Exhibit 1.1
NIAGARA BANCORP, INC.
LOCKPORT SAVINGS BANK
8,677,747 to 11,740,482 Shares
Common Stock
(Par Value $.01 Per Share)
$10.00 Per Share
SALES AGENCY AGREEMENT
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February __, 1998
CIBC Oppenheimer Corp.
World Financial Center
Xxx Xxxx, Xxx Xxxx 00000
Trident Securities, Inc.
0000 Xxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Dear Sirs:
Niagara Bancorp, Inc., a Delaware-chartered corporation (the "Company"),
Lockport Savings Bank, a New York chartered mutual savings bank (the "Bank") and
Niagara Bancorp, MHC, a New York chartered mutual holding company ("MHC"),
hereby confirm, as of December __, 1997, their respective agreements with CIBC
Xxxxxxxxxxx Corp. ("CIBC Oppenheimer") and Trident Securities, Inc. ("Trident"),
broker-dealers registered with the Securities and Exchange Commission
("Commission") and members of the National Association of Securities Dealers,
Inc. ("NASD"), as follows:
1. Introductory. Under the Bank's plan of reorganization, adopted on
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________, 1997 (the "Plan"), the Company will be formed as a Delaware
corporation, a New York chartered mutual holding company will be formed, MHC
and the Bank will be reorganized into the capital stock form of organization
(together with the Offerings, as defined below, the "Reorganization"). In
accordance with the Plan, the Company is offering shares of its common stock,
par value $.01 per share (the "Shares" and the "Common Stock"), pursuant to
nontransferable subscription rights in a subscription offering (the
"Subscription Offering") to certain depositors and borrowers of the Bank, to
directors, officers and employees of the Bank, and to the Bank's tax-qualified
employee benefit plans (i.e., the Bank's Employee Stock Ownership Plan (the
"ESOP")). Concurrently with, during or promptly after the Subscription
Offering, shares of the Common Stock not sold in the Subscription Offering may
be offered to the general public in a community offering, with preference being
given to natural persons residing in Niagara, Orleans, Erie and Genesee
Counties, New York (the "Community Offering") (the Subscription and Community
Offerings are sometimes referred to collectively as the "Offerings"), subject to
the right of the Company and the Bank, in their absolute discretion, to reject
orders in the Community Offering in whole or in part. In the Offerings, the
Company is offering between 8,677,747 and 11,740,482 Shares, with the
possibility of offering up to 13,501,554 Shares without a resolicitation of
subscribers, as contemplated by Title 12 of the Code of Federal Regulations,
Part
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303.15. Except for certain benefit plans, and certain larger depositors, no
person may purchase more than $200,000 of the Shares issued in the
Reorganization and no person, together with associates of and persons acting in
concert with such person, may purchase in the aggregate more than $400,000 of
the Shares issued in the Reorganization.
In connection with the Reorganization and pursuant to the terms of the Plan
as described in the Prospectus, immediately following the consummation of the
Reorganization, subject to the approval of the members of Bank and compliance
with certain conditions as may be imposed by regulatory authorities, the Company
will contribute an amount of Common Stock equal to 3% of the shares sold in the
Offerings to a charitable foundation (the "Foundation") such shares hereinafter
being referred to as the ("Foundation Shares"). The Company will also
contribute at that time an amount of cash equal to the value of 2% of the shares
sold in the Offerings.
The Company, MHC and the Bank have been advised by CIBC Oppenheimer and
Trident that they will utilize their best efforts in assisting the Company, MHC
and the Bank with the sale of the Shares in the Offerings and, if deemed
necessary by the Company in a syndicated public offering. Prior to the execution
of this Agreement, the Company has delivered to CIBC Oppenheimer and Trident the
Prospectus dated __________ __,1997 (as hereinafter defined) and all supplements
thereto to be used in the Offerings. Such Prospectus contains information with
respect to the Company, MHC, the Bank and the Shares.
2. Representations and Warranties.
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(a) The Company, MHC and the Bank jointly and severally represent and
warrant to CIBC Oppenheimer and Trident that:
(i) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement, including
exhibits and an amendment or amendments thereto, on Form S-1 (No. 333-
______), including a Prospectus relating to the Offerings, for the
registration of the Shares and the Foundation 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
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Commission under the Act (together with the enforceable published
policies and actions of the Commission thereunder, the "SEC
Regulations") differs from the form of prospectus on file at the time
the Registration Statement became effective, the term "Prospectus"
shall refer to the Rule 424(b) prospectus from and after the time it
is filed with or mailed for filing to the Commission and shall include
any amendments or supplements thereto from and after their dates of
effectiveness or use, respectively. If any Shares remain unsubscribed
following completion of the Subscription Offering and, if any, the
Community Offering, the Company (i) will promptly file with the
Commission a post-effective amendment to such Registration Statement
relating to the results of the Subscription Offering and, if any, the
Community Offering, any additional information with respect to the
proposed plan of distribution and any revised pricing information or
(ii) if no such post-effective amendment is required, will file with,
or mail for filing to, the Commission a prospectus or prospectus
supplement containing information relating to the results of the
Subscription and the Community Offerings and pricing information
pursuant to Rule 424(c) of the Regulations, in either case in a form
reasonably acceptable to the Company, CIBC Oppenheimer and Trident.
(ii) The Bank has filed an application for approval to convert
from the mutual form of ownership to the stock form of ownership with
the New York State Bank Department (the "Department") and the Federal
Deposit Insurance Corporation ("FDIC"). The Department and the FDIC
have approved the Bank's application, including the waiver of certain
provisions of regulations specified in such approval with respect to
the establishment of and contribution to the Foundation. 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 Bank's application to convert have
been approved for use by the Department and the FDIC. No order has
been issued by the Department or the FDIC preventing or suspending the
use of the Prospectus or the Proxy Statement; and no action by or
before the Department or the FDIC revoking such approvals is pending
or, to the Bank's best knowledge, threatened. Additionally, the MHC
and the Company have filed an application to register as a bank
holding company in the Federal Reserve Bank of New York ("FRB") and
has received approval from the FRB. (The Company, MHC and Bank
applications are hereinafter called the "Applications.")
