EXHIBIT 1.1
Sistersville Bancorp, Inc.
510,000 to 793,500 Shares
Common Stock
(Par Value $.10 Per Share)
$10.00 Per Share
SALES AGENCY AGREEMENT
----------------------
Trident Securities, Inc.
0000 Xxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Dear Sirs:
Sistersville Bancorp, Inc., a Delaware-chartered corporation (the
"Company"), and First Federal Savings and Loan Association of Sistersville, a
federally chartered and insured mutual savings association (the "Association"),
hereby confirm, as of ________ ___, 1997, their respective agreements with
Trident Securities, Inc. ("Trident"), a broker-dealer registered with the
Securities and Exchange Commission ("Commission") and a member of the National
Association of Securities Dealers, Inc. ("NASD"), as follows:
1. Introductory. The Association intends to convert from a federally
chartered mutual savings association to a federally chartered stock savings
association (to be known as First Federal Savings Bank) as a wholly owned
subsidiary of the Company (together with the Offerings, as defined below, the
issuance of shares of common stock of the Association to the Company and the
incorporation of the Company, the "Conversion") pursuant to a plan of conversion
adopted on December 5, 1996 (as amended, the "Plan"). In accordance with the
Plan, the Company is offering shares of its common stock, par value $.10 per
share (the "Shares" and the "Common Stock"), pursuant to nontransferable
subscription rights in a subscription offering (the "Subscription Offering") to
certain depositors and borrowers of the Association and to the Association's
tax-qualified employee benefit plans (i.e., the Association'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 Tyler County,
West Virginia (the "Community Offering"), subject to the right of the Company
and the Association, in their absolute discretion, to reject orders in the
Community Offering in whole or in part. Shares not sold in the Subscription
Offering or otherwise in the Community Offering may be offered to certain
members of the general public as part of the Community Offering by a group of
broker-dealers (the "Syndicated Community Offering") (the Subscription Offering
and, if any, the Community and Syndicated Community Offerings are sometimes
referred to collectively as the "Offerings"). In the Offerings, the Company is
offering between 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
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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 10,000 Shares.
The Company and the Association have been advised by Trident that it will
utilize its best efforts in assisting the Company and the Association with the
sale of the Shares in the Offerings, 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 Association and the Shares.
2. Representations and Warranties.
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(a) The Company and the Association jointly and severally
represent and warrant to Trident that:
(i) The Company has filed with the Commission a registration
statement, including exhibits and an amendment or amendments
thereto, on Form S-1 (No. __________), including a prospectus
relating to the Offerings, for the registration of the Shares under
the Securities Act of 1933, as amended (the "Act"); and such
registration statement has become effective under the Act and no
stop order has been issued with respect thereto and no proceedings
therefor have been initiated or, to the Company's best knowledge,
threatened by the Commission. Except as the context may otherwise
require, such registration statement, as amended or supplemented, on
file with the Commission at the time the registration statement
became effective, including the prospectus, financial statements,
schedules, exhibits and all other documents filed as part thereof,
as amended and supplemented, is herein called the "Registration
Statement," and the prospectus, as amended or supplemented, on file
with the Commission at the time the Registration Statement became
effective is herein called the "Prospectus," except that if the
prospectus filed by the Company with the Commission pursuant to Rule
424(b) of the general rules and regulations of the Commission under
the Act (together with the enforceable published policies and
actions of the Commission thereunder, the "SEC Regulations") differs
from the form of prospectus on file at the time the Registration
Statement became effective, the term "Prospectus" shall refer to the
Rule 424(b) prospectus from and after the time it is filed with or
mailed for filing to the Commission and shall include any amendments
or supplements thereto from and after their dates of effectiveness
or use, respectively. If any Shares remain unsubscribed following
completion of the Subscription Offering and, if any, the Community
Offering, the Company (i) will promptly file with the Commission a
post-effective amendment to such Registration Statement relating to
the results of the Subscription Offering and, if
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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 Association has filed an Application for Approval of
Conversion on Form AC, including exhibits (as amended or
supplemented, the "Form AC" and together with the Form H-(e)1-S
referred to below, the "Conversion Application") with the Office of
Thrift Supervision (the "Office") under the Home Owners' Loan Act,
as amended (the "HOLA") and the enforceable rules and regulations,
including published policies and actions, of the Office thereunder
(the "OTS Regulations"), which has been approved by the Office; and
the Prospectus and the proxy statement for the solicitation of
proxies from members for the special meeting to approve the Plan
(the "Proxy Statement") included as part of the Form AC have been
approved for use by the Office. No order has been issued by the
Office preventing or suspending the use of the Prospectus or the
Proxy Statement; and no action by or before the Office revoking such
approvals is pending or, to the Association's best knowledge,
threatened. The Company has filed with the Office the Company's
application on Form H- e(1)-S promulgated under the savings and loan
holding company provisions of the HOLA and the OTS Regulations and
has received approval of its acquisition of the Association from the
Office.
(iii) At the date of the Prospectus and at all times
subsequent thereto through and including the Closing Date (i) the
Registration Statement and the Prospectus (as amended or
supplemented, if amended or supplemented) complied with the Act and
the Regulations, (ii) the Registration Statement (as amended or
supplemented, if amended or supplemented) did not contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and (iii) the Prospectus (as amended or
supplemented, if amended or supplemented) did not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made,
not misleading. Representations or warranties in this subsection
shall not apply to statements or omissions made in reliance upon and
in conformity with written information furnished to the Company or
the Association relating to Trident by or on behalf of Trident
expressly for use in the Registration Statement or Prospectus.
