Exhibit 1.2
Indian Village Bancorp, Inc.
Common Stock
510,000 to 793,500 Shares
$10.00 Per Share
SALES AGENCY AGREEMENT
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Trident Securities, Inc.
0000 Xxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Dear Sirs:
Indian Village Bancorp, Inc., a Pennsylvania-chartered corporation (the
"Company"), and Indian Village Community Bank, a federally chartered and
federally-insured mutual savings bank (the "Bank"), hereby confirm, as of April
___, 1999, their respective agreements with Trident Securities, Inc.
("Trident"), a broker-dealer registered with the Securities and Exchange
Commission ("Commission") and a member of the National Association of Securities
Dealers, Inc. ("NASD"), as follows:
1. Introductory. The Bank intends to convert from a federally-chartered mutual
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savings bank to a federally chartered stock savings bank as a wholly-owned
subsidiary of the Company (which conversion, together with the Offerings, as
defined below, the issuance of shares of common stock of the Bank to the Company
and the incorporation of the Company, are referred to collectively herein as the
"Conversion") pursuant to a plan of conversion adopted on January 20, 1999 (as
amended, if amended, the "Plan"). In accordance with the Plan, the Company is
offering shares of its common stock (the "Shares" and the "Common Stock"),
pursuant to nontransferable subscription rights in a subscription offering (the
"Subscription Offering") to certain depositors of the Bank and to the Bank's
tax-qualified employee benefit plan (i.e., the Bank's Employee Stock Ownership
Plan (the "ESOP")). Shares of the Common Stock not sold in the Subscription
Offering may be offered to the general public in a community offering, with
preference given to natural persons residing in Tuscarawas County, Ohio (the
"Community Offering"), subject to the right of the Company and the Bank, in
their absolute discretion, to reject orders in the Community Offering in whole
or in part. Shares not sold in the Subscription Offering or otherwise in the
Community Offering may be offered to certain members of the general public as
part of the Community Offering by a group of broker-dealers (the "Syndicated
Community Offering") (the Subscription Offering
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and, if any, the Community and Syndicated Community Offerings are sometimes
referred to collectively as the "Offerings"). In the Offerings, the Company is
offering between 510,000 and 690,000 Shares, with the possibility of offering up
to 793,500 Shares without a resolicitation of subscribers, as contemplated by
Part 563b of Title 12 of the Code of Federal Regulations. With the exception of
the ESOP, no person (or persons through a single account) may purchase in the
Offerings more than 10,000 Shares; no person, together with associates of and
persons acting in concert with such person, may purchase in the Offerings more
than 15,000 Shares.
The Company and the Bank have been advised by Trident that it will utilize its
best efforts in assisting the Company and the Bank with the sale of the Shares
in the Offerings, including any Syndicated Community Offering. Prior to the
execution of this Agreement, the Company has delivered to Trident a prospectus
dated as of the date hereof and all supplements thereto to be used in the
Offerings. Such prospectus contains information with respect to the Company,
the Bank and the Shares.
2. Representations and Warranties.
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(a) The Company and the Bank jointly and severally represent and warrant to
Trident that:
(i) The Company has filed with the Commission a registration
statement, including exhibits and an amendment or amendments thereto,
on Form SB-2 (No. ___________), 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")
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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 Commission a prospectus or prospectus
supplement containing information relating to the results of the
Subscription Offering and, if any, the Community Offering and pricing
information pursuant to Rule 424(c) of the Regulations, in either case
in a form reasonably acceptable to the Company and Trident.
(ii) The Bank has filed an Application for Approval of Conversion on
Form AC, including exhibits (as amended or supplemented, the "Form AC"
and together with the Form H-(e)l-S referred to below, the "Conversion
Application") with the Office of Thrift Supervision (the "Office")
under the Home Owners' Loan Act, as amended (the "HOLA") and the
enforceable rules and regulations, including published policies and
actions, of the Office thereunder (the "OTS Regulations"), which has
been approved by the Office; and the Prospectus and the proxy
statement for the solicitation of proxies from members for the special
meeting to approve the Plan (the "Proxy Statement") included as part
of the Form AC have been approved for use by the Office. No order has
been issued by the Office preventing or suspending the use of the
Prospectus or the Proxy Statement; and no action by or before the
Office revoking such approvals is pending or, to the Bank's best
knowledge, threatened. The Company has filed with the Office the
Company's application on Form H-(e)l-S promulgated under the savings
and loan holding company provisions of the HOLA and the OTS
Regulations and has received approval of its acquisition of the Bank
from the Office.
(iii) At the date of the Prospectus and at all times subsequent
thereto through and including the Closing Date (i) the Registration
Statement and the Prospectus
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(as amended or supplemented, if amended or supplemented) complied with
the Act and the Regulations, (ii) the Registration Statement (as
amended or supplemented, if amended or supplemented) did not contain
an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading, and (iii) the Prospectus (as amended or
supplemented, if amended or supplemented) did not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. Representations or warranties in this subsection shall not
apply to statements or omissions made in reliance upon and in
conformity with written information furnished to the Company or the
Bank relating to Trident by or on behalf of Trident expressly for use
in the Registration Statement or Prospectus.
(iv) The Company has been duly organized as a Pennsylvania
corporation, and the Bank has been duly organized as a mutual savings
bank under the laws of the United States, and each of them is validly
existing and in good standing under the laws of the jurisdiction of
its organization with full power and authority to own its property and
conduct its business as described in the Registration Statement and
Prospectus; the Bank is a member in good standing of the Federal Home
Loan Bank of Cincinnati; and the deposit accounts of the Bank are
insured by the Savings Bank Insurance Fund ("SAIF") administered by
the Federal Deposit Insurance Corporation ("FDIC") up to the
applicable legal limits. Each of the Company and the Bank is not
required to be qualified to do business as a foreign corporation in
any jurisdiction where non-qualification would have a material adverse
effect on the Company and the Bank, taken as a whole. The Bank does
not own equity securities of or an equity interest in any business
enterprise except as described in the Prospectus. Upon amendment of
the Bank's charter and bylaws as provided in the rules and regulations
of the Office and completion of the sale by the Company of the Shares
as contemplated by the Prospectus, (i) the Bank will be converted
pursuant to the Plan to a federally chartered capital stock savings
bank with full power and authority to own its property and conduct its
business as described in the Prospectus, (ii) all of the authorized
and outstanding capital stock of the Bank will be owned of record and
beneficially by the Company, and (iii) the Company will have no direct
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subsidiaries other than the Bank. (v) The Bank has good, marketable
and insurable title to all assets material to its business and to
those assets described in the Prospectus as owned by it, free and
clear of all material liens, charges, encumbrances or restrictions,
except for liens for taxes not yet due, except as described in the
Prospectus and except as could not in the aggregate have a material
adverse effect upon the operations or financial condition of the Bank;
and all of the leases and subleases material to the operations or
financial condition of the Bank, under which it holds properties,
including those described in the Prospectus, are in full force and
effect as described therein.
(vi) The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly
and validly authorized by all necessary actions on the part of each of
the Company and the Bank, and this Agreement is a valid and binding
obligation with valid execution and delivery of each of the Company
and the Bank, enforceable in accordance with its terms (except as the
enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, reorganization or similar laws relating to or affecting
the enforcement of creditors' rights generally or the rights of
creditors of savings and loan holding companies the accounts of whose
subsidiaries are insured by the FDIC or by general equity principles,
regardless of whether such enforceability is considered in a
proceeding in equity or at law, and except to the extent that the
provisions of Sections 8 and 9 hereof may be unenforceable as against
public policy or pursuant to Sections 23A and 23B of the Federal
Reserve Act, 12 U.S.C. Sections 371c and 371c-1 (collectively,
"Section 23A")).
(vii) There is no litigation or governmental proceeding pending or,
to the best knowledge of the Company or the Bank, threatened against
or involving the Company, the Bank or any of their respective assets
which individually or in the aggregate would reasonably be expected to
have a material adverse effect on the condition (financial or
otherwise), results of operations and business, including the assets
and properties, of the Company and the Bank, taken as a whole.