(iii) At the date of the Prospectus and at all times subsequent
thereto through and including the Closing Date (i) the Registration
Statement and the Prospectus (as amended or supplemented, if amended
or supplemented) complied with the Act and the SEC Regulations, (ii)
the Registration Statement (as amended or supplemented, if amended or
supplemented) did not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and (iii) the
Prospectus (as
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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 CIBC Oppenheimer and Trident by or on behalf of CIBC
Oppenheimer and Trident expressly for use in the Registration
Statement or Prospectus.
(iv) The Company has been duly incorporated and is in good
standing as a Delaware corporation, MHC has been duly incorporated and
is in good standing as a New York chartered mutual holding company,
and the Bank has been duly organized and has a corporate existence as
a New York chartered mutual savings bank, and each of them is validly
existing under the laws of the jurisdiction of its organization with
full power and authority to own its property and conduct its business
as described in the Registration Statement and Prospectus; the Bank is
a member in good standing of the Federal Home Loan Bank of New York;
and the deposit accounts of the Bank are insured up to applicable
limits by the Bank Insurance Fund ("BIF") of the Federal Deposit
Insurance Corporation ("FDIC"). Each of the Company, MHC and the Bank
is not required to be qualified to do business as a foreign
corporation in any jurisdiction where non-qualification would have a
material adverse effect on the 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 mutual charter and bylaws to stock chartered
bylaws, 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 New York 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, (iii) the Company will issue common stock
to MHC and the public and (iv) the Company will have no direct
subsidiaries other than the Bank.
(v) The Bank does not own equity securities of or an equity
interest in any business enterprise except as described in the
Prospectus.
(vi) 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
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condition of the Bank, under which it holds properties, including
those described in the Prospectus, are in full force and effect as
described therein.
(vii) The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby and all actions
in connection with the contribution to the Foundation have been duly
and validly authorized by all necessary actions on the part of each of
the Company, MHC and the Bank, and this Agreement is a valid and
binding obligation with valid execution and delivery of each of the
Company, MHC and the Bank, enforceable in accordance with its terms
(except as the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, reorganization or similar laws relating to or
affecting the enforcement of creditors' rights generally or the rights
of creditors of savings and loan holding companies the accounts of
whose subsidiaries are insured by the FDIC or by general equity
principles, regardless of whether such enforceability is considered in
a proceeding in equity or at law, and except to the extent that the
provisions of Sections 8 and 9 hereof may be unenforceable as against
public policy or pursuant to Sections 23A or 23B of the Federal
Reserve Act, 12 U.S. C. Sections 371c ("Section 23A" or 371c-1
("Section 23B")).
(viii) There is no litigation or governmental proceeding pending
or, to the best knowledge of the Company, MHC or the Bank, threatened
against or involving the Company, MHC, the Bank, or any of their
respective assets which individually or in the aggregate would
reasonably be expected to have a material adverse effect on the
condition (financial or otherwise), results of operations and
business, including the assets and properties, of the Company, MHC and
the Bank, taken as a whole.
(ix) The Company, MHC and the Bank have received the opinions
of Xxxx Xxxxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. with respect to federal
and New York State income tax consequences of the Reorganization, to
the effect that the Reorganization will constitute a tax-free
reorganization under the Internal Revenue Code of 1986, as amended,
and will not be a taxable transaction for the Bank or the Company
under the laws of New York, and the facts relied upon in such opinion
are accurate and complete.
(x) Each of the Company, MHC 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 and to issue and sell the shares in
the Offerings, and to issue and contribute the Foundation Shares,
subject to the limitations set forth herein and subject to the
satisfaction of certain conditions imposed by the Department, FDIC and
the FRB in connection with its approvals of the Applications, and
except as may be required under the securities, or "blue sky," laws of
various jurisdictions, and in the case of the Company, as of the
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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 New York State chartered
stock savings banks (the "Stock Charter'), the form of which Stock
Charter has been approved by the Department.
(xi) To the best of its knowledge, neither the Company, MHC
nor the Bank is in violation of any rule or regulation of the
Department or the FDIC that could reasonably be expected to result in
any enforcement action against the Company, MHC, the Bank, or their
officers or directors that might have a material adverse effect on the
financial condition, operations, businesses, assets or properties of
the Company, MHC and the Bank, taken as a whole.
(xii) The consolidated financial statements and any related
notes or schedules which are included in the Registration Statement
and the Prospectus fairly present the consolidated financial
condition, income, retained earnings and cash flows of the 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 Regulations and the applicable accounting
regulations of the Department. Such financial statements have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as set
forth therein, and such financial statements are consistent with
financial statements and other reports filed by the Bank with
supervisory and regulatory authorities except as such generally
accepted accounting principles may otherwise require. The tables in
the Prospectus accurately present the information purported to be
shown thereby at the respective dates thereof and for the respective
periods therein.
(xiii) There has been no material change in the financial
condition, results of operations or business, including assets and
properties, of the Company, MHC and the Bank, taken as a whole, since
the latest date as of which such condition is set forth in the
Prospectus, except as set forth therein; and the capitalization,
assets, properties and business of each of the Company, MHC and the
Bank conform to the descriptions thereof contained in the Prospectus.
None of the Company, MHC nor the Bank has any material liabilities of
any kind, contingent or otherwise, except as set forth in the
Prospectus.
(xiv) 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, MHC and the Bank pursuant to any of the
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terms, provisions or conditions of, any agreement, contract,
indenture, bond, debenture, note, instrument or obligation to which
the Company, MHC or the Bank is a party or by which any of them or any
of their respective assets or properties may be bound or is subject,
or violation of any governmental license or permit or any enforceable
published law, administrative regulation or order or court order,
writ, injunction or decree, which breach, default, encumbrance or
violation would have a material adverse effect on the financial
condition, operations, business, assets or properties of the Company,
MHC and the Bank taken as a whole; all agreements which are material
to the financial condition, results of operations or business of the
Company, MHC and the Bank taken as a whole are in full force and
effect, and no party to any such agreement has instituted or, to the
best knowledge of the Company, MHC and the Bank, threatened any action
or proceeding wherein the Company, MHC or the Bank would be alleged to
be in default thereunder.