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(iv) The Company has been duly organized as a Delaware
corporation, and the Association has been duly organized as a mutual
savings association under the laws of the United States, and each of
them is validly existing and in good standing under the laws of the
jurisdiction of its organization with full power and authority to
own its property and conduct its business as described in the
Registration Statement and Prospectus; the Association is a member
in good standing of the Federal Home Loan Bank of Pittsburgh; and
the deposit accounts of the Association are insured by the Savings
Association Insurance Fund ("SAIF") administered by the Federal
Deposit Insurance Corporation ("FDIC") up to the applicable legal
limits. Each of the Company and the Association is not required to
be qualified to do business as a foreign corporation in any
jurisdiction where non-qualification would have a material adverse
effect on the Company and the Association, taken as a whole. The
Association does not own equity securities of or an equity interest
in any business enterprise except as described in the Prospectus.
Upon amendment of the Association's charter and bylaws as provided
in the rules and regulations of the Office and completion of the
sale by the Company of the Shares as contemplated by the Prospectus,
(i) the Association will be converted pursuant to the Plan to a
federally chartered capital stock savings 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 Association will be owned of record and
beneficially by the Company, and (iii) the Company will have no
direct subsidiaries other than the Association.
(v) The Association has good, marketable and insurable title
to all assets material to its business and to those assets described
in the Prospectus as owned by it, free and clear of all material
liens, charges, encumbrances or restrictions, except for liens for
taxes not yet due, except as described in the Prospectus and except
as could not in the aggregate have a material adverse effect upon
the operations or financial condition of the Association; and all of
the leases and subleases material to the operations or financial
condition of the Association, under which it holds properties,
including those described in the Prospectus, are in full force and
effect as described therein.
(vi) The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly
and validly authorized by all necessary actions on the part of each
of the Company and the Association, and this Agreement is a valid
and binding obligation with valid execution and delivery of each of
the Company and the Association, enforceable in accordance with its
terms (except as the enforceability thereof may be limited by
bankruptcy, insolvency, moratorium, reorganization or similar laws
relating to or affecting the enforcement of creditors' rights
generally or the rights of creditors of savings and loan holding
companies the accounts of whose
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subsidiaries are insured by the FDIC or by general equity
principles, regardless of whether such enforceability is considered
in a proceeding in equity or at law, and except to the extent that
the provisions of Sections 8 and 9 hereof may be unenforceable as
against public policy or pursuant to Section 23A of the Federal
Reserve Act, 12 U.S.C. Section 371c ("Section 23A")).
(vii) There is no litigation or governmental proceeding
pending or, to the best knowledge of the Company or the Association,
threatened against or involving the Company, the Association or any
of their respective assets which individually or in the aggregate
would reasonably be expected to have a material adverse effect on
the condition (financial or otherwise), results of operations and
business, including the assets and properties, of the Company and
the Association, taken as a whole.
(viii) The Company and the Association have received the
opinions of Xxxxxxx, Spidi, Sloane & Xxxxx, P.C. with respect to
federal tax consequences of the Conversion, and of S.R. Xxxxxxxxx,
X.X., with respect to West Virginia tax consequences of the
Conversion, to the effect that the Conversion will constitute a
tax-free reorganization under the Internal Revenue Code of 1986, as
amended, and will not be a taxable transaction for the Association
or the Company under the laws of West Virginia, and the facts relied
upon in such opinions are accurate and complete.
(ix) Each of the Company and the Association has all such
corporate power, authority, authorizations, approvals and orders as
may be required to enter into this Agreement and to carry out the
provisions and conditions hereof, subject to the limitations set
forth herein and subject to the satisfaction of certain conditions
imposed by the Office in connection with its approvals of the Form
AC and the Application H-(e)1-S, and except as may be required under
the securities laws of various jurisdictions, and in the case of the
Company, as of the Closing Date, will have such approvals and orders
to issue and sell the Shares to be sold by the Company as provided
herein, and in the case of the Association, as of the Closing Date,
will have such approvals and orders to issue and sell the Shares of
its Common Stock to be sold to the Company as provided in the Plan,
subject to the issuance of amended charter in the form required for
federally chartered stock savings associations (the "Stock
Charter"), the form of which Stock Charter has been approved by the
Office.
(x) Neither the Company nor the Association 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 Association 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
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Company and the Association, 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 Association at the respective dates
thereof and for the respective periods covered thereby and comply as
to form with the applicable accounting requirements of the SEC and
OTS Regulations. Such financial statements have been prepared in
accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as set
forth therein, and such financial statements are consistent with
financial statements and other reports filed by the Association with
supervisory and regulatory authorities except as such generally
accepted accounting principles may otherwise require. The tables in
the Prospectus accurately present the information purported to be
shown thereby at the respective dates thereof and for the respective
periods therein.
(xii) There has been no material change in the condition
(financial or otherwise), results of operations or business,
including assets and properties, of the Company and the Association,
taken as a whole, since the latest date as of which such condition
is set forth in the Prospectus, except as set forth therein; and the
capitalization, assets, properties and business of each of the
Company and the Association conform to the descriptions thereof
contained in the Prospectus. None of the Company or the Association
has any material liabilities of any kind, contingent or otherwise,
except as set forth in the Prospectus.