(viii) The Company and the Bank have received the opinions of
Xxxxxxx, Xxxxxx & Xxxxxxxx, LLP, with respect to federal tax
consequences of the Conversion,
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and of Xxxxx, Xxxxxx and Company LLP, with respect to Ohio tax
consequences of the Conversion, to the effect that the Conversion will
constitute a taxfree reorganization under the Internal Revenue Code of
1986, as amended, and will not be a taxable transaction for the Bank
or the Company under the laws of Georgia, and the facts relied upon in
such opinions are accurate and complete.
(ix) Each of the Company and the Bank has all such corporate power,
authority, authorizations, approvals and orders as may be required to
enter into this Agreement and to carry out the provisions and
conditions hereof, subject to the limitations set forth herein and
subject to the satisfaction of certain conditions imposed by the
Office in connection with its approvals of the Form AC and the
Application H-(e)1-S, and except as may be required under the
securities laws of various jurisdictions, and in the case of the
Company, as of the Closing Date, will have such approvals and orders
to issue and sell the Shares to be sold by the Company as provided
herein, and in the case of the Bank, as of the Closing Date, will have
such approvals and orders to issue and sell the Shares of its Common
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) Neither the Company nor the Bank is in violation of any rule or
regulation of the Office or the FDIC that could reasonably be expected
to result in any enforcement action against the Company, the Bank or
their officers or directors that might have a material adverse effect
on the condition (financial or otherwise), operations, businesses,
assets or properties of the Company and the Bank, taken as a whole.
(xi) The financial statements and any related notes or schedules
which are included in the Registration Statement and the Prospectus
fairly present the financial condition, income, retained earnings and
cash flows of the Bank at the respective dates thereof and for the
respective periods covered thereby and comply as to form with the
applicable accounting requirements of the SEC and OTS Regulations.
Such financial statements have been prepared in accordance with
generally accepted accounting principles consistently applied
throughout the periods involved, except as set forth therein, and such
financial statements are
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consistent with financial statements and other reports filed by the
Bank with supervisory and regulatory authorities except as such
generally accepted accounting principles may otherwise require. The
tables in the Prospectus accurately present the information purported
to be shown thereby at the respective dates thereof and for the
respective periods therein.
(xii) There has been no material change in the condition (financial
or otherwise), results of operations or business, including assets and
properties, of the Company and the Bank, taken as a whole, since the
latest date as of which such condition is set forth in the Prospectus,
except as set forth therein; and the capitalization, assets,
properties and business of each of the Company and the Bank conform to
the descriptions thereof contained in the Prospectus. None of the
Company or the Bank has any material liabilities of any kind,
contingent or otherwise, except as set forth in the Prospectus.
(xiii) There has been no breach or default (or the occurrence of any
event which, with notice or lapse of time or both, would constitute a
default) under, or creation or imposition of any lien, charge or other
encumbrance upon any of the properties or assets of the Company or the
Bank pursuant to any of the terms, provisions or conditions of, any
agreement, contract, indenture, bond, debenture, note, instrument or
obligation to which the Company or the Bank is a party or by which any
of them or any of their respective assets or properties may be bound
or is subject, or violation of any governmental license or permit or
any enforceable published law, administrative regulation or order or
court order, writ, injunction or decree, which breach, default,
encumbrance or violation would have a material adverse effect on the
condition (financial or otherwise), operations, business, assets or
properties of the Company and the Bank, taken as a whole; all
agreements which are material to the condition (financial or
otherwise), results of operations or business of the Company and the
Bank, taken as a whole are in full force and effect, and no party to
any such agreement has instituted or, to the best knowledge of the
Company and the Bank, threatened any action or proceeding wherein the
Company or the Bank would be alleged to be in default thereunder.
(xiv) None of the Company or the Bank is in violation of its
respective charter or bylaws. The execution and delivery hereof and
the consummation of the
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transactions contemplated hereby by the Company and the Bank do not
conflict with or result in a breach of the charter or bylaws of the
Company or the Bank (in either mutual or stock form) or constitute a
material breach of or default (or an event which, with notice or lapse
of time or both, would constitute a default) under, give rise to any
right of termination, cancellation or acceleration contained in, or
result in the creation or imposition of any lien, charge or other
encumbrance upon any of the properties or assets of the Company or the
Bank pursuant to any of the terms, provisions or conditions of, any
material agreement, contract, indenture, bond, debenture, note,
instrument or obligation to which the Company or the Bank is a party
or violate any governmental license or permit or any enforceable
published law, administrative regulation or order or court order,
writ, injunction or decree (subject to the satisfaction of certain
conditions imposed by the Office in connection with its approval of
the Conversion Application), which breach, default, encumbrance or
violation would have a material adverse effect on the condition
(financial or otherwise), operations or business of the Company and
the Bank, taken as a whole.
(xv) Subsequent to the respective dates as of which information is
given in the Registration Statement and Prospectus and prior to the
Closing Date (as hereinafter defined), except as otherwise may be
indicated or contemplated therein, none of the Company or the Bank has
issued any securities which will remain issued at the Closing Date or
incurred any liability or obligation, direct or contingent, or
borrowed money, except borrowings in the ordinary course of business,
or entered into any.other transaction not in the ordinary course of
business and consistent with prior practices, which is material in
light of the business of the Company and the Bank, taken as a whole.
(xvi) Upon consummation of the Conversion, the authorized, issued and
outstanding equity capital of the Company shall be within the range as
set forth in the Prospectus under the caption "Capitalization," and no
Common Stock of the Company shall be outstanding immediately prior to
the Closing Date; the issuance and the sale of the Shares of the
Company have been duly authorized by all necessary action of the
Company and approved by the Office and, when issued in accordance with
the terms of the Plan and paid for, shall be validly issued, fully
paid and nonassessable and shall conform to the description thereof
contained in the Prospectus; the issuance of the Shares is not subject
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to preemptive rights, except as set forth in the Prospectus; and good
title to the Shares will be transferred by the Company upon issuance
thereof against payment therefor, free and clear of all claims,
encumbrances, security interests and liens against the Company
whatsoever. The certificates representing the Shares will conform in
all material respects with the requirements of applicable laws and
regulations. The issuance and sale of the capital stock of the Bank to
the Company has been duly authorized by all necessary action of the
Bank and the Company and appropriate regulatory authorities (subject
to the satisfaction of various conditions imposed by the Office in
connection with its approval of the Conversion Application), and such
capital stock, when issued in accordance with the terms of the Plan,
will be fully paid and nonassessable and will conform in all material
respects to the description thereof contained in the Prospectus.
(xvii) No approval of any regulatory or supervisory or other public
authority is required in connection with the execution and delivery of
this Agreement or the issuance of the Shares, except for the
declaration of effectiveness of any required post-effective amendment
by the Commission and approval thereof by the Office and approval of
the Company's application on Form H-(e)l-S by the Office, the issuance
of the Stock Charter by the Office and as may be required under the
securities laws of various jurisdictions.
(xviii) All contracts and other documents required to be filed as
exhibits to the Registration Statement or the Conversion Application
have been filed with the Commission and/or the Office, as the case may
be.
(xix) Xxxxx, Xxxxxx and Company LLP, which has audited the financial
statements of the Bank at December 31, 1998 and 1997 and for the years
ended December 31, 1998 and 1997 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 Bank have timely
filed all required federal, state and local franchise tax returns, and
no deficiency has been asserted with respect to such returns by any
taxing authorities, and the Company and the Bank have paid all taxes
that have become due and, to the best of their knowledge, have made
adequate reserves for similar future tax liabilities, except where any
failure to
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make such filings, payments and reserves, or the assertion of such a
deficiency, would not have a material adverse effect on the condition
of the Company and the Bank, taken as a whole.
(xxi) All of the loans represented as assets of the Bank on the most
recent financial statements of the Bank included in the Prospectus
meet or are exempt from all requirements of federal, state or local
law pertaining to lending and interest, including without limitation
truth in lending (including the requirements of Regulation Z and 12
C.F.R. Part 226 and Section 563.99), real estate settlement
procedures, consumer credit protection, equal credit opportunity and
all disclosure laws applicable to such loans, except for violations
which, if asserted, would not have a material adverse effect on the
Company and the Bank, taken as a whole.
(xxii) The records of account holders, depositors, borrowers and
other members of the Bank delivered to Trident by the Bank or its
agent for use during the Conversion have been prepared or reviewed by
the Bank and, to the best knowledge of the Company and the Bank, are
reliable and accurate.