(xv) None of the Company, MHC or the Bank is in violation of
its respective charter or bylaws. The execution and delivery hereof
and the consummation of the transactions contemplated hereby by the
Company, MHC and the Bank do not conflict with or result in a breach
of the charter or bylaws of the Company, MHC or the Bank (in either
mutual or stock form) or constitute a material breach of or default
(or an event which, with notice or lapse of time or both, would
constitute a default) under, 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, MHC or the Bank pursuant to any
of the terms, provisions or conditions of, any material agreement,
contract, indenture, bond, debenture, note, instrument or obligation
to which the Company, MHC or the Bank is a party or violate any
governmental license or permit or any enforceable published law,
administrative regulation, order or court order, writ, injunction or
decree (subject to the satisfaction of certain conditions imposed by
the Department in connection with its approval of the Reorganization
Application), which breach, default, encumbrance or violation would
have a material adverse effect on the financial condition, operations
or business of the Company, MHC and the Bank taken as a whole.
(xvi) 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, MHC 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,
MHC and the Bank, taken as a whole.
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(xvii) Upon consummation of the Reorganization, the authorized,
issued and outstanding equity capital of the Bank shall be within the
range as set forth in the Prospectus under the caption
"Capitalization," and no Common Stock of the Bank shall be outstanding
immediately prior to the Closing Date; the issuance and the sale of
the Shares of the Bank and the Foundation Shares have been duly
authorized by all necessary action of the Bank and approved by the
Department 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 or the Foundation Shares are
not subject to preemptive rights, except as set forth in the
Prospectus; and good title to the Shares will be transferred by the
Company upon issuance thereof against payment therefor, free and clear
of all claims, encumbrances, security interests and liens against the
Company whatsoever. The certificates representing the Shares and the
Foundation 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 and from the
Company to MHC and the public and the Foundation Shares 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 Department in connection with its
approval of the Reorganization Application), and such capital stock
and Foundation Shares, 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.
(xviii) 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 Department and
the FDIC, and approval of MHC's and Company's applications by the FRB,
the issuance of the Stock Charter by the Department and as may be
required under the securities laws of various jurisdictions.
(xix) All material contracts and other documents required to be
filed as exhibits to the Registration Statement or the Reorganization
Application have been filed with the Commission and/or the Department
or the FRB, as the case may be.
(xx) KPMG Peat Marwick LLP, which has audited the consolidated
financial statements of the Bank at December 31, 1996 and 1995 and for
the years ended December 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 303.15.
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(xxi) For the past five years, the Company, MHC 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, MHC and the Bank
have paid all taxes that have become due and, to the best of their
knowledge, have made adequate reserves for similar future tax
liabilities, except where any failure to make such filings, payments
and reserves, or the assertion of such a deficiency, would not have a
material adverse effect on the condition of the Company, MHC and the
Bank taken as a whole.
(xxii) All of the loans represented as assets of the Bank on the
most recent financial statements of the Bank included in the
Prospectus meet or are exempt from all requirements of federal, state
or local law pertaining to lending, including without limitation truth
in lending (including 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,
MHC and the Bank taken as a whole.
(xxiii) The records of account holders, depositors, borrowers
and other members of the Bank delivered to CIBC Oppenheimer and
Trident by the Bank or its agent for use during the Reorganization
have been prepared or reviewed by the Bank and, to the best knowledge
of the Company, MHC and the Bank, are reliable and accurate.
(xxiv) To the knowledge of the Company, MHC and the Bank, none
of the Company, the Bank nor directors or employees of the Company,
MHC or the Bank have made any payment of funds of the Company, MHC or
the Bank as a loan to any person other than the Employee Stock
Ownership Plan Trust for the purchase of the Shares.
(xxv) To the best knowledge of the Company, MHC and the Bank,
the Company, MHC 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, MHC nor the Bank believes that the Company,
MHC 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, MHC 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, MHC 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
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of the Company, MHC and the Bank, no disposal, release or discharge of
hazardous or toxic substances, pollutants or contaminants, including
petroleum and gas products, as any of such terms may be defined under
federal, state or local law, has been caused by the Company, MHC or
the Bank or, to the best knowledge of the Company, MHC or the Bank,
has occurred on, in or at any of the facilities or properties of the
Company, MHC or the Bank, except such disposal, release or discharge
which would not have a material adverse effect on the Company, MHC and
the Bank, taken as a whole.
(xxvi) At the Closing Date, the Company, MHC and the Bank will
have completed the conditions precedent to, and shall have conducted
the Reorganization in all material respects in accordance with, the
Plan, the Department Regulations, FRB and all other applicable laws,
regulations, published decisions and orders, including all terms,
conditions, requirements and provisions precedent to the
Reorganization imposed by the Department and FRB.
(xxvii) The Foundation has been duly incorporated and is validly
existing as a private charitable foundation in good standing under the
laws of the State of Delaware with corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectus; the Foundation will not be a savings and
loan holding company within the meaning of 12 C.F.R. Section 574.2(q)
as a result of the issuance of the Foundation Shares to it in
accordance with the terms of the Plan and in the amounts as described
in the Prospectus to the knowledge of the Bank, MHC and the Company,
all approvals required to establish the Foundation and to contribute
the Foundation Shares thereto have been performed as described in the
Prospectus; except as specifically disclosed in the Prospectus and the
Proxy Statement, there are no agreements and/or understandings,
written or oral or otherwise, between the Company, MHC and/or the Bank
and the Foundation with respect to the control, directly or
indirectly, over the voting and the acquisition or disposition of the
shares of Common Stock to be contributed by the Company to the
Foundation; the Foundation Shares to be issued to the Foundation in
accordance with the Plan and as described in the Prospectus will have
been duly authorized for issuance and, when issued and contributed by
the Company pursuant to the Plan, will be duly and validly issued and
fully paid and non-assessable.
(b) CIBC Oppenheimer and Trident represents and warrants to the Company,
MHC and the Bank that:
(i) CIBC Oppenheimer and Trident are registered as broker-
dealers with the Commission, and are in good standing with the
Commission and the NASD.
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Trident Securities, Inc.
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(ii) CIBC Oppenheimer is validly existing as a corporation in
good standing under the laws of New York, with full corporate power
and authority to provide the services to be furnished to the Company
and the Bank hereunder. Trident is validly existing as a corporation
in good standing under the laws of North Carolina, with full corporate
power and authority to provide the services to be furnished to the
Company, MHC and the Bank hereunder.