(xiii) There has been no breach or default (or the occurrence
of any event which, with notice or lapse of time or both, would
constitute a default) under, or creation or imposition of any lien,
charge or other encumbrance upon any of the properties or assets of
the Company or the Association pursuant to any of the terms,
provisions or conditions of, any agreement, contract, indenture,
bond, debenture, note, instrument or obligation to which the Company
or the Association is a party or by which any of them or any of
their respective assets or properties may be bound or is subject, or
violation of any governmental license or permit or any enforceable
published law, administrative regulation or order or court order,
writ, injunction or decree, which breach, default, encumbrance or
violation would have a material adverse effect on the condition
(financial or otherwise), operations, business, assets or properties
of the Company and the Association, 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
Association, taken as a whole are in full force and effect, and no
party to any such agreement has instituted or, to the best knowledge
of the Company and the Association, threatened any action or
proceeding wherein the Company or the Association would be alleged
to be in default thereunder.
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(xiv) None of the Company or the Association is in violation
of its respective certificate of incorporation or charter or bylaws.
The execution and delivery hereof and the consummation of the
transactions contemplated hereby by the Company and the Association
do not conflict with or result in a breach of the certificate of
incorporation or charter or bylaws of the Company or the Association
(in either mutual or stock form) or constitute a material breach of
or default (or an event which, with notice or lapse of time or both,
would constitute a default) under, give rise to any right of
termination, cancellation or acceleration contained in, or result in
the creation or imposition of any lien, charge or other encumbrance
upon any of the properties or assets of the Company or the
Association pursuant to any of the terms, provisions or conditions
of, any material agreement, contract, indenture, bond, debenture,
note, instrument or obligation to which the Company or the
Association is a party or violate any governmental license or permit
or any enforceable published law, administrative regulation or order
or court order, writ, injunction or decree (subject to the
satisfaction of certain conditions imposed by the Office in
connection with its approval of the Conversion Application), which
breach, default, encumbrance or violation would have a material
adverse effect on the condition (financial or otherwise), operations
or business of the Company and the Association, taken as a whole.
(xv) Subsequent to the respective dates as of which
information is given in the Registration Statement and Prospectus
and prior to the Closing Date (as hereinafter defined), except as
otherwise may be indicated or contemplated therein, none of the
Company or the Association has issued any securities which will
remain issued at the Closing Date or incurred any liability or
obligation, direct or contingent, or borrowed money, except
borrowings in the ordinary course of business, or entered into any
other transaction not in the ordinary course of business and
consistent with prior practices, which is material in light of the
business of the Company and the Association, taken as a whole.
(xvi) Upon consummation of the Conversion, the authorized,
issued and outstanding equity capital of the Company shall be within
the range as set forth in the Prospectus under the caption
"Capitalization," and no Common Stock of the Company shall be
outstanding immediately prior to the Closing Date; the issuance and
the sale of the Shares of the Company have been duly authorized by
all necessary action of the Company and approved by the Office and,
when issued in accordance with the terms of the Plan and paid for,
shall be validly issued, fully paid and nonassessable and shall
conform to the description thereof contained in the Prospectus; the
issuance of the Shares is not subject to preemptive rights, except
as set forth in the Prospectus; and good title to the Shares will be
transferred by the Company upon issuance thereof against payment
therefor, free and clear of all claims, encumbrances, security
interests and liens
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against the Company whatsoever. The certificates representing the
Shares will conform in all material respects with the requirements
of applicable laws and regulations. The issuance and sale of the
capital stock of the Association to the Company has been duly
authorized by all necessary action of the Association and the
Company and appropriate regulatory authorities (subject to the
satisfaction of various conditions imposed by the Office in
connection with its approval of the Conversion Application), and
such capital stock, when issued in accordance with the terms of the
Plan, will be fully paid and nonassessable and will conform in all
material respects to the description thereof contained in the
Prospectus.
(xvii) No approval of any regulatory or supervisory or other
public authority is required in connection with the execution and
delivery of this Agreement or the issuance of the Shares, except for
the declaration of effectiveness of any required post-effective
amendment by the Commission and approval thereof by the Office and
approval of the Company's application on Form H-(e)1-S by the
Office, the issuance of the Stock Charter by the Office and as may
be required under the securities laws of various jurisdictions.
(xviii) All 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) S.R. Xxxxxxxxx, X.X., which has audited the financial
statements of the Association at March 31, 1996 and 1995 and for the
years ended March 31, 1996, 1995 and 1994 included in the
Prospectus, is an independent public accountant within the meaning
of the Code of Professional Ethics of the American Institute of
Certified Public Accountants and Title 12 of the Code of Federal
Regulations, Section 571.2(c)(3).
(xx) For the past five years, the Company and the Association
have timely filed all required federal, state and local franchise
tax returns, and no deficiency has been asserted with respect to
such returns by any taxing authorities, and the Company and the
Association have paid all taxes that have become due and, to the
best of their knowledge, have made adequate reserves for similar
future tax liabilities, except where any failure to make such
filings, payments and reserves, or the assertion of such a
deficiency, would not have a material adverse effect on the
condition of the Company and the Association, taken as a whole.