(xxiii) None of the Company, the Bank or, to the best knowledge of
the Company and the Bank, the employees of the Company or the Bank,
has made any payment of funds of the Company or the Bank prohibited by
law, and no funds of the Company or the Bank have been set aside to be
used for any payment prohibited by law.
(xxiv) To the best knowledge of the Company and the Bank, the Company
and the Bank are in compliance with all laws, rules and regulations
relating to the discharge, storage, handling and disposal of hazardous
or toxic substances, pollutants or contaminants and neither the
Company nor the Bank believes that the Company or the Bank is subject
to liability under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, or any similar
law, except for violations which, if asserted, would not have a
material adverse effect on the Company and the Bank, taken as a whole.
There are no actions, suits, regulatory investigations or other
proceedings pending or, to the best knowledge of the Company or the
Bank, threatened against the Company or the Bank relating to the
discharge, storage, handling and disposal of hazardous or toxic
substances, pollutants or contaminants. To the best knowledge of the
Company and the Bank, no disposal, release or discharge of
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hazardous or toxic substances, pollutants or contaminants, including
petroleum and gas products, as any of such terms may be defined under
federal, state or local law, has been caused by the Company or the
Bank or, to the best knowledge of the Company or the Bank, has
occurred on, in or at any of the facilities or properties of the
Company or the Bank, except such disposal, release or discharge which
would not have a material adverse effect on the Company and the Bank,
taken as a whole.
(xxv) At the Closing Date, the Company and the Bank will have
completed the conditions precedent to, and shall have conducted the
Conversion in all material respects in accordance with, the Plan, the
HOLA, the OTS Regulations and all other applicable laws, regulations,
published decisions and orders, including all terms, conditions,
requirements and provisions precedent to the Conversion imposed by the
Office.
(b) Trident represents and warrants to the Company and the Bank that:
(i) Trident is registered as a broker-dealer with the Commission, and
is in good standing with the Commission and the NASD.
(ii) Trident is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation, with full
corporate power and authority to provide the services to be furnished
to the Company and the Bank hereunder.
(iii) The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly
and validly authorized by all necessary action on the part of Trident,
and this Agreement is a legal, valid and binding obligation of
Trident, enforceable in accordance with its terms (except as the
enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, reorganization or similar laws relating to or affecting
the enforcement of creditors' rights generally or the rights of
creditors of registered broker-dealers accounts of whose may be
protected by the Securities Investor Protection Corporation or by
general equity principles, regardless of 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).
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(iv) Each of Trident and, to Trident's knowledge, its employees,
agents and representatives who shall perform any of the services
required hereunder to be performed by Trident shall be duly authorized
and shall have all licenses, approvals and permits necessary to
perform such services, and Trident is a registered selling agent in
the jurisdictions listed in Exhibit A hereto and will remain
registered in such jurisdictions in which the Company is relying on
such registration for the sale of the Shares, until the Conversion is
consummated or terminated.
(v) The execution and delivery of this Agreement by Trident, the
fulfillment of the terms set forth herein and the consummation of the
transactions contemplated hereby shall not violate or conflict with
the corporate charter or bylaws of Trident or violate, conflict with
or constitute a breach of, or default (or an event which, with notice
or lapse of time, or both, would.constitute a default) under, any
material agreement, indenture or other instrument by which Trident is
bound or under any governmental license or permit or any law,
administrative regulation, authorization, approval or order or court
decree, injunction or order.
(vi) Any funds received by Trident to purchase Common Stock will be
handled in accordance with Rule 15c2-4 under the Securities Exchange
Act of 1934, as amended (the "Exchange Act").
(vii) There is not now pending or, to Trident's knowledge, threatened
against Trident any action or proceeding before the Commission, the
NASD, any state securities commission or any state or federal court
concerning Trident's activities as a broker-dealer.
3. Employment of Trident; Sale and Delivery of the Shares. On the basis of
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the representations and warranties herein contained, but subject to the terms
and conditions herein set forth, the Company and the Bank hereby employ Trident
as their agent to utilize its best efforts in assisting the Company with the
Company's sale of the Shares in the Subscription Offering and, if any, the
Community Offering. The employment of Trident hereunder shall terminate (a)
forty-five (45) days after the Offerings close, unless the Company and the Bank,
with the approval of the Office, are permitted to extend such period of time, or
(b) upon consummation of the Conversion, whichever date shall first occur.
In the event the Company is unable to sell a minimum of 510,000 Shares (or such
lesser amount as the Office may permit) within the period herein provided, this
Agreement shall terminate, and
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the Company and the Bank shall refund promptly to any persons who have
subscribed for any of the Shares, the full amount which it may have received
from them, together with interest as provided in the Prospectus, and no party to
this Agreement shall have any obligation to the other party hereunder, except as
set forth in Sections 6, 8(a) and 9 hereof. Appropriate arrangements for placing
the funds received from subscriptions for Shares in special interest-bearing
accounts with the Bank until all Shares are sold and paid for were made prior to
the commencement of the Offerings, with provision for prompt refund to the
purchasers as set forth above, or for delivery to the Company if all Shares are
sold. If all conditions precedent to the consummation of the Conversion are
satisfied, including the sale of all Shares required by the Plan to be sold, the
Company agrees to issue or have issued such Shares and to release for delivery
certificates to subscribers thereof for such Shares on the Closing Date against
payment to the Company by any means authorized pursuant to the Prospectus, at
the principal office of the Company at 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxxxx,
Xxxx 00000, or at such other place as shall be agreed upon between the parties
hereto. The date upon which Trident is paid the compensation due hereunder is
herein called the "Closing Date."
Trident agrees either (a) upon receipt of an executed order form of a subscriber
to forward the offering price of the Common Stock ordered on or before twelve
noon on the next business day following receipt or execution of an order form by
Trident to the Bank for deposit in a segregated account or (b) to solicit
indications of interest in which event (i) Trident will subsequently contact any
potential subscriber indicating interest to confirm the interest and give
instructions to execute and return an order form or to receive authorization to
execute the order form on the subscriber's behalf, (ii) Trident will mail
acknowledgements of receipt of orders to each subscriber confirming interest on
the business day following such confirmation, (iii) Trident will debit accounts
of such subscribers on the third business day ("debit date") following receipt
of the confirmation referred to in (i), and (iv) Trident will forward completed
order forms together with such funds to the Bank on or before twelve noon on the
next business day following the debit date for deposit in a segregated account.
Trident acknowledges that if the procedure in (b) is adopted, subscribers' funds
are not required to be in their accounts until the debit date.
In addition to the expenses specified in Section 6 hereof, Trident shall receive
the following compensation for its services hereunder:
(a) (i) the amount of $100,000 (less the Bank's advance payment in the
amount of $10,000 provided to Trident for the defrayal of expenses), and
(ii) a commission of 5-1/2% of
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the per Share sales price for each share sold by other member firms of the
NASD through a selected dealers arrangement in any Syndicated Community
Offering. All commissions shall be based on the amount of Common Stock
sold. All such amounts and commissions are to be payable in same-day funds
to Trident on the Closing Date.
(b) Notwithstanding amounts coming due under the preceding paragraph (a),
in the event that a resolicitation or other event causes the Offerings to
be extended beyond their original expiration date, the Company and the Bank
shall reimburse Trident for its reasonable additional expenses incurred
during such extended period, provided that any such additional
reimbursements shall not exceed an amount equal to the product obtained by
dividing $10,000 (the original payment by the Bank to defray Trident's 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 offering to the closing of the extension of the offering(s)
described in such supplemental prospectus).
The Company shall pay any stock issue and transfer taxes which may be payable
with respect to the sale of the Shares. The Company and the Bank shall also pay
all expenses of the 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 510,000
and a maximum of 690,000 Shares, with the possibility of offering up to 793,500
Shares (except as the Office may permit to be decreased or increased) in the
Offerings. The Shares are to be offered to the public at the price set forth on
the cover page of the Prospectus and the first page of this Agreement.
5. Further Agreements. The Company and the Bank jointly and severally
------------------
covenant and agree that:
(a) The Company shall deliver to Trident, from time to time, such number
of copies of the Prospectus as Trident reasonably may request. The Company
authorizes Trident to use the Prospectus in any lawful manner in connection
with
14
the offer and sale of the Shares.