(iii) The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly
and validly authorized by all necessary action on the part of CIBC
Oppenheimer and Trident, and this Agreement is a legal, valid and
binding obligation of CIBC Oppenheimer and Trident, enforceable in
accordance with its terms (except as the enforceability thereof may be
limited by bankruptcy, insolvency, moratorium, reorganization or
similar laws relating to or affecting the enforcement of creditors'
rights generally or the rights of creditors of registered broker-
dealers accounts of whose may be protected by the Securities Investor
Protection Corporation or by general equity principles, regardless of
whether such enforceability is considered in a proceeding in equity or
at law, and except to the extent that the provisions of Sections 8 and
9 hereof may be unenforceable as against public policy or pursuant to
Section 23A or Section 23B).
(iv) Each of CIBC Oppenheimer and Trident and, to Xxxxxxxxxxx'x
and Trident's knowledge, its employees, agents and representatives who
shall perform any of the services required hereunder to be performed
by CIBC Oppenheimer and Trident shall be duly authorized and shall
have all licenses, approvals and permits necessary to perform such
services, and CIBC Oppenheimer and Trident are a registered selling
agents 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 Reorganization
is consummated or terminated.
(v) The execution and delivery of this Agreement by CIBC
Oppenheimer and 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 CIBC
Oppenheimer and 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 CIBC Oppenheimer and
Trident are 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 CIBC Oppenheimer and 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").
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Trident Securities, Inc.
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(vii) There is not now pending or, to CIBC Oppenheimer and
Trident's knowledge, threatened against CIBC Oppenheimer and Trident
any action or proceeding before the Commission, the NASD, any state
securities commission or any state or federal court concerning
Xxxxxxxxxxx'x and Trident's activities as broker-dealers.
3. Employment of CIBC Oppenheimer and Trident: Sale and Delivery of the
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Shares. On the basis of the representations and warranties herein contained,
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but subject to the terms and conditions herein set forth, the Company, MHC and
the Bank hereby employ CIBC Oppenheimer and Trident as their agents to utilize
their efforts in assisting the Company with the Company's sale of the Shares in
the Subscription Offering and Community Offering.
In the event the Company is unable to sell a minimum of 8,677,747 Shares
(or such lesser amount as the Department may permit) within the period herein
provided, this Agreement shall terminate, and the Company, MHC 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 Subscription and Community Offering, with provision for prompt refund to the
purchasers as set forth above, or for delivery to the Company if all Shares are
sold.
If all conditions precedent to the consummation of the Reorganization are
satisfied, including the sale of all Shares required by the Plan to be sold, the
Company agrees to issue or have issued such Shares and to release for delivery
certificates to subscribers thereof for such Shares on the Closing Date against
payment to the Company by any means authorized pursuant to the Prospectus, at
the principal office of the Company at 0000 Xxxxx Xxxxxxx Xxxx, Xxxxxxxx, Xxx
Xxxx 00000-0000 or at such other place as shall be agreed upon between the
parties hereto. The date upon which CIBC Oppenheimer and Trident are paid the
compensation due hereunder is herein called the "Closing Date."
CIBC Oppenheimer and Trident agree 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 CIBC Oppenheimer and Trident to the Bank for
deposit in a segregated account or (b) to solicit indications of interest in
which event (i) CIBC Oppenheimer and 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 subscribers behalf, (ii) CIBC Oppenheimer and
Trident will mail acknowledgments of receipt of orders to each subscriber
confirming interest on the business day following such confirmation, (iii) CIBC
Oppenheimer and Trident will debit accounts of such subscribers on the third
business day ("debit date") following
CIBC Xxxxxxxxxxx Corp. and
Trident Securities, Inc.
Sales Agency Agreement
Page 13
receipt of the confirmation referred to in (i), and (iv) CIBC Oppenheimer and
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. CIBC Oppenheimer and 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, CIBC Oppenheimer
and Trident shall receive the following compensation for its services hereunder:
(a) A commission equal to ninety-five basis points (.95%) of the aggregate
dollar amount of Common Stock sold in the Offerings, excluding any shares of
stock sold to the Bank's trustees, executive officers and ESOP. Additionally,
commissions are excluded on sales of Common Stock to "Associates" (as defined in
the Bank's Plan) of the Bank's trustees and executive officers. A commission
will also be paid equal to seventy-five basis points (.75%) of the aggregate
dollar amount of stock sold in the Offerings to persons who reside outside of
Niagara, Orleans, Erie and Genesee counties. The total compensation paid to
CIBC Oppenheimer and Trident shall not exceed $1 million.
(b) For stock sold by other NASD member firms under selected dealer's
agreements, the commission shall not exceed four and one-half percent (4.5%).
(c) CIBC Oppenheimer and Trident shall be reimbursed for allowable
expenses, incurred by them whether or not the Offerings are successfully
completed; provided, however, that reimbursable legal fees (non "Blue Sky"
related matters) will not exceed $40,000 exclusive of disbursements, that other
reimbursable expenses will not exceed $25,000 and that neither the Company nor
the Bank shall pay or reimburse CIBC Oppenheimer and Trident for any of the
foregoing expenses accrued after CIBC Oppenheimer and 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 CIBC
Oppenheimer and Trident are in breach of this Agreement. Full payment to defray
Xxxxxxxxxxx'x and Trident's reimbursable expenses shall be made in next-day
funds on the Closing Date or, if the Reorganization is not completed and is
terminated for any reason, within ten (10) business days of receipt by the
Company of a written request from CIBC Oppenheimer and Trident for reimbursement
of its expenses. CIBC Oppenheimer and Trident each acknowledge receipt of
$10,000 advance payment from the Bank which shall be credited against the total
reimbursement due CIBC Oppenheimer and Trident hereunder.
(d) Notwithstanding the limitations on reimbursement of CIBC Oppenheimer
and Trident for allocable expenses provided in the immediately preceding
paragraph (c), in the event that a resolicitation or other event causes the
Offerings to be extended beyond their original expiration date, CIBC Oppenheimer
and Trident shall be reimbursed for their allocable expenses incurred during
such
CIBC Xxxxxxxxxxx Corp. and
Trident Securities, Inc.