(xxi) All of the loans represented as assets of the
Association on the most recent financial statements of the
Association included in the Prospectus meet or are exempt from all
requirements of federal, state or local law pertaining to lending,
including without limitation truth in lending (including the
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requirements of Regulation Z and 12 C.F.R. Part 226 and Section
563.99), real estate settlement procedures, consumer credit
protection, equal credit opportunity and all disclosure laws
applicable to such loans, except for violations which, if asserted,
would not have a material adverse effect on the Company and the
Association, taken as a whole.
(xxii) The records of account holders, depositors, borrowers
and other members of the Association delivered to Trident by the
Association or its agent for use during the Conversion have been
prepared or reviewed by the Association and, to the best knowledge
of the Company and the Association, are reliable and accurate.
(xxiii) None of the Company, the Association or the employees
of the Company or the Association, has made any payment of funds of
the Company or the Association prohibited by law, and no funds of
the Company or the Association have been set aside to be used for
any payment prohibited by law.
(xxiv) To the best knowledge of the Company and the
Association, the Company and the Association are in compliance with
all laws, rules and regulations relating to the discharge, storage,
handling and disposal of hazardous or toxic substances, pollutants
or contaminants and neither the Company nor the Association believes
that the Company or the Association is subject to liability under
the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended, or any similar law, except for violations
which, if asserted, would not have a material adverse effect on the
Company and the Association, taken as a whole. There are no actions,
suits, regulatory investigations or other proceedings pending or, to
the best knowledge of the Company or the Association, threatened
against the Company or the Association relating to the discharge,
storage, handling and disposal of hazardous or toxic substances,
pollutants or contaminants. To the best knowledge of the Company and
the Association, no disposal, release or discharge of hazardous or
toxic substances, pollutants or contaminants, including petroleum
and gas products, as any of such terms may be defined under federal,
state or local law, has been caused by the Company or the
Association or, to the best knowledge of the Company or the
Association, has occurred on, in or at any of the facilities or
properties of the Company or the Association, except such disposal,
release or discharge which would not have a material adverse effect
on the Company and the Association, taken as a whole.
(xxv) At the Closing Date, the Company and the Association
will have completed the conditions precedent to, and shall have
conducted the Conversion in all material respects in accordance
with, the Plan, the HOLA, the OTS Regulations and all other
applicable laws, regulations, published decisions and
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orders, including all terms, conditions, requirements and provisions
precedent to the Conversion imposed by the Office.
(b) Trident represents and warrants to the Company and the
Association that:
(i) Trident is registered as a broker-dealer with the
Commission, and is in good standing with the Commission and the
NASD.
(ii) Trident is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation, with
full corporate power and authority to provide the services to be
furnished to the Company and the Association hereunder.
(iii) The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly
and validly authorized by all necessary action on the part of
Trident, and this Agreement is a legal, valid and binding obligation
of Trident, enforceable in accordance with its terms (except as the
enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, reorganization or similar laws relating to or affecting
the enforcement of creditors' rights generally or the rights of
creditors of registered broker-dealers accounts of whose may be
protected by the Securities Investor Protection Corporation or by
general equity principles, regardless of whether such enforceability
is considered in a proceeding in equity or at law, and except to the
extent that the provisions of Sections 8 and 9 hereof may be
unenforceable as against public policy or pursuant to Section 23A).
(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.
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(vi) Any funds received by Trident to purchase Common Stock
will be handled in accordance with Rule 15c2-4 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
(vii) There is not now pending or, to Trident's knowledge,
threatened against Trident any action or proceeding before the
Commission, the NASD, any state securities commission or any state
or federal court concerning Trident's activities as a broker-dealer.
3. Employment of Trident; Sale and Delivery of the Shares. On the basis of
the representations and warranties herein contained, but subject to the terms
and conditions herein set forth, the Company and the Association hereby employ
Trident as their agent to utilize its best efforts in assisting the Company with
the Company's sale of the Shares in the Subscription Offering and, 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
Association, with the approval of the Office, are permitted to extend such
period of time, or (b) upon consummation of the Conversion, whichever date shall
first occur.
In the event the Company is unable to sell a minimum of 510,000 Shares (or
such lesser amount as the Office may permit) within the period herein provided,
this Agreement shall terminate, and the Company and the Association shall refund
promptly to any persons who have subscribed for any of the Shares, the full
amount which it may have received from them, together with interest as provided
in the Prospectus, and no party to this Agreement shall have any obligation to
the other party hereunder, except as set forth in Sections 6, 8(a) and 9 hereof.
Appropriate arrangements for placing the funds received from subscriptions for
Shares in special interest-bearing accounts with the Association until all
Shares are sold and paid for were made prior to the commencement of the
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, Xxxxxxxxxxxx, Xxxx
Xxxxxxxx 00000, or at such other place as shall be agreed upon between the
parties hereto. The date upon which Trident is paid the compensation due
hereunder is herein called the "Closing Date."