(b) The Company will notify Trident immediately upon discovery, and
confirm the notice in writing, (i) when any post-effective amendment to the
Registration Statement becomes effective or any supplement to the
Prospectus has been filed, (ii) of the issuance by the Commission of any
stop order relating to the Registration Statement or of the initiation or
the threat of any proceedings for that purpose, (iii) of the receipt of any
notice with respect to the suspension of the qualification of the Shares
for offering or sale in any jurisdiction, and (iv) of the receipt of any
comments from the staff of the Commission relating to the Registration
Statement. If the Commission enters a stop order relating to the
Registration Statement at any time, the Company will make every reasonable
effort to obtain the lifting of such order at the earliest possible moment.
(c) During the time when a prospectus is required to be delivered under
the Act, the Company will comply so far as it is able with all requirements
imposed upon it by the Act, as now in effect and hereafter amended, and by
the Regulations, as from time to time in force, so far as necessary to
permit the continuance of offers and sales of or dealings in the Shares in
accordance with the provisions hereof and the Prospectus. If during the
period when the Prospectus is required to be delivered in connection with
the offer and sale of the Shares any event relating to or affecting the
Company and the Bank, taken as a whole, shall occur as a result of which it
is necessary, in the opinion of counsel for Trident, with the concurrence
of counsel to the Company, to amend or supplement the Prospectus in order
to make the Prospectus not false or misleading in light of the
circumstances existing at the time it is delivered to a purchaser of the
Shares, the Company forthwith shall prepare and furnish to Trident a
reasonable number of copies of an amendment or amendments or of a
supplement or supplements to the Prospectus (in form and substance
satisfactory to counsel for Trident) which shall amend or supplement the
Prospectus so that, as amended or supplemented, the Prospectus shall not
contain an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in light of the
circumstances existing at the time the Prospectus is delivered to a
purchaser of the Shares, not misleading. The Company will not file or use
any amendment or supplement to the Registration Statement or the Prospectus
of which Trident has not first been furnished a copy or to which Trident
shall reasonably object after having been furnished such copy. For the
purposes of this subsection the Company and the Bank shall furnish such
information with respect to
15
themselves as Trident from time to time may reasonably request.
(d) The Company and the Bank have taken or will take all reasonably
necessary action as may be required to qualify or register the Shares for
offer and sale by the Company under the securities laws of such
jurisdictions as Trident and either the Company or its counsel may agree
upon; provided, however, that the Company shall not be obligated to qualify
as a foreign corporation to do business under the laws of any such
jurisdiction. In each jurisdiction where such qualification or registration
shall be effected, the Company, unless Trident agrees that such action is
not necessary or advisable in connection with the distribution of the
Shares, shall file and make such statements or reports as are, or
reasonably may be, required by the laws of such jurisdiction.
(e) Appropriate entries will be made in the financial records of the Bank
sufficient to establish a liquidation account for the benefit of eligible
account holders and supplemental eligible account holders in accordance
with the requirements of the Office.
(f) The Company will file a registration statement for the Common Stock
under Section 12(g) of the Exchange Act, prior to completion of the stock
offering pursuant to the Plan and shall request that such registration
statement be effective upon completion of the Conversion. The Company
shall maintain the effectiveness of such registration for a minimum period
of three years or for such shorter period as may be required by applicable
law.
(g) The Company will make generally available to its security holders as
soon as practicable, but not later than 90 days after the close of the
period covered thereby, an earnings statement (in form complying with the
provisions of Rule 158 of the regulations promulgated under the Act)
covering a twelve-month period beginning not later than the 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
16
shareholders, and (ii) from time to time, such other public information
concerning the Company as Trident may reasonably request.
(i) The Company shall use the net proceeds from the sale of the Shares
consistently with the manner set forth in the Prospectus.
(j) The Company shall not deliver the Shares until each and every
condition set forth in Section 7 hereof has been satisfied, unless such
condition is waived in writing by Trident.
(k) The Company shall advise Trident, if necessary, as to the allocation
of deposits, in the case of eligible account holders, and votes, in the
case of other members, and of the Shares in the event of an
oversubscription and shall, after consultation with Trident, provide
Trident final instructions as to the allocation of the Shares ("Allocation
Instructions") in such event and such information shall be accurate and
reliable. Trident shall be entitled to rely on such instructions and shall
have no liability in respect of its reliance thereon, including without
limitation, no liability for or related to any denial or grant of a
subscription in whole or in part.
(l) The Company and the Bank will take such actions and furnish such
information as are reasonably requested by Trident in order for Trident to
ensure compliance with the NASD's "Interpretation Relating to Free-Riding
and Withholding."
6. Payment of Expenses. Whether or not the Conversion is consummated, the
-------------------
Company and the Bank shall pay or reimburse Trident for (a) all filing fees paid
or incurred by Trident in connection with all filings with the NASD with respect
to the Offerings, and (b) in addition, if the Company is unable to sell a
minimum of 510,000 Shares or such lesser amount as the OTS may permit or the
Conversion is otherwise terminated, for Trident's expenses incurred relating to
the offering of the Shares as provided in Section 3 hereof; provided that the
$10,000 advance payment made by the Bank for deferral of Trident's expenses
shall be applied to reduce any amounts owing under this Section 6, and; further
provided that neither the Company nor the Bank shall pay or reimburse Trident
for any of the foregoing expenses accrued after Trident shall have notified the
Company or the Bank of its election to terminate this Agreement pursuant to
Section 11 hereof or after such time as the Company or the Bank shall have given
notice in accordance with Section 12 hereof that Trident is in breach of this
Agreement.
7. Conditions of Trident's Obligations. Except as may be waived in writing by
-----------------------------------
17
Trident, the obligations of Trident as provided herein shall be subject to the
accuracy of the representations and warranties contained in Section 2 hereof as
of the date hereof and as of the Closing Date, to the performance by the Company
and the Bank of their obligations hereunder and to the following conditions:
(a) At the Closing Date, Trident shall receive the favorable opinions of
Xxxxxxx, Xxxxxx & Xxxxxxxx LLP, special counsel for the Company and the
Bank, dated the Closing Date, addressed to Trident, in form and substance
reasonably satisfactory to counsel for Trident, substantially as set forth
in Exhibits B and C, respectively, hereto.
(b) At the Closing Date, Trident shall receive the letter of Xxxxxxx,
Xxxxxx & Xxxxxxxx LLP, special counsel for the Company and the Bank, dated
the Closing Date, addressed to Trident, in form and substance reasonably
satisfactory to counsel for Trident, substantially as set forth in Exhibit
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 Bank regarding
the authorization of this Agreement and the transactions contemplated
hereby.
(d) Prior to and at the Closing Date, in the reasonable opinion of
Trident, (i) there shall have been no material change in the condition,
financial or otherwise, business or results of operations of the Company
and the Bank, taken as a whole, since the latest date as of which such
condition is set forth in the Prospectus, except as referred to therein;
(ii) there shall have been no transaction entered into by the Company or
the Bank after the latest date as of which the financial condition of the
Company or the Bank is set forth in the Prospectus other than transactions
referred to or contemplated therein, transactions in the ordinary course of
business, and transactions which are not material to the Company and the
Bank, taken as a whole; (iii) none of the Company or the Bank shall have
received from the Office or Commission any direction (oral or written) to
make any change in the method of conducting their respective businesses
which is material to the business of the Company and the Bank, taken as a
whole, with which they have not complied; (iv) no action, suit or
proceeding, at law or in equity or before or by any federal or state
commission,
18
board or other administrative agency, shall be pending or threatened
against the Company or the Bank or affecting any of their respective
assets, wherein an unfavorable decision, ruling or finding would have a
material adverse effect on the business, operations, financial condition or
income of the Company and the Bank, taken as a whole; and (v) the Shares
shall have been qualified or registered for offering and sale by the
Company under the securities laws of such jurisdictions as Trident and the
Company shall have agreed upon.