Sales Agency Agreement
Page 14
extended period, provided that the allowance for allowable expenses provided for
in the immediately preceding paragraph (c) above have been exhausted and subject
to the following.
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 Reorganization 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 Reorganization.
4. Offering. Subject to the provisions of Section 7 hereof, CIBC
--------
Oppenheimer and Trident is assisting the Company on a best efforts basis in
offering a minimum of 8,677,747 and a maximum of 11,740,482 Shares, with the
possibility of offering up to 13,501,554 Shares (except as the Department and
the FDIC may permit such amount to be decreased or increased) in the
Subscription and Community Offerings. The Shares are to be offered to the
public at the price set forth on the cover page of the Prospectus and the first
page of this Agreement.
5. Further Agreements. The Company, MHC and the Bank jointly and
------------------
severally covenant and agree that:
(a) The Company shall deliver to CIBC Oppenheimer and Trident, from time to
time, such number of copies of the Prospectus as CIBC Oppenheimer and Trident
reasonably may request. The Company authorizes CIBC Oppenheimer and Trident to
use the Prospectus in any lawful manner in connection with the offer and sale of
the Shares.
(b) The Company will notify CIBC Oppenheimer and 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
CIBC Xxxxxxxxxxx Corp. and
Trident Securities, Inc.
Sales Agency Agreement
Page 15
Company, MHC and the Bank, taken as a whole, shall occur as a result of which it
is necessary, in the opinion of counsel for CIBC Oppenheimer and 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 CIBC Oppenheimer and 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 CIBC Oppenheimer and 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 CIBC Oppenheimer and CIBC Oppenheimer and
Trident have not first been furnished a copy or to which CIBC Oppenheimer and
Trident shall reasonably object after having been furnished such copy. For the
purposes of this subsection the Company and the Bank shall furnish such
information with respect to themselves as CIBC Oppenheimer and Trident from time
to time may reasonably request.
(d) The Company, MHC and the Bank have taken or will take all reasonably
necessary action as may be required to qualify or register the Shares for offer
and sale by the Company under the securities or blue sky laws of such
jurisdictions as CIBC Oppenheimer and 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 CIBC Oppenheimer and Trident
agrees that such action is not necessary or advisable in connection with the
distribution of the Shares, shall file and make such statements or reports as
are, or reasonably may be, required by the laws of such jurisdiction.
(e) Appropriate entries will be made in the financial records of the Bank
sufficient to establish a liquidation account for the benefit of eligible
account holders as of August 31, 1996 and supplemental eligible account holders
as of December 31, 1997 in accordance with the requirements of the Department
and the FDIC.
(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 Reorganization. The Company shall maintain
the effectiveness of such registration for a minimum period of three years or
for such shorter period as may be required by applicable law.
(g) The Company will make generally available to its security holders as
soon as practicable, but not later than 45 days after the close of the period
covered thereby, an earnings statement (in form complying with the provisions of
Rule 158 of the regulations promulgated under
CIBC Xxxxxxxxxxx Corp. and
Trident Securities, Inc.
Sales Agency Agreement
Page 16
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 CIBC Oppenheimer and 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 CIBC Oppenheimer and
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 CIBC Oppenheimer and 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 by CIBC Oppenheimer and Trident.
(k) The Company shall advise CIBC Oppenheimer and Trident, if necessary, as
to the allocation of deposits, in the case of eligible account holders and
supplemental eligible account holders and votes, in the case of other members,
and of the Shares in the event of an oversubscription and shall provide CIBC
Oppenheimer and Trident final instructions as to the allocation of the Shares
("Allocation Instructions") in such event and such information shall be accurate
and reliable. CIBC Oppenheimer and Trident shall be entitled to rely on such
instructions and shall have no liability in respect of its reasonable reliance
thereon, including without limitation, no liability for or related to any denial
or grant of a subscription in whole or in part.
(1) The Company, MHC and the Bank will take such actions and furnish such
information as are reasonably requested by CIBC Oppenheimer and Trident in order
for CIBC Oppenheimer and Trident to ensure compliance with the NASD's
"Interpretation Relating to Free-Riding and withholding."
(m) The Company, MHC and the Bank shall use their best efforts to ensure
that the Foundation submits within the time frames required by applicable law a
request to the Internal Revenue Service to be recognized as a tax-exempt
organization under Section 501(c)(3) of the Internal Revenue Code of 1986, as
amended (the "Code"); the Company, MHC and the Bank will take no action which
will result in the possible loss of the Foundation's tax-exempt status; and
neither the Company, MHC nor the Bank will contribute any additional assets to
the Foundation until such time that such additional contributions will be
deductible for federal and state income tax purposes.
CIBC Xxxxxxxxxxx Corp. and
Trident Securities, Inc.
Sales Agency Agreement
Page 17
6. Payment of Expenses. Whether or not the Reorganization is
-------------------
consummated, the Company, MHC and the Bank shall pay or reimburse CIBC
Oppenheimer and Trident for (a) all filing fees paid or incurred by CIBC
Oppenheimer and Trident in connection with all filings with the NASD with
respect to the Subscription and Community Offerings and, (b) in addition, if the
Company is unable to sell a minimum of 8,677,747 Shares or such lesser amount as
the Department may permit or the Reorganization is otherwise terminated, the
Company and the Bank shall reimburse CIBC Oppenheimer and Trident for allowable
expenses incurred by CIBC Oppenheimer and Trident relating to the offering of
the Shares as provided in Section 3 hereof; provided, however, that neither the
Company nor the Bank shall pay or reimburse CIBC Oppenheimer and Trident for any
of the foregoing expenses accrued after CIBC Oppenheimer and 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 CIBC
Oppenheimer and Trident are in breach of this Agreement.
7. Conditions of Xxxxxxxxxxx'x and Trident's Obligations. Except as may
-----------------------------------------------------
be waived by CIBC Oppenheimer and Trident, the obligations of CIBC Oppenheimer
and 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, MHC and
the Bank of their obligations hereunder and to the following conditions:
(a) At the Closing Date, CIBC Oppenheimer and Trident shall receive the
favorable opinion of Luse, Lehman, Xxxxxx, Xxxxxxxx & Xxxxxx, special counsel
for the Company and the Bank, dated the Closing Date, addressed to CIBC
Oppenheimer and Trident, in form and substance reasonably satisfactory to
counsel for CIBC Oppenheimer and Trident substantially as set forth in Exhibit B
hereto.