Trident agrees either (a) upon receipt of an executed order form of a
subscriber to forward the offering price of the Common Stock ordered on or
before twelve noon on the next business day following receipt or execution of an
order form by Trident to the Association for deposit in a segregated account or
(b) to solicit indications of interest in which event (i) Trident will
subsequently contact any potential subscriber indicating interest to confirm the
interest and
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give instructions to execute and return an order form or to receive
authorization to execute the order form on the subscriber's behalf, (ii) Trident
will mail acknowledgements of receipt of orders to each subscriber confirming
interest on the business day following such confirmation, (iii) Trident will
debit accounts of such subscribers on the third business day ("debit date")
following receipt of the confirmation referred to in (i), and (iv) Trident will
forward completed order forms together with such funds to the Association on or
before twelve noon on the next business day following the debit date for deposit
in a segregated account. Trident acknowledges that if the procedure in (b) is
adopted, subscribers' funds are not required to be in their accounts until the
debit date.
In addition to the expenses specified in Section 6 hereof, Trident shall
receive the following compensation for its services hereunder:
(a) (i) a commission equal to 2% of the aggregate dollar amount of
Shares sold in the Offerings, excluding any shares sold to the Company's
directors any executive officers and their "immediate family" (as used in
Item 404(a) of Regulation S-K) and any employee benefit plan(s) and any
shares sold in any Syndicated Community Offering under selected dealers'
agreements, and (ii) the agreed upon commission to be paid in any
Syndicated Community Offering under selected dealers' agreements. All such
commissions are to be payable in same-day funds to Trident on the Closing
Date.
(b) Trident shall be reimbursed for reasonable out-of-pocket
expenses, including but not limited to travel, communications and postage
and legal fees and expenses, incurred by it, up to $37,500, whether or not
the Offerings are successfully completed; provided, however, that neither
the Company nor the Association shall pay or reimburse Trident for any of
the foregoing expenses accrued after Trident shall have notified the
Company or the Association of its election to terminate this Agreement
pursuant to Section 11 hereof or after such time as the Company or the
Association shall have given notice in accordance with Section 12 hereof
that Trident is in breach of this Agreement. Full payment to defray
Trident's reimbursable expenses shall be made in next-day funds on the
Closing Date or, if the Conversion is not completed and is terminated for
any reason, within ten (10) business days of receipt by the Company of a
written request from Trident for reimbursement of its expenses. Trident
acknowledges receipt of $10,000 advance payment from the Association which
shall be credited against the total reimbursement due Trident hereunder.
(c) Notwithstanding the limitations on reimbursement of Trident for
allocable expenses provided in the immediately preceding paragraph (b), in
the event that a resolicitation or other event causes the Offerings to be
extended beyond their original expiration date, Trident shall be
reimbursed for its reasonable expenses incurred during such extended
period, provided that the allowances for reimbursable expenses provided
for in the immediately preceding paragraph (b) above have been exhausted
and subject to the following. Such reimbursements shall be limited to an
amount equal to the product
Trident Securities, Inc.
Sales Agency Agreement
Page 13
obtained by dividing $37,500 (the original reimbursable out-of-pocket
expense limit), respectively, by the total number of days of the
unextended Subscription Offering (calculated from the date of the
Prospectus to the intended close of the Subscription Offering as stated in
the Prospectus) and multiplying such product by the number of days of the
extension (that number of days from the date of the supplemental
prospectus used in the extended offering to the closing of the extension
of the offering(s) described in such supplemental prospectus).
The Company shall pay any stock issue and transfer taxes which may be
payable with respect to the sale of the Shares. The Company and the Association
shall also pay all expenses of the Conversion incurred by them or on their prior
approval including but not limited to their attorneys' fees, NASD filing fees,
and attorneys' fees relating to any required state securities laws research and
filings, telephone charges, air freight, rental equipment, supplies, transfer
agent charges, fees relating to auditing and accounting and costs of printing
all documents necessary in connection with the Conversion.
4. Offering. Subject to the provisions of Section 7 hereof, Trident is
assisting the Company on a best efforts basis in offering a minimum of 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 Association jointly and
severally covenant and agree that:
(a) The Company shall deliver to Trident, from time to time, such
number of copies of the Prospectus as Trident reasonably may request. The
Company authorizes Trident to use the Prospectus in any lawful manner in
connection with the offer and sale of the Shares.
(b) The Company will notify Trident immediately upon discovery, and
confirm the notice in writing, (i) when any post-effective amendment to
the Registration Statement becomes effective or any supplement to the
Prospectus has been filed, (ii) of the issuance by the Commission of any
stop order relating to the Registration Statement or of the initiation or
the threat of any proceedings for that purpose, (iii) of the receipt of
any notice with respect to the suspension of the qualification of the
Shares for offering or sale in any jurisdiction, and (iv) of the receipt
of any comments from the staff of the Commission relating to the
Registration Statement. If the Commission enters a stop order relating to
the Registration Statement at any time, the Company will make every
reasonable effort to obtain the lifting of such order at the earliest
possible moment.
(c) During the time when a prospectus is required to be delivered
under the Act, the Company will comply so far as it is able with all
requirements imposed upon
Trident Securities, Inc.