(e) At the Closing Date, Trident shall receive a certificate of the
principal executive, financial and accounting officer(s) of each of the
Company and the Bank, dated the Closing Date, to the effect that: (i) they
have examined the Prospectus and, at the time the Prospectus became
authorized by the Company for use, the Prospectus did not contain an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in light of the circumstances under
which they were made, not misleading with respect to the Company or the
Bank; (ii) since the date the Prospectus became authorized by the Company
for use, no event has occurred which should have been set forth in an
amendment or supplement to the Prospectus which has not been so set forth,
including specifically, but without limitation, any material change in the
business, condition (financial or otherwise) or results of operations of
the Company or the Bank and, the conditions set forth in clauses (ii)
through (iv) inclusive of subsection(d) of this Section 7 have been
satisfied; (iii) to the best knowledge of such officers, no order has been
issued by the Commission or the Office to suspend the Offerings or the
effectiveness of the Prospectus, and no action for such purposes has been
instituted or threatened by the Commission or the Office; (iv) to the best
knowledge of such officers, no person has sought to obtain review of the
final actions of the Office and division approving the Plan; and (v) all of
the representations and warranties contained in Section 2 of this Agreement
are true and correct, with the same force and effect as though expressly
made on the Closing Date.
(f) At the Closing Date, Trident shall receive, among other documents, (i)
copies of the letters from the Office authorizing the use of the Prospectus
and the Proxy Statement, (ii) a copy of the order of the Commission
declaring the Registration Statement effective; (iii) copies of the letters
from the Office evidencing the corporate existence of the Bank; (iv) a copy
of the letter from the appropriate Georgia authority evidencing the
incorporation (and, if generally available from such authority, good
standing) of the Company; (v) a copy of the Company's
19
charter certified by the appropriate Pennsylvania governmental authority;
and, (vi) if available, a copy of the letter from the Office approving the
Bank's Stock Charter.
(g) As soon as available after the Closing Date, Trident shall receive a
copy of the Bank's Certified Stock Charter executed by the appropriate
federal governmental authority.
(h) Concurrently with the execution of this Agreement, Trident
acknowledges receipt of a letter from Xxxxx, Xxxxxx and Company 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 Xxxxx, Xxxxxx and
Company LLP, independent certified public accountants, dated the Closing
Date and addressed to Trident and the Company, confirming the statements
made by them in the letter delivered by them pursuant to the preceding
subsection as of a specified date not more than five (5) days prior to the
Closing Date.
All such opinions, certificates, letters and documents shall be in compliance
with the provisions hereof only if they are, in the reasonable opinion of
Trident and its counsel, satisfactory to Trident and its counsel. Any
certificates signed by an officer or director of the Company or the Bank
prepared for Trident's reliance and delivered to Trident or to counsel for
Trident shall be deemed a representation and warranty by the Company and the
Bank to Trident as to the statements made therein. If any condition to
Trident's obligations hereunder to be fulfilled prior to or at the Closing Date
is not so fulfilled, Trident may terminate this Agreement or, if Trident so
elects, may waive in writing any such conditions which have not been fulfilled,
or may extend the time of their fulfillment. If Trident terminates this
Agreement as aforesaid, the Company and the Bank shall reimburse Trident for its
expenses as provided in Section 3(b) hereof.
8. Indemnification.
---------------
(a) The Company and the Bank jointly and severally agree to indemnify and
hold harmless Trident, its officers, directors and employees and each
person, if any, who controls Trident within the meaning of Section 15 of
the Act or Section 20(a) of the Exchange Act, against any and all loss,
liability, claim, damage and expense whatsoever and shall further promptly
reimburse such persons for any legal or other expenses reasonably incurred
by each or any of them in
20
investigating, preparing to defend or defending against any such action,
proceeding or claim (whether commenced or threatened) arising out of or
based upon (A) any misrepresentation by the Company or the Bank in this
Agreement or any breach of warranty by the Company or the Bank with respect
to this Agreement or arising out of or based upon any untrue or alleged
untrue statement of a material fact or the omission or alleged omission of
a material fact required to be stated or necessary to make not misleading
any statements contained in (i) the Registration Statement or the
Prospectus or (ii) any application (including the Form AC and the Form H-
(e)1-S) or other document or communication (in this Section 8 collectively
called "Application") prepared or executed by or on behalf of the Company
or the Bank or based upon written information furnished by or on behalf of
the Company or the Bank, whether or not filed in any jurisdiction, to
effect the Conversion or qualify the Shares under the securities laws
thereof or filed with the Office or Commission, unless such statement or
omission was made in reliance upon and in conformity with written
information furnished to the Company or the Bank with respect to Trident by
or on behalf of Trident expressly for use in the Prospectus or any
amendment or supplement thereof or in any Application, as the case may be,
or (B) the participation by Trident in the Conversion. This indemnity shall
be in addition to any liability the Company and the Bank may have to
Trident otherwise.
(b) The Company shall indemnify and hold Trident harmless for any
liability whatsoever arising out of (i) the Allocation Instructions or (ii)
any records of account holders, depositors, borrowers and other members of
the Bank delivered to Trident by the Bank or its agents for use during the
Conversion.
(c) Trident agrees to indemnify and hold harmless the Company and the Bank,
their officers, directors and employees and each person, if any, who
controls the Company or the Bank within the meaning of Section 15 of the
Act or Section 20(a) of the Exchange Act, to the same extent as the
foregoing indemnity from the Company and the Bank to Trident, but only with
respect to (A) statements or omissions, if any, made in the Prospectus or
any amendment or supplement thereof, in any Application or to a purchaser
of the Shares in reliance upon, and in conformity with, written information
furnished to the Company or the Bank with respect to Trident by or on
behalf of Trident expressly for use in the Prospectus or in any
Application; (B) any misrepresentation by Trident in Section 2(b) of this
Agreement; or (C) any liability of the Company or the Bank which is found
in a final judgment by a court of competent jurisdiction (not subject to
further appeal) to have
21
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 notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party, and after notice from
the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party will not be liable to
such indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defense thereof other than the reasonable cost of investigation except as
otherwise provided herein. In the event the indemnifying party elects to
assume the defense of any such action and retain counsel acceptable to the
indemnified party, the indemnified party may retain additional counsel, but
shall bear the fees and expenses of such counsel unless (i) the
indemnifying party shall have specifically authorized the indemnified party
to retain such counsel or (ii) the parties to such suit include such
indemnifying party and the indemnified party, and such indemnified party
shall have been advised by counsel that one or more material legal defenses
may be available to the indemnified party which may not be available to the
indemnifying party, in which case the indemnifying party shall not be
entitled to assume the defense of such suit notwithstanding the
indemnifying party's obligation to bear the fees and expenses of such
counsel. An indemnifying party against whom indemnity may be sought shall
not be liable to indemnify an indemnified party under this Section 8 if any
settlement of any such action is effected without such indemnifying party's
consent. To the extent required by law, this Section 8 is subject to and
limited by the provisions of Section 23A.
9. Contribution. In order to provide for just and equitable contribution in
------------
circumstances in which the indemnity agreement provided for in Section 8 above
is for any reason held to be unavailable to Trident, the Company and/or the Bank
other than in accordance with its terms, the Company or the Bank and Trident
22
shall contribute to the aggregate losses, liabilities, claims, damages, and
expenses of the nature contemplated by said indemnity agreement incurred by the
Company or the Bank and Trident (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company and the Bank on the one
hand and Trident on the other from the offering of the Shares or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above, but also the relative fault of the Company or
the Bank on the one hand and Trident on the other hand in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or judgments, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Bank on
the one hand and Trident on the other shall be deemed to be in the same
proportions as the total net proceeds from the Conversion received by the
Company and the Bank bear to the total commissions received by Trident under
this Agreement. The relative fault of the Company or the Bank on the one hand
and Trident on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Bank or by Trident and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the Bank and Trident agree that it would not be just and
equitable if contribution pursuant to this Section 9 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by the indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 9, Trident shall not be required
to contribute any amount in excess of the amount by which commissions owed
Trident pursuant to this Agreement exceeds the amount of any damages which
Trident has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who is not guilty of such
fraudulent misrepresentation. To the extent required by law, this Section 8 is
subject to and limited by the provisions of Section 23A.