In rendering such opinions, such counsel may rely as to matters of fact on
certificates of officers and directors of the Company, MHC and the Bank and
certificates of public officials delivered pursuant hereto. Such counsel may
assume that any agreement is the valid and binding obligation of any parties to
such agreement other than the Company, MHC and the Bank. Such opinions may be
governed by, and interpreted in accordance with, the Legal Opinion Accord (the
"Accord") of the ABA Section of Business Law (1991), and, as a consequence,
references in such opinions to such counsel's "knowledge" may be limited to
"actual knowledge" as defined in the Accord (or knowledge based on
certificates). Such opinions may be limited to present statutes, regulations
and judicial interpretations and to facts as they presently exist; in rendering
such opinions, such counsel need assume no obligation to revise or supplement
them should the present laws be changed by legislative or regulatory action,
judicial decision or otherwise; and such counsel need express no view, opinion
or belief with respect to whether any proposed or pending legislation, if
enacted, or any regulations or any policy statements issued by any regulatory
agency, whether or not promulgated pursuant to any such legislation, would
affect the validity of the execution and delivery by the Company, MHC and the
Bank of this Agreement or the issuance of the Shares.
CIBC Xxxxxxxxxxx Corp. and
Trident Securities, Inc.
Sales Agency Agreement
Page 18
(b) At the Closing Date, CIBC Oppenheimer and Trident shall receive the
letter of Luse, Lehman, Xxxxxx, Xxxxxxxx & Xxxxxx, dated the Closing Date,
addressed to CIBC Oppenheimer and Trident, in form and substance reasonably
satisfactory to counsel for CIBC Oppenheimer and Trident substantially as set
forth in Exhibit C, hereto:
(c) Counsel for CIBC Oppenheimer and 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 CIBC Oppenheimer and 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, MHC and
the Bank regarding the authorization of this Agreement and the transactions
contemplated hereby.
(d) Prior to and at the Closing Date, in the reasonable opinion of CIBC
Oppenheimer and Trident, (i) there shall have been no material change in the
financial condition, business or results of operations of the Company, MHC and
the Bank, taken as a whole, since the latest date as of which such condition is
set forth in the Prospectus, except as referred to therein; (ii) there shall
have been no transaction entered into by the Company, MHC and the Bank after the
latest date as of which the financial condition of the Company, MHC or the Bank
is set forth in the Prospectus other than transactions referred to or
contemplated therein, transactions in the ordinary course of business, and
transactions which are not material to the Company, MHC and the Bank, taken as a
whole; (iii) none of the Company, MHC or the Bank shall have received from the
Department, FRB 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, MHC and the Bank, taken as a whole, with which they
have not complied; (iv) no action, suit or proceeding, at law or in equity or
before or by any federal or state commission, board or other administrative
agency, shall be pending or threatened against the Company, MHC or the Bank or
affecting any of their respective assets, wherein an unfavorable decision,
ruling or finding would have a material adverse effect on the business,
operations, financial condition or income of the Company, MHC and the Bank,
taken as a whole; and (v) the Shares shall have been qualified or registered for
offering and sale by the Company under the securities or blue sky laws of such
jurisdictions as CIBC Oppenheimer and Trident and the Company shall have agreed
upon.
(e) At the Closing Date, CIBC Oppenheimer and Trident shall receive a
certificate of the principal executive officer and the principal financial
officer of each of the Company, MHC and the Bank, dated the Closing Date, to the
effect that: (i) they have examined the Prospectus and, at the time the
Prospectus became authorized 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, MHC 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,
financial condition or results of operations of the
CIBC Xxxxxxxxxxx Corp. and
Trident Securities, Inc.
Sales Agency Agreement
Page 19
Company, MHC or the Bank and, the conditions set forth in clauses (ii) through
(iv) inclusive of subsection (d) of this Section 7 have been satisfied; (iii) to
the best knowledge of such officers, no order has been issued by the Commission,
FRB, FDIC or the Department to suspend the Subscription Offering or the
Community Offering or the effectiveness of the Prospectus, and no action for
such purposes has been instituted or threatened by the Commission or the
Department; (iv) to the best knowledge of such officers, no person has sought to
obtain review of the final actions of the FDIC, Department or FRB 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.
At the Closing Date, CIBC Oppenheimer and Trident shall receive, among
other documents, (i) copies of the letters from the FDIC and the Department
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 Department evidencing the corporate
existence of the Bank and MHC; (iv) a copy of the letter from the appropriate
Delaware authority evidencing the incorporation (and, if generally available
from such authority, good standing) of the Company; (v) a copy of the Company's
corporate charter certified by the appropriate Delaware governmental authority;
and, (vi) if available, a copy of the letter from the Department approving the
Bank's Stock Charter.
(g) As soon as available after the Closing Date, CIBC Xxxxxxxxxxx and
Trident shall receive a copy of the Bank's certified New York State Stock
Charter executed by the appropriate state governmental authority.
(h) Concurrently with the execution of this Agreement, CIBC Xxxxxxxxxxx and
Trident acknowledges receipt of a letter from KPMG Peat Marwick, LLP,
independent certified public accountants, addressed to CIBC Xxxxxxxxxxx and
Trident and the Company, in substance and form satisfactory to counsel for CIBC
Xxxxxxxxxxx and Trident, with respect to the financial statements and certain
financial information contained in the Prospectus.
(i) At the Closing Date, CIBC Xxxxxxxxxxx and Trident shall receive a
letter in form and substance satisfactory to counsel for CIBC Xxxxxxxxxxx and
Trident from KPMG Peat Marwick, LLP, independent certified public accountants,
dated the Closing Date and addressed to CIBC Xxxxxxxxxxx and 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 CIBC Xxxxxxxxxxx and Trident and their counsel, satisfactory to CIBC
Xxxxxxxxxxx and Trident and their counsel. Any certificates
CIBC Xxxxxxxxxxx Corp. and
Trident Securities, Inc.