Sales Agency Agreement
Page 14
it by the Act, as now in effect and hereafter amended, and by the
Regulations, as from time to time in force, so far as necessary to permit
the continuance of offers and sales of or dealings in the Shares in
accordance with the provisions hereof and the Prospectus. If during the
period when the Prospectus is required to be delivered in connection with
the offer and sale of the Shares any event relating to or affecting the
Company and the Association, taken as a whole, shall occur as a result of
which it is necessary, in the opinion of counsel for Trident, with the
concurrence of counsel to the Company, to amend or supplement the
Prospectus in order to make the Prospectus not false or misleading in
light of the circumstances existing at the time it is delivered to a
purchaser of the Shares, the Company forthwith shall prepare and furnish
to Trident a reasonable number of copies of an amendment or amendments or
of a supplement or supplements to the Prospectus (in form and substance
satisfactory to counsel for Trident) which shall amend or supplement the
Prospectus so that, as amended or supplemented, the Prospectus shall not
contain an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in light of the
circumstances existing at the time the Prospectus is delivered to a
purchaser of the Shares, not misleading. The Company will not file or use
any amendment or supplement to the Registration Statement or the
Prospectus of which Trident has not first been furnished a copy or to
which Trident shall reasonably object after having been furnished such
copy. For the purposes of this subsection the Company and the Association
shall furnish such information with respect to themselves as Trident from
time to time may reasonably request.
(d) The Company and the Association have taken or will take all
reasonably necessary action as may be required to qualify or register the
Shares for offer and sale by the Company under the securities laws of such
jurisdictions as Trident and either the Company or its counsel may agree
upon; provided, however, that the Company shall not be obligated to
qualify as a foreign corporation to do business under the laws of any such
jurisdiction. In each jurisdiction where such qualification or
registration shall be effected, the Company, unless Trident agrees that
such action is not necessary or advisable in connection with the
distribution of the Shares, shall file and make such statements or reports
as are, or reasonably may be, required by the laws of such jurisdiction.
(e) Appropriate entries will be made in the financial records of the
Association sufficient to establish a liquidation account for the benefit
of eligible account holders 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.
Trident Securities, Inc.
Sales Agency Agreement
Page 15
(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 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 Association will take such actions and
furnish such information as are reasonably requested by Trident in order
for Trident to ensure compliance with the NASD's "Interpretation Relating
to Free-Riding and Withholding."
6. Payment of Expenses. Whether or not the Conversion is consummated, the
Company and the Association shall pay or reimburse Trident for (a) all filing
fees paid or incurred by Trident in connection with all filings with the NASD
with respect to the Offerings and, (b) in addition, if the Company is unable to
sell a minimum of 510,000 Shares or such lesser amount as the Office may permit
or the Conversion is otherwise terminated, the Company and the Association shall
reimburse Trident for allocable expenses incurred by Trident relating to the
offering of the Shares as provided in Section 3 hereof; provided, however, that
neither
Trident Securities, Inc.
Sales Agency Agreement
Page 16
the Company nor the Association shall pay or reimburse Trident for any of the
foregoing expenses accrued after Trident shall have notified the Company or the
Association of its election to terminate this Agreement pursuant to Section 11
hereof or after such time as the Company or the Association shall have given
notice in accordance with Section 12 hereof that Trident is in breach of this
Agreement.
7. Conditions of Trident's Obligations. Except as may be waived in writing
by Trident, the obligations of Trident as provided herein shall be subject to
the accuracy of the representations and warranties contained in Section 2 hereof
as of the date hereof and as of the Closing Date, to the performance by the
Company and the Association of their obligations hereunder and to the following
conditions:
(a) At the Closing Date, Trident shall receive the favorable
opinions of Xxxxxxx, Spidi, Sloane & Xxxxx, P.C., special counsel for the
Company and the Association, and ____________________, counsel for the
Company and the Association, dated the Closing Date, addressed to Trident,
in form and substance reasonably satisfactory to counsel for Trident,
substantially as set forth in Exhibits B and C, respectively, hereto.
(b) At the Closing Date, Trident shall receive the letter of
Xxxxxxx, Spidi, Sloane & Xxxxx, P.C., special counsel for the Company and
the Association, dated the Closing Date, addressed to Trident, in form and
substance reasonably satisfactory to counsel for Trident, substantially as
set forth in Exhibit D hereto.
(c) Counsel for Trident shall have been furnished such documents as
they reasonably may require for the purpose of enabling them to review or
pass upon the matters required by Trident, and for the purpose of
evidencing the accuracy, completeness or satisfaction of any of the
representations, warranties or conditions herein contained, including but
not limited to, resolutions of the Board of Directors of the Company and
the Association regarding the authorization of this Agreement and the
transactions contemplated hereby.
(d) Prior to and at the Closing Date, in the reasonable opinion of
Trident, (i) there shall have been no material change in the condition,
financial or otherwise, business or results of operations of the Company
and the Association, taken as a whole, since the latest date as of which
such condition is set forth in the Prospectus, except as referred to
therein; (ii) there shall have been no transaction entered into by the
Company or the Association after the latest date as of which the financial
condition of the Company or the Association is set forth in the Prospectus
other than transactions referred to or contemplated therein, transactions
in the ordinary course of business, and transactions which are not
material to the Company and the Association, taken as a whole; (iii) none
of the Company or the Association shall have received from the Office or
Commission any direction (oral or written) to make any change in the
method of conducting their
Trident Securities, Inc.