10. Survival of Agreements, Representations and Indemnities. The respective
-------------------------------------------------------
23
indemnities of the Company and the Bank and Trident and the representation and
warranties of the Company and the Bank and of Trident set forth in or made
pursuant to this Agreement shall remain in full force and effect, regardless of
any termination or cancellation of this Agreement or any investigation made by
or on behalf of Trident or the Company or the Bank or any controlling person or
indemnified party referred to in Section 8 hereof, and shall survive any
termination or consummation of this Agreement and/or the issuance of the Shares,
and any legal representative of Trident, the Company, the Bank and any such
controlling persons shall be entitled to the benefit of the respective
agreements, indemnities, warranties and representations.
11. Termination. Trident may terminate this Agreement by giving the notice
-----------
indicated below in this Section at any time after this Agreement becomes
effective as follows:
(a) If any domestic or international event or act or occurrence has
materially disrupted the United States securities markets such as to make
it, in Trident's reasonable opinion, impracticable to proceed with the
offering of the Shares; or if trading on the New York Stock Exchange shall
have suspended; or if the United States shall have become involved in a war
or major hostilities; or if a general banking moratorium has been declared
by a state or federal authority which has material effect on the Bank or
the Conversion; or if a moratorium in foreign exchange trading by major
international banks or persons has been declared; or if there shall have
been a material change in the capitalization, condition or business of the
Company, or if the Bank shall have sustained a material or substantial loss
by fire, flood, accident, hurricane, earthquake, theft, sabotage or other
calamity or malicious act, whether or not said loss shall have been
insured; or if there shall have been a material adverse change in the
condition or prospects of the Company, the Bank or the Subsidiary.
(b) If Trident elects to terminate this Agreement as provided in this
Section, the Company and the Bank shall be notified promptly by Trident by
telephone or telegram, confirmed by letter.
(c) If this Agreement is terminated by Trident for any of the reasons set
forth in subsection (a) above, and to fulfill its obligations, if any,
pursuant to Sections 3, 6, 8(a) and 9 of this Agreement and upon demand,
the Company and the Bank shall pay Trident the full amount so owing
thereunder.
(d) The Bank may terminate the Conversion in accordance with the terms of
the Plan. Such termination shall be
24
without liability to any party, except that the Company and the Bank shall
be required to fulfill their obligations, if any, pursuant to Sections
3(b), 6, 8(a) and 9 of this Agreement.
12. Notices. All communications hereunder, except as herein otherwise
-------
specifically provided, shall be in writing and if sent to Trident shall be
mailed, delivered or telegraphed and confirmed to Trident Securities, Inc., 0000
Xxx Xxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Mr. R. Xxx
Xxxxxxx, Xx. (with a copy to Xxxxxxx, Best & Friedrich, 000 Xxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxxx, XX 00000, Attention: W. Xxxxxxx Xxxxxxx, Esquire) and if
sent to the Company or the Bank, shall be mailed, delivered or telegraphed and
confirmed to Indian Village Bank, Inc., and Indian Village Community Bank, 000
Xxxxx Xxxxxx Xxxxxx Xxxxxxxxxxxx, Xxxx 00000, Attention: Xxxxx X. Xxxxxx,
President (with a copy to Xxxxxxx, Xxxxxx & Xxxxxxxx LLP, 0000 Xxxxxxxxx Xxxxxx,
X.X., Xxxxxxxxxx, XX 00000, Attention: Xxxxxx X. Xxxxxxxxx, Esquire).
13. Parties. This Agreement shall inure solely to the benefit of, and shall be
-------
binding upon, Trident, the Company, the Bank and the controlling and other
persons referred to in Section 8 hereof, and their respective successors, legal
representatives and assigns, and no other person shall have or be construed to
have any legal or equitable right, remedy or claim under or in respect of or by
virtue of this Agreement or any provision herein contained; provided, however,
that the Bank and Company specifically consent to any assignment by Trident of
its rights and obligations hereunder to McDonald Investments, Inc.
14. Construction. Unless governed by preemptive federal law, this Agreement
------------
shall be governed by and construed in accordance with the substantive laws of
Georgia.
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.
INDIAN VILLAGE BANK, INC. INDIAN VILLAGE COMMUNITY BANK, INC.
By: By:
------------------ ------------------
Xxxxx X. Xxxxxx Xxxxx X. Xxxxxx
President President
25
Date: April ____, 1999 Date: April ___, 1999
Agreed to and accepted:
TRIDENT SECURITIES, INC.
By:
-------------------
Date: April ____, 1999
26
Exhibit A
Trident Securities, Inc. is a registered selling agent in the jurisdictions
--
listed below:
Alabama Missouri
Alaska Montana
Arizona Nebraska
Arkansas Nevada
California New Hampshire
Colorado New Jersey
Connecticut New Mexico
Delaware New York
District of Columbia North Carolina
Florida North Dakota (Trident Inc.
Georgia Securities, only, no agents)
Ohio
Idaho Oklahoma
Illinois Oregon
Indiana Pennsylvania
Iowa Rhode Island
Kansas South Carolina
Kentucky Tennessee
Louisiana Texas
Maine Vermont
Maryland Virginia
Massachusetts Washington
Michigan Tennessee
Minnesota Utah
Mississippi Wisconsin
Wyoming
Trident Securities, Inc. is not a registered selling agent in the jurisdictions
listed below:
Hawaii
South Dakota
Exhibit B
Exhibit C
Exhibit D
27
Exhibit B
Form of Opinion
___ _, 1999
Trident Securities, Inc.
0000 Xxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxx, X.X. 00000
Re: Indian Village Bancorp, Inc.
Ladies and Gentlemen:
We have acted as special counsel for Indian Village Bancorp, Inc., a
Pennsylvania corporation (the "Company") and Indian Village Community Bank, a
federally chartered, federally-insured mutual savings bank (the "Bank"), in
connection with the preparation and filing with the Securities and Exchange
Commission (the "SEC" or the "Commission") under the Securities Act of 1933, as
amended (the "Securities Act" or the "1933 Act") of the Company's Registration
Statement on Form SB-2 (No. ____________) as amended, relating to the offering
of the Company's common stock (the "Common Stock") in Subscription, Community
and Syndicated Community Offerings (hereinafter the "Offerings") in connection
with the conversion of the Bank from a federally-chartered mutual savings bank
to a federally-chartered stock savings bank (the "Conversion") and the issuance
of the Bank's capital stock to the Company pursuant to the Bank's plan of
conversion, as approved by the Office of Thrift Supervision ("OTS") on
__________________, 1999 (the "Plan of Conversion" or the "Plan"). Such
registration statement, as amended when it last became effective, is herein
called the "Registration Statement," and the related prospectus, as filed with
the SEC pursuant to Rule 424(b) of the Securities Act, is herein called the
"Prospectus." This opinion is furnished pursuant to Section 7(a) of the Sales
Agency Agreement dated April ___, 1999 (the "Agreement") between the Company,
the Bank and you. Reference to the Agreement is made for the meaning of
capitalized terms used herein without definition. References herein to the
Pennsylvania Corporations and Unincorporated Associations Act (PCUAA") shall
include judicial and regulatory interpretations thereof as well as all
applicable amendments thereto.
We have examined originals, or copies identified to our satisfaction, of
such corporate records of the Bank and the Company and have made such
examinations of law as we have deemed relevant. In our examination, we have
assumed, but have not verified (i) the genuineness of all signatures, (ii) the
authenticity of all
Trident Securities, Inc.
___ __, 1999
Page 2
documents submitted to us as originals, (iii) the conformity with the originals
of all documents supplied to us as copies, (iv) the accuracy and completeness of
all corporate records and documents and of all certificates and statements of
fact, in each case given or made available to us by the Company or the Bank, and
(v) that the Agreement has been duly and validly executed and delivered by, and
constitutes the legal, valid, binding and enforceable agreement of, each party
thereto other than the Company and the Bank. We also have assumed that the
certificates for shares of Common Stock will be prepared by the Transfer Agent
in accordance with instructions of the Company and the Bank, and the
certificates will conform to the specimen thereof examined by us and will have
been duly signed and countersigned, all of which we are not independently
verifying by inspection. We express no opinion as to matters of law other than
the federal laws of the United States and Pennsylvania law. As to factual
matters set forth therein, we have relied solely upon certificates from officers
of the Bank and the Company and in certain circumstances certificates and other
written documents from public officials and government agencies and departments,
and we have assumed the accuracy and authenticity of such certificates and
documents.