Sales Agency Agreement
Page 20
signed by an officer or director of the Company or the Bank prepared for
Xxxxxxxxxxx'x and Trident's reliance and delivered to CIBC Xxxxxxxxxxx and
Trident or to counsel for CIBC Xxxxxxxxxxx and Trident shall be deemed a
representation and warranty by the Company, MHC and the Bank to CIBC Xxxxxxxxxxx
and Trident as to the statements made therein. If any condition to Xxxxxxxxxxx'x
and Trident's obligations hereunder to be fulfilled prior to or at the Closing
Date is not so fulfilled, CIBC Xxxxxxxxxxx and Trident may terminate this
Agreement or, if CIBC Xxxxxxxxxxx and Trident so elects, may waive any such
conditions which have not been fulfilled, or may extend the time of their
fulfillment. If CIBC Xxxxxxxxxxx and Trident terminate this Agreement as
aforesaid, the Company, MHC and the Bank shall reimburse CIBC Xxxxxxxxxxx and
Trident for their expenses as provided in Section 3(b) hereof.
8. Indemnification.
---------------
(a) The Company, MHC and the Bank jointly and severally agree to
indemnify and hold harmless CIBC Xxxxxxxxxxx and Trident, its officers,
directors and employees and each person, if any, who controls CIBC
Xxxxxxxxxxx and 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, MHC or the
Bank in this Agreement or any breach of warranty by the Company, MHC or the
Bank with respect to this Agreement or arising out of or based upon any
untrue or alleged untrue statement of a material fact or the omission or
alleged omission of a material fact required to be stated or necessary to
make not misleading any statements contained in (i) the Registration
Statement or the Prospectus or (ii) any application (including the
Applications or other document or communication (in this Section 8
collectively called "Application") prepared or executed by or on behalf of
the Company, MHC or the Bank or based upon written information furnished by
or on behalf of the Company, MHC or the Bank, whether or not filed in any
jurisdiction, to effect the Reorganization or qualify the Shares under the
securities laws thereof or filed with the Department, FRB or Commission,
unless such statement or omission was made in reliance upon and in
conformity with written information furnished to the Company, MHC or the
Bank with respect to CIBC Xxxxxxxxxxx and Trident by or on behalf of CIBC
Xxxxxxxxxxx and 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 CIBC Xxxxxxxxxxx and Trident in the
Reorganization. This indemnity shall be in addition to any liability the
Company, MHC and the Bank may have to CIBC Xxxxxxxxxxx and Trident
otherwise.
(b) The Company shall indemnify and hold CIBC Xxxxxxxxxxx and 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
CIBC Xxxxxxxxxxx Corp. and
Trident Securities, Inc.
Sales Agency Agreement
Page 21
to CIBC Xxxxxxxxxxx and Trident by the Bank or its agents for use during
the Reorganization.
(c) CIBC Xxxxxxxxxxx and Trident agree to indemnify and hold harmless
the Company, MHC and the Bank, their officers, directors and employees and
each person, if any, who controls the Company, MHC and the Bank within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, to
the same extent as the foregoing indemnity from the Company, MHC and the
Bank to CIBC Xxxxxxxxxxx and 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 CIBC Xxxxxxxxxxx and Trident upon, and in conformity with, written
information furnished to the Company, MHC or the Bank with respect to CIBC
Xxxxxxxxxxx and Trident by or on behalf of CIBC Xxxxxxxxxxx and Trident
expressly for use in the Prospectus or in any Application (provided that it
is agreed and understood that the only information so furnished is set
forth in the Prospectus under the caption. "The Reorganization and
Offering - Plan of Distribution and Selling Commissions." (B) any
misrepresentation by CIBC Xxxxxxxxxxx or Trident in Section 2(b) of this
Agreement; or (C) any liability of the Company, MHC or the Bank which is
found in a final judgment by a court of competent jurisdiction (not subject
to further appeal) to have principally and directly resulted from gross
negligence or willful misconduct of CIBC Xxxxxxxxxxx and Trident. It is
expressly agreed, however, that CIBC Xxxxxxxxxxx and Trident shall not be
liable for any loss, liability, claim, damage or expense which in the
aggregate exceeds the amount paid (excluding reimbursable expenses) to CIBC
Xxxxxxxxxxx and Trident under this Agreement.
(d) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not
relieve it from any liability which it may have to any indemnified party
otherwise than under this Section 8. In case any such action is brought
against any indemnified party, and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with the
other indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party, and after notice from
the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party will not be liable to
such indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defense thereof other than the reasonable cost of investigation except as
otherwise provided herein. In the event the indemnifying party elects to
assume the defense of any such action and retain counsel acceptable to the
indemnified party, the indemnified party may retain additional counsel, but
shall bear the fees and expenses of such counsel unless (i) the
indemnifying party shall have specifically authorized the indemnified party
to retain such counsel or (ii) the parties to such
CIBC Xxxxxxxxxxx Corp. and
Trident Securities, Inc.
Sales Agency Agreement
Page 22
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. Notwithstanding the provisions of this
Section 8, the Bank shall not provide indemnification to the Company or
CIBC Xxxxxxxxxxx and Trident solely to the extent that such indemnification
would cause the Bank to violate Section 23A or Section 23B.
9. Survival of Agreements, Representations and Indemnities. The
-------------------------------------------------------
respective indemnities of the Company, MHC and the Bank and CIBC Xxxxxxxxxxx and
Trident and the representation and warranties of the Company, MHC and the Bank
and of CIBC Xxxxxxxxxxx and 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
CIBC Xxxxxxxxxxx and Trident or the Company, MHC or the Bank or any controlling
person or indemnified party referred to in Section 8 hereof, and shall survive
any termination or consummation of this Agreement and/or the issuance of the
Shares, and any legal representative of CIBC Xxxxxxxxxxx and Trident, the
Company, MHC, the Bank and any such controlling persons shall be entitled to the
benefit of the respective agreements, indemnities, warranties and
representations.