Sales Agency Agreement
Page 17
respective businesses which is material to the business of the Company and
the Association, taken as a whole, with which they have not complied; (iv)
no action, suit or proceeding, at law or in equity or before or by any
federal or state commission, board or other administrative agency, shall
be pending or threatened against the Company or the Association or
affecting any of their respective assets, wherein an unfavorable decision,
ruling or finding would have a material adverse effect on the business,
operations, financial condition or income of the Company and the
Association, taken as a whole; and (v) the Shares shall have been
qualified or registered for offering and sale by the Company under the
securities 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 Association, dated the Closing Date, to the effect that:
(i) they have examined the Prospectus and, at the time the Prospectus
became authorized by the Company for use, the Prospectus did not contain
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading with respect to
the Company or the Association; (ii) since the date the Prospectus became
authorized by the Company for use, no event has occurred which should have
been set forth in an amendment or supplement to the Prospectus which has
not been so set forth, including specifically, but without limitation, any
material change in the business, condition (financial or otherwise) or
results of operations of the Company or the Association and, the
conditions set forth in clauses (ii) through (iv) inclusive of subsection
(d) of this Section 7 have been satisfied; (iii) to the best knowledge of
such officers, no order has been issued by the Commission or the Office to
suspend the 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
Association; (iv) a copy of the letter from the appropriate Delaware
authority evidencing the incorporation (and, if generally available from
such authority, good standing) of the Company; (v) a copy of the Company's
certificate of incorporation certified by the appropriate Delaware
governmental authority; and, (vi) if available, a copy of the letter from
the Office approving the Association's Stock Charter.
(g) As soon as available after the Closing Date, Trident shall
receive a
Trident Securities, Inc.
Sales Agency Agreement
Page 18
certified copy of the Association's Stock Charter executed by the
appropriate federal governmental authority.
(h) Concurrently with the execution of this Agreement, Trident
acknowledges receipt of a letter from S.R. Xxxxxxxxx, X.X., 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 S.R. Xxxxxxxxx, X.X.,
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, the Association or
the Subsidiary prepared for Trident's reliance and delivered to Trident or to
counsel for Trident shall be deemed a representation and warranty by the Company
and the Association to Trident as to the statements made therein. If any
condition to Trident's obligations hereunder to be fulfilled prior to or at the
Closing Date is not so fulfilled, Trident may terminate this Agreement or, if
Trident so elects, may waive 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 Association shall reimburse
Trident for its expenses as provided in Section 3(b) hereof.
8. Indemnification.
---------------
(a) The Company and the Association jointly and severally agree to
indemnify and hold harmless Trident, its officers, directors and employees
and each person, if any, who controls Trident within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act, against any
and all loss, liability, claim, damage and expense whatsoever and shall
further promptly reimburse such persons for any legal or other expenses
reasonably incurred by each or any of them in investigating, preparing to
defend or defending against any such action, proceeding or claim (whether
commenced or threatened) arising out of or based upon (A) any
misrepresentation by the Company or the Association in this Agreement or
any breach of warranty by the Company or the Association with respect to
this Agreement or arising out of or based upon any untrue or alleged
untrue statement of a material fact or the omission or alleged omission of
a 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
Trident Securities, Inc.
Sales Agency Agreement
Page 19
(including the Form AC and the Form H-(e)1-S) or other document or
communication (in this Section 8 collectively called "Application")
prepared or executed by or on behalf of the Company or the Association or
based upon written information furnished by or on behalf of the Company or
the Association, whether or not filed in any jurisdiction, to effect the
Conversion or qualify the Shares under the securities laws thereof or
filed with the Office or Commission, unless such statement or omission was
made in reliance upon and in conformity with written information furnished
to the Company or the Association with respect to Trident by or on behalf
of Trident expressly for use in the Prospectus or any amendment or
supplement thereof or in any Application, as the case may be, or (B) the
participation by Trident in the Conversion. This indemnity shall be in
addition to any liability the Company and the Association may have to
Trident otherwise.
(b) The Company shall indemnify and hold Trident harmless for any
liability whatsoever arising out of (i) the Allocation Instructions or
(ii) any records of account holders, depositors, borrowers and other
members of the Association delivered to Trident by the Association or its
agents for use during the Conversion.
(c) Trident agrees to indemnify and hold harmless the Company, the
Association and the Subsidiary, their officers, directors and employees
and each person, if any, who controls the Company or the Association
within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act, to the same extent as the foregoing indemnity from the
Company and the Association to Trident, but only with respect to (A)
statements or omissions, if any, made in the Prospectus or any amendment
or supplement thereof, in any Application or to a purchaser of the Shares
in reliance upon, and in conformity with, written information furnished to
the Company or the Association with respect to Trident by or on behalf of
Trident expressly for use in the Prospectus or in any Application; (B) any
misrepresentation by Trident in Section 2(b) of this Agreement; or (C) any
liability of the Company or the Association which is found in a final
judgment by a court of competent jurisdiction (not subject to further
appeal) to have principally and directly resulted from gross negligence or
willful misconduct of Trident.
(d) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party of
the commencement thereof; but the omission so to notify the indemnifying
party will not relieve it from any liability which it may have to any
indemnified party otherwise than under this Section 8. In case any such
action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party
will be entitled to participate therein and, to the extent that it may
wish, jointly with the other indemnifying party similarly 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
Trident Securities, Inc.
Sales Agency Agreement
Page 20
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 Association other than in accordance with its terms, the Company or the
Association and Trident shall contribute to the aggregate losses, liabilities,
claims, damages, and expenses of the nature contemplated by said indemnity
agreement incurred by the Company or the Association and Trident (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Association on the one hand and Trident on the other from the
offering of the Shares or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above, but also the
relative fault of the Company or the Association on the one hand and Trident on
the other hand in connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or judgments, as well as any other
relevant equitable considerations. The relative benefits received by the Company
and the Association on the one hand and Trident on the other shall be deemed to
be in the same proportions as the total net proceeds from the Conversion
received by the Company and the Association bear to the total commissions
received by Trident under this Agreement. The relative fault of the Company or
the Association on the one hand and Trident on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Association or by Trident
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
Trident Securities, Inc.