In addition, we have assumed as to all parties other than the Bank and the
Company, and to the extent relevant to the opinions hereinafter expressed, that
each such other party has duly authorized, executed and delivered each document
to which it is a party, that each such document constitutes the legal, valid and
binding obligation of each such other party thereto, enforceable against such
other party in accordance with its terms, and that each such other party to each
such document has given and delivered the consideration contemplated by such
document in favor of the Company or the Bank.
Whenever in our opinion we indicate that the existence or absence of facts
is based on our knowledge, we are referring to the actual knowledge of Xxxxxxx,
Xxxxxx & Xxxxxxxx, LLP attorneys who have given substantive attention to matters
concerning the Bank or the Company during the course of our representation of
them in connection with the transactions contemplated by the Agreement, which
knowledge has been obtained by such attorneys in their capacity as such. Except
as expressly set forth herein, we have not undertaken any independent
investigation to determine the existence or absence of such facts, and no other
inference as to our knowledge concerning such facts shall be drawn.
Trident Securities, Inc.
___ __, 1999
Page 3
On the basis of the foregoing and having regard for such legal
considerations as we deem relevant, it is our opinion that:
(i) The Company has been duly incorporated and is validly existing as a
corporation under the laws of the State of Pennsylvania and has 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 Company is qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which its
ownership or leasing of properties or the conduct of its business requires
such qualification except where the failure to so qualify would not have a
material adverse effect on the business, operations or financial condition
of the Company and the Bank taken as a whole.
(ii) The Bank is a duly organized, validly existing federally-chartered
savings bank in stock form of organization, duly authorized to conduct its
business and own its property as described in the Registration Statement
and the Prospectus; and the Bank is in good standing with the OTS and is
duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which its ownership of property or leasing
of properties or the conduct of its business requires such qualification
unless the failure to be so qualified in one or more such jurisdictions
would not have a material adverse effect on the condition, financial or
otherwise, or the business, operation, income, or prospects of the Bank.
(iii) The Bank is a member in good standing of the Federal Home Loan Bank
System. The deposit accounts of the Bank are insured by the SAIF up to the
maximum amount allowed under law; and, to the best of our knowledge after
due inquiry, no proceedings for the termination or revocation of such
insurance are pending or threatened. A liquidation account has been duly
established in accordance with the requirements of the Plan and the
Savings Institutions Regulations, and the description of the liquidation
account as set forth in the Registration Statement and the Prospectus
under the caption "The Conversion" has been reviewed by us and is accurate
in all material respects.
(iv) The authorized, issued and outstanding capital stock of the Company
is within the range set forth in the Registration Statement and the
Prospectus under the caption "Capitalization," and one share of Common
Stock has been issued prior to the Closing Date; the Shares issued in
connection with the Offerings have been
Trident Securities, Inc.
___ __, 1999
Page 4
duly authorized and validly issued and are fully paid and nonassessable;
that good title to the Shares has been transferred from the Company to the
purchasers thereof against payment therefor subject to any action by such
purchasers with respect thereto; that such Shares are the only shares of
capital stock of the Company outstanding; and that the issuance of the
Shares is not subject to preemptive rights.
(v) All of the issued and outstanding capital stock of the Bank has been
duly authorized and validly issued and is fully paid, nonassessable and
owned beneficially and of record by the Company, free and clear of any
lien, encumbrance, claim or other restriction.
(vi) The Agreement and the consummation of the transactions contemplated
thereunder have been duly and validly authorized, executed and delivered by
the Company and the Bank and the Agreement is the legal, valid and binding
agreement of the Company and the Bank, enforceable in accordance with its
terms, except as the enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally, and subject, as
to the enforcement of remedies, to general equity principles, and except as
the rights of indemnification and contribution may be limited under
applicable law.
(vii) The Plan has been duly adopted by the required vote of the Directors
of the Company and the Directors and members of the Bank, and no action has
been taken, is pending or, to the best of our knowledge, is threatened to
revoke such approvals.
(viii) The Application for Conversion, Form AC, as filed with the OTS was
in the form required by the regulations of the OTS and was complete in all
material respects; the Application for Conversion has been approved by the
OTS and the Prospectus and the Proxy Statement have been authorized for use
by the OTS. The OTS has authorized the conversion of the Bank from mutual
to stock form. No action has been taken, is pending or, to the best of our
knowledge, threatened to revoke such approval and authorizations.
(ix) The OTS has approved registration of the Company as a savings and
loan holding company and the Company's acquisition of the Bank pursuant to
the Plan and as described in the Application for Conversion; no action has
been taken, is pending, or, to the best of our knowledge following due
inquiry, threatened to revoke
Trident Securities, Inc.
___ __, 1999
Page 5
such approval. The Bank's Employee Stock Ownership Plan is not required to
register as a holding company as a result of its acquisition of shares of
common stock of the Company in the Conversion.
(x) No further approval, registration, authorization, consent or other
order of any regulatory agency, public board or body is required in
connection with the execution and delivery of the Agreement, the issuance
of the Shares or the consummation of the Conversion. To the best of our
knowledge, the Conversion has been consummated in all material respects in
accordance with all applicable provisions and requirements of the PCUAA and
the OTS, as well as those of all other applicable federal and state laws
and all rules and regulations promulgated thereunder.
(xi) The Registration Statement is effective under the 1933 Act, and no
stop order suspending the effectiveness of the Registration Statement has
been issued under the 1933 Act or proceedings therefor initiated or, to the
best of our knowledge, threatened by the Commission or any state authority.
(xii) At such time as the Registration Statement became effective, (i) the
Registration Statement (and any amendment or supplement thereto) (other
than the financial statements and other financial and statistical date
included therein, as to which no opinion is expressed), complied as to form
in all material respects with the requirements of the 1933 Act and the 1933
Act Regulations and (ii) the Prospectus (other than the financial
statements and other financial and statistical data included therein, as to
which no opinion is expressed) complied as to form in all material respects
with the requirements of the 1933 Act, the 1933 Act Regulations, the OTS,
and federal law. At the time the Application for Conversion, including the
Prospectus contained therein, was approved by the OTS, the Application for
Conversion, including the Prospectus contained therein (and any amendment
or supplement thereto), complied as to form in all material respects with
the requirements of the OTS, federal law and all applicable rules and
regulations promulgated thereunder (other than the financial statements and
other financial and statistical data included therein, as to which no
opinion is expressed).
(xiii) The information in the Registration Statement and the Prospectus,
under the captions "Supervision and Regulation," "The Conversion,"
"Taxation," "Anti-takeover Provisions Affecting First Community and
Community Savings" and "Description of Capital
Trident Securities, Inc.
___ __, 1999
Page 6
Stock", to the extent that such information constitutes matters of law,
summaries of legal matters, or proceedings, or legal conclusions has been
reviewed by us and is correct in all material respects. The descriptions of
the Conversion process in the Registration Statement and the Prospectus
have been reviewed by us and are correct in all material respects. Further,
the information under the caption "The Conversion - Effects of Conversion
to Stock Form on Depositors and Borrowers of Indian Village - Tax Effects"
has been reviewed by us and constitutes a correct summary, in all material
respects, of the opinion rendered by us to the Bank and the Company with
respect to the federal and state tax consequences of the Conversion.
(xiv) The terms and provisions of the Shares conform to the description
thereof contained in the Registration Statement and the Prospectus, and the
form of certificate used to evidence the Shares is in due and proper form.
(xv) There are no legal or governmental proceedings pending or, to the
best of our knowledge, threatened which are required to be disclosed in the
Registration Statement or the Prospectus, other than those disclosed
therein, and all pending legal and governmental proceedings to which the
Company or the Bank is a party or to which any of their property is subject
which are not described in the Registration Statement or the Prospectus,
including ordinary routine litigation incidental to their respective
businesses, are, considered in the aggregate, not material to the business,
operations or financial condition of the Company and the Bank taken as a
whole.
(xvi) To the best of our knowledge, there are no contracts, indentures,
mortgages, loan agreements, notes, leases or other instruments required to
be described or referred to in the Registration Statement and the
Prospectus or required to be filed as exhibits thereto other than those
described or referred to therein or filed as exhibits thereto. The
description in the Application for Conversion, the Registration Statement
and the Prospectus of such documents and exhibits is accurate, in all
material respects, and fairly presents the information required to be
shown.
