as
they are, or refer to, statements of law or legal conclusions
(excluding financial data included therein, as to which no
opinion is expressed), have been prepared or reviewed by us
and are correct in all material respects;
(xii) the Form AC has been approved by the Office,
and the Prospectus and the Proxy Statement have been
authorized for use by the Office; the Registration Statement
and any post-effective amendment thereto has 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 Office in
connection with its approval of the Conversion Application),
and, to the best of our knowledge, no proceedings are pending
by or before the Commission or the Office seeking to revoke or
rescind the orders declaring the Registration Statement
effective or approving the Conversion Application or, to the
best of 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
B-2
government authority has manifested to the management of the
Company or the Association, or to us, a present intention to
initiate such litigation or proceeding);
(xiii) the execution and delivery of this Agreement
and the consummation of the Conversion by the Company and the
Association do not conflict with or result in a breach of the
charter or bylaws of the Company or the Association (in either
mutual or stock form)
(xiv) the Conversion Application, the Registration
Statement, the Prospectus and the Proxy Statement, in each
case as amended, comply as to form in all material respects
with the requirements of the Act, the HOLA, the SEC
Regulations and the OTS Regulations, as the case may be
(except as to information with respect to Trident included
therein and financial statements, notes to financial
statements, financial tables and other financial and
statistical data, including the appraisal, included therein,
as to which no opinion is expressed); to the best of our
knowledge, all material documents and exhibits required to be
filed with the Conversion Application and the Registration
Statement have been so filed and the descriptions in the
Conversion Application and the Registration Statement of such
documents and exhibits are accurate in all material respects.
[Silver, Xxxxxxxx & Xxxx, L.L.P. to insert conclusion]
B-3
Exhibit C
[_________________________________ to insert introduction]
(i) to our actual knowledge, the Association has
obtained all licenses, permits and other governmental
authorizations currently required for the conduct of its
business as such business is described in the Prospectus, all
such licenses, permits and other governmental authorizations
are in full force and effect and the Association is in all
material respects complying therewith, except where the
failure to hold such licenses, permits or governmental
authorizations or the failure to so comply would not have a
material adverse effect on the Company and the Association,
taken as a whole;
(ii) there are no material legal or governmental
proceedings pending or, to our actual knowledge, threatened
against or involving the assets of the Company or the
Association (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
Association, or to us, a present intention to initiate such
litigation or proceeding);
(iii) to our actual knowledge, the execution and
delivery of the Agreement and the consummation of the
Conversion by the Company and the Association do not
constitute a material breach of or default (or an event which,
with notice or lapse of time or both, would constitute a
default) under, give rise to any right of termination,
cancellation or acceleration contained in, or result in the
creation or imposition of any lien, charge or other
encumbrance upon any of the properties or assets of the
Company or the Association pursuant to any of the terms,
provisions or conditions of, any material agreement, contract,
indenture, bond, debenture, note, instrument or obligation to
which the Company or the Association is a party or violate any
governmental license or permit or any enforceable published
law, administrative regulation or order or court order, writ,
injunction or decree (subject to the satisfaction of certain
conditions imposed by the Office in connection with its
approval of the Conversion Application), which breach,
default, encumbrance or violation would have a material
adverse effect on the financial condition, operations,
business, assets or properties of the Company and the
Association taken as a whole;
(iv) to our actual knowledge, there has been no
material breach of any provision of the Company's or the
Association's charter or bylaws or breach or default (or the
occurrence of any event which, with notice or lapse of time or
both, would constitute a default) under any agreement,
contract, indenture, bond, debenture, note, instrument or
obligation to which the Company or the
C-1
Association is a party or by which any of them or any of their
respective assets or properties may be bound, or any
governmental license or permit, or a violation of any
enforceable published law, administrative regulation or order,
or court order, writ, injunction or decree which breach,
default, encumbrance or violation would have a material
adverse effect on the financial condition, operations,
business, assets or properties of the Company and the
Association taken as a whole; and,
(v) the Agreement is a legal, valid and binding
obligation of each of the Company and the Association,
enforceable in accordance with its terms (except as the
enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, reorganization, receivership,
conservatorship or similar laws relating to or affecting the
enforcement of creditors' rights generally or the rights of
creditors of depository institutions whose accounts are
insured by the FDIC or savings and loan holding companies the
accounts of whose subsidiaries are insured by the FDIC or by
general equity principles, regardless of whether such
enforceability is considered in a proceeding in equity or at
law, and except to the extent that the provisions of Sections
8 and 9 hereof may be unenforceable as against public policy
or pursuant to Section 23A or Section 23B, as to which we
render no opinion);
[_________________________________ to insert conclusion]
C-2
Exhibit D
[Silver, Xxxxxxxx & Taff, L.L.P. to insert introduction]
Based on such counsel's participation in conferences with
representatives of the Company, the Association, 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 S-1 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).
[Silver, Xxxxxxxx & Xxxx, L.L.P. to insert conclusion]
0200\agencyag
D-1