Sales Agency Agreement
Page 21
The Company and the Association and Trident agree that it would not be
just and equitable if contribution pursuant to this Section 9 were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by the indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 9, Trident shall not be required
to contribute any amount in excess of the amount by which commissions owed
Trident pursuant to this Agreement exceeds the amount of any damages which
Trident has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who is not guilty of such fraudulent
misrepresentation. To the extent required by law, this Section 8 is subject to
and limited by the provisions of Section 23A.
10. Survival of Agreements, Representations and Indemnities. The
respective indemnities of the Company and the Association and Trident and the
representation and warranties of the Company and the Association and of Trident
set forth in or made pursuant to this Agreement shall remain in full force and
effect, regardless of any termination or cancellation of this Agreement or any
investigation made by or on behalf of Trident or the Company or the Association
or any controlling person or indemnified party referred to in Section 8 hereof,
and shall survive any termination or consummation of this Agreement and/or the
issuance of the Shares, and any legal representative of Trident, the Company,
the Association and any such controlling persons shall be entitled to the
benefit of the respective agreements, indemnities, warranties and
representations.
11. Termination. Trident may terminate this Agreement by giving the
notice indicated below in this Section at any time after this Agreement becomes
effective as follows:
(a) If any domestic or international event or act or occurrence has
materially disrupted the United States securities markets such as to make
it, in Trident's reasonable opinion, impracticable to proceed with the
offering of the Shares; or if trading on the New York Stock Exchange shall
have suspended; or if the United States shall have become involved in a
war or major hostilities; or if a general banking moratorium has been
declared by a state or federal authority which has material effect on the
Association or the Conversion; or if a moratorium in foreign exchange
trading by major international 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 Association shall have sustained a
material or substantial loss by fire, flood, accident, hurricane,
earthquake, theft, sabotage or other calamity or malicious act, whether or
not said loss shall have been insured; or if there shall have been a
material adverse change in the condition or prospects of the Company, the
Association or the Subsidiary.
Trident Securities, Inc.
Sales Agency Agreement
Page 22
(b) If Trident elects to terminate this Agreement as provided in
this Section, the Company and the Association shall be notified promptly
by Trident by telephone or telegram, confirmed by letter.
Trident Securities, Inc.
Sales Agency Agreement
Page 23
(c) If this Agreement is terminated by Trident for any of the
reasons set forth in subsection (a) above, and to fulfill its obligations,
if any, pursuant to Sections 3, 6, 8(a) and 9 of this Agreement and upon
demand, the Company and the Association shall pay Trident the full amount
so owing thereunder.
(d) The Association may terminate the Conversion in accordance with
the terms of the Plan. Such termination shall be without liability to any
party, except that the Company and the Association shall be required to
fulfill their obligations pursuant to Sections 3(b), 3(c), 6, 8(a) and 9
of this Agreement.
12. Notices. All communications hereunder, except as herein otherwise
specifically provided, shall be in writing and if sent to Trident shall be
mailed, delivered or telegraphed and confirmed to Trident Securities, Inc., 0000
Xxx Xxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Mr. R. Xxx
Xxxxxxx, Xx. (with a copy to Housley Kantarian & Xxxxxxxxx, P.C., 0000 00xx
Xxxxxx, X.X., Xxxxxxxxxx, XX 00000, Attention: Xxxx X. Xxxxxxxxx, Esquire) and
if sent to the Company or the Association, shall be mailed, delivered or
telegraphed and confirmed to Sistersville Bancorp, Inc., First Federal Savings
and Loan Association of Sistersville (or First Federal Savings Bank, as
applicable), 000 Xxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxx Xxxxxxxx 00000, Attention: Xx.
Xxxxxxx X. Xxxxx, President (with a copy to Xxxxxxx, Spidi, Sloane & Xxxxx,
P.C., 0000 X Xxxxxx, X.X., Xxxxx 000 Xxxx, Xxxxxxxxxx, X.X. 00000, Attention:
Xxxx X. Spidi, Esquire).
13. Parties. This Agreement shall inure solely to the benefit of, and
shall be binding upon, Trident, the Company, the Association and the controlling
and other persons referred to in Section 8 hereof, and their respective
successors, legal representatives and assigns, and no other person shall have or
be construed to have any legal or equitable right, remedy or claim under or in
respect of or by virtue of this Agreement or any provision herein contained.
14. Construction. Unless governed by preemptive federal law, this
Agreement shall be governed by and construed in accordance with the substantive
laws of West Virginia.
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.
SISTERSVILLE FIRST FEDERAL SAVINGS AND LOAN
BANCORP, INC. ASSOCIATION OF SISTERSVILLE
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxx
------------------------- ---------------------------
Xxxxxxx X. Xxxxx Xxxxxxx X. Xxxxx
President and Chief President and Chief
Executive Officer Executive Officer
Date: , 1997 Date: , 1997
---------- ----- ---------- -----
Agreed to and accepted:
TRIDENT SECURITIES, INC.
By:
----------------------------
Date: , 1997
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