(xvii) The Bank and the Company have conducted the Conversion in
accordance with the Plan. The Plan complies with the laws and regulations
of the OTS in all material respects. The Plan and the Application for
Conversion comply as to form in all material
Trident Securities, Inc.
___ __, 1999
Page 7
respects with all applicable laws, rules, regulations, decisions and orders
including, but not limited to, all federal statutes, the laws of Ohio and
Pennsylvania, and all other applicable laws, regulations, decisions and
orders, including all material and applicable terms, conditions,
requirements and provisions precedent to the Conversion imposed upon them
by the OTS and the Federal Deposit Insurance Corporation ("FDIC"); no order
has been issued by the OTS, the Commission, the FDIC, or any state
authority to suspend the Subscription and Community Offering or the use of
the Prospectus, and no action for such purposes has been instituted or, to
the best of our knowledge, threatened by the OTS, the Commission, the FDIC,
or any state authority and, to the best of our knowledge, no person has
sought to obtain regulatory or judicial review of the final action of the
Administrator approving the Plan, the Application for Conversion or the
Prospectus.
(xviii) To the best of our knowledge, the Company and the Bank have
obtained all material licenses, permits and other governmental
authorizations currently required for the conduct of their respective
businesses, and all such material licenses, permits and other governmental
authorizations are in full force and effect, and the Company and the Bank
are in all material respects complying therewith.
(xix) Neither the Company nor the Bank is in violation of its respective
articles of incorporation or charter (and the Bank will not be in violation
of its charter in stock form upon consummation of the Conversion). To the
best of our knowledge, neither the Company nor the Bank is in violation of
any material obligation, agreement, covenant or condition contained in any
material contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which it is a party or by which it or its property may
be bound; to the best of our knowledge, the execution, delivery and
performance of this Agreement will not (i) conflict with, result in a
breach of, or constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under any contract, lease or
other instrument to which the Company or the Bank is a party or in which
the Company or the Bank has a beneficial interest, or any applicable law,
rule, regulation or order, which would in any such case have a material
adverse effect on the business, operations or financial condition of the
Company and the Bank taken as a whole; (ii) violate any authorization,
approval, judgment, decree, order, statute, rule or regulation applicable
to the Company or the Bank, which would in any such case have a material
adverse effect on the business, operations or
Trident Securities, Inc.
___ __, 1999
Page 8
financial condition of the Company and the Bank taken as a whole; or (iii)
with the exception of the liquidation account established in the
Conversion, result in the creation of any material lien, charge or
encumbrance upon any property of the Company or the Bank. The execution,
delivery and performance of this Agreement will not result in any violation
of the provisions of the respective articles of incorporation or bylaws of
the Company or the Bank or any applicable law, regulation or order. All
provisions of the Bank's charter in mutual form and in stock form comply in
all respects with federal law including, without limitation, and the
requirements of the OTS and FDIC and their respective regulations, and all
provisions of the Company's articles of incorporation and bylaws comply in
all respects with the laws of the State of Pennsylvania.
(xx) To the best of our knowledge following due inquiry of the officers
and directors of the Company and the Bank, the Company and the Bank have
good and marketable title to all properties and assets which are material
to the business of the Company and the Bank and to those properties and
assets described in the Registration Statement as owned by them, free and
clear of all liens, charges, encumbrances or restrictions, except such as
are described in the Registration Statement or are not material in relation
to the business of the Company and the Bank considered as one enterprise,
and all of the leases and subleases material to the business of the Company
and the Bank under which the Company and the Bank hold properties as
described in the Registration Statement, are in full force and effect;
except as set forth in the Registration Statement and the Prospectus, to
the best of our knowledge following due inquiry of the officers and
directors of the Company and the Bank, neither the Company nor the Bank is
an owner or operator or otherwise responsible party for purposes of (S)107
of the Comprehensive Environmental Response Compensation and Liability Act,
42 U.S.C. (S)9607, or otherwise have responsibility for the clean-up or
remediation of any hazardous substances (including petroleum) under any
state or federal law.
(xxi) To the best of our knowledge, the Company and the Bank are not in
violation of any directive from the OTS or FDIC to make any material change
in the method of conducting their businesses; to the best of our knowledge,
the Bank has conducted and is conducting its business so as to comply in
all material respects with all applicable statutes and regulations
(including, without limitation, regulations, decisions, directives and
orders of the
Trident Securities, Inc.
___ __, 1999
Page 9
OTS and the FDIC), except as otherwise disclosed in the Registration
Statement and the Prospectus.
We assume no obligation to advise you of any events that occur
subsequent to the date of this opinion. This opinion is being furnished to
you solely for your benefit and may not be relied upon by any other person
or for any other purpose, and it should not be quoted in whole or in part
or otherwise referred to and it should not be filed with or furnished to
any governmental agency or other person or entity without the prior written
consent of this firm.
Sincerely,
Xxxxxxx, Xxxxxx & Xxxxxxxx, LLP
Exhibit C
Form of Opinion
___ __, 1999
Trident Securities, Inc.
0000 Xxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxx, X.X. 00000
Re: Indian Village Bancorp, Inc.
Ladies and Gentlemen:
We have acted as special counsel for Indian Village Bancorp, Inc. (the
"Company") and Indian Village Community Bank, a federally-chartered, federally-
insured, mutual savings bank (the "Bank"), in connection with the preparation
and filing with the Securities and Exchange Commission (the "SEC" or the
"Commission") under the Securities Act of 1933, as amended (the "Securities
Act"), of the Company's Registration Statement on Form SB-2 (No. ____________),
as amended, relating to the offering of the Company's common stock (the "Common
Stock") in Subscription, Community and Syndicated Community Offerings
(hereinafter the "Offerings") in connection with the conversion of the Bank from
a federally-chartered mutual savings bank to a federally-chartered stock savings
bank (the "Conversion") and the issuance of the Bank's capital stock to the
Company pursuant to the Bank's plan of conversion, as amended and approved by
the Office of Thrift Supervision (the "OTS") on ______________, 1999 (the "Plan
of Conversion" or the "Plan"). Such registration statement, as amended when it
last became effective, is herein called the "Registration Statement," and the
related prospectus, as filed with the SEC pursuant to Rule 424(b) of the
Securities Act, is herein called the "Prospectus." This letter is furnished
pursuant to Section 7(b) of the Sales Agency Agreement dated April ____, 1999
(the "Agreement") between the Company, the Bank and you. Reference to the
Agreement is made for the meaning of capitalized terms used herein without
definition.
During the course of the preparation of the Application for Conversion,
Form AC, and the Registration Statement, we participated in conferences with
representatives of the Company and the Bank and its independent certified public
accountants and with your representatives, at which conferences the contents of
the Application for Conversion and the Registration Statement were discussed.
Based on our participation in the above-referenced conferences, nothing has come
to our attention that would lead us to believe that the Application for
Conversion and the Registration Statement, as amended (except as to financial
statements, notes to
financial statements, financial tables and other financial and statistical data
contained therein with respect to which we express no opinion), at the time each
became effective and on the Closing Date, 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 therein, in light of the circumstances in
which they were made, not misleading or that the Prospectus, as amended (except
as to financial statements, notes to financial statements, financial tables and
other financial and statistical data contained therein with respect to which we
express no opinion), at the time the Prospectus became effective or at the time
any amendment to the Prospectus was filed with the Commission or OTS or
transmitted to the Commission, OTS, or any other regulatory authority whose
approval was or is required, for filing or on the Closing Date, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading. In making the
representations set forth in this paragraph, we do not represent that we have
independently determined or otherwise verified the accuracy and completeness of
information with respect to the Bank and the Company and the statements
contained in the Application for Conversion, the Registration Statement and the
Prospectus, or any amendments thereto.
We assume no obligation to advise you of any events that occur subsequent
to the date of this opinion. This opinion is being furnished to you solely for
your benefit and may not be relied upon by any other person or for any other
purpose, and it should not be quoted in whole or in part or otherwise referred
to and it should not be filed with or furnished to any governmental agency or
other person or entity without the prior written consent of this firm.
Sincerely,
Xxxxxxx, Xxxxxx & Xxxxxxxx LLP