10. Termination. CIBC Xxxxxxxxxxx and 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 CIBC Xxxxxxxxxxx and Trident's reasonable opinion, impracticable to
proceed with the offering of the Shares; or if trading on the New York
Stock Exchange shall have suspended; or if the United States shall have
become involved in a war or major hostilities; or if a general banking
moratorium has been declared by a state or federal authority which has
material effect on the Bank or the Reorganization; or if a moratorium in
foreign exchange trading by major international associations or persons has
been declared; or if there shall have been a material change in the
capitalization, condition or business of the Company, MHC or if the Bank
shall have sustained a material or substantial loss by fire, flood,
accident, hurricane, earthquake, theft, sabotage or other calamity or
malicious act, whether or not said loss shall have been insured; or if
there shall have been a material change in the condition or prospects of
the Company, MHC or the Bank.
CIBC Xxxxxxxxxxx Corp. and
Trident Securities, Inc.
Sales Agency Agreement
Page 23
(b) If CIBC Xxxxxxxxxxx and Trident elects to terminate this Agreement
as provided in this Section, the Company, MHC and the Bank shall be
notified promptly by CIBC Xxxxxxxxxxx and Trident by telephone or telegram
and confirmed by letter.
(c) If this Agreement is terminated by CIBC Xxxxxxxxxxx and 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, MHC and the Bank shall pay CIBC
Xxxxxxxxxxx and Trident the full amount so owing thereunder.
(d) The Bank may terminate the Reorganization in accordance with the
terms of the Plan. Such termination shall be without liability to any
party, except that the Company, MHC and the Bank shall be required to
fulfill their obligations, to the extent applicable, pursuant to Sections
3(b), 3(c), 6, 8(a) and 9 of this Agreement.
11. Notices. All communications hereunder, except as herein otherwise
-------
specifically provided, shall be in writing and if sent to CIBC Xxxxxxxxxxx and
Trident shall be mailed, delivered or telegraphed and confirmed to CIBC
Xxxxxxxxxxx Corp., 000 Xxxxxxx Xxxxxx, 00/xx/ Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxx X. Xxxxxxxx, Trident Securities, Inc., 0000 Xxx Xxxxx Xxxx,
Xxxxx 000, Xxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xxx Xxxxxxx (with a copy to
Silver, Xxxxxxxx & Xxxx, L.L.P., 0000 Xxx Xxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X.
00000, Attention: Xxxxxx X. Xxxxxxxxx, P.C.) and if sent to the Company or the
Bank shall be mailed, delivered or telegraphed and confirmed to Niagara Bancorp,
Inc., 0000 Xxxxx Xxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000-0000, Attention: Xxxxxxx
X. Xxxx, President and Chief Executive Officer (with a copy to Luse, Lehman,
Xxxxxx, Xxxxxxxx & Xxxxxx, 0000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 000, Xxxxxxxxxx,
X.X. 00000, Attention: Xxxx Xxxxxx, Esq.).
12. Parties. This Agreement shall inure solely to the benefit of, and
-------
shall be binding upon, CIBC Xxxxxxxxxxx and Trident, the Company, MHC, the Bank
and the controlling and other persons referred to in Section 8 hereof, and their
respective successors, legal representatives and assigns, and no other person
shall have or be construed to have any legal or equitable right, remedy or claim
under or in respect of or by virtue of this Agreement or any provision herein
contained.
13. Construction Unless governed by preemptive federal law, this
------------
Agreement shall be governed by and construed in accordance with the substantive
laws of New York.
14. 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.
CIBC Xxxxxxxxxxx Corp. and
Trident Securities, Inc.
Sales Agency Agreement
Page 24
Please acknowledge your agreement to the foregoing by signing below and
returning to the Company one copy of this letter.
NIAGARA BANCORP, INC. LOCKPORT SAVINGS BANK
By: By:
------------------------ -----------------------
Xxxxxxx X. Xxxx Xxxxxxx X. Xxxx
President and Chief Executive President and Chief Executive
Officer Officer
Date: Date:
---------------------- ---------------------
NIAGARA BANCORP, MHC
By:
------------------------
Xxxxxxx X. Xxxx
President and Chief Executive Officer
Date:
----------------------
Agreed to and accepted:
CIBC XXXXXXXXXXX CORP. TRIDENT SECURITIES, INC.
By: By:
------------------------ -------------------------
Date: Date:
---------------------- -----------------------
Exhibit A
---------
Jurisdictions where Trident is a Registered Selling Agent
Trident Securities, Inc. is a registered selling agent in the jurisdictions
--
listed below:
Alabama Missouri
Arizona Nebraska
Arkansas Nevada
California New Hampshire
Colorado New Jersey
Connecticut New Mexico
Delaware New York
District of Columbia North Carolina
Florida North Dakota (Trident Securities, Inc. only, no agents)
Georgia Ohio
Idaho Oklahoma
Illinois Oregon
Indiana Pennsylvania
Iowa Rhode Island
Kansas South Carolina
Kentucky Tennessee
Louisiana Texas
Maine Vermont
Maryland Virginia
Massachusetts Washington
Michigan West Virginia
Minnesota Wisconsin
Mississippi Wyoming
Trident Securities, Inc. is not a registered selling agent in the jurisdictions
---
listed below:
Alaska
Hawaii
Montana
South Dakota
Utah
A-1
CIBC XXXXXXXXXXX CORP.
Jurisdictions where CIBC Xxxxxxxxxxx is a Registered Selling Agent
CIBC Xxxxxxxxxxx Corp. is a registered selling agent in the jurisdictions listed
--
below:
CIBC Xxxxxxxxxxx Corp. is not a registered selling agent in the jurisdictions
---
listed below:
A-2
Exhibit B
---------
[Xxxx, Xxxxxx to insert introduction]
(i) the Company and the MHC have each been duly incorporated, and is
validly existing as corporations in good standing under the laws of its
jurisdiction of incorporation, and the Bank is validly existing as a mutual
savings association under the laws of the State of New York, each with full
power and authority to own its properties and conduct its business as
described in the Prospectus;
(ii) the Bank is a member of the Federal Home Loan Bank of New York,
and the deposit accounts of the Bank are insured by the BIF up to the
applicable legal limits;
(iii) to the best of our knowledge, the activities of the Bank as
such activities are described in the Prospectus are permitted under laws of
the State of New York State and the United States to subsidiaries of a
Delaware business corporation and the Bank does not have any subsidiaries;
(iv) The Plan complies with, and, to the best of our knowledge, the
Reorganization of the Bank from a New York chartered mutual savings bank to
a New York chartered stock savings bank and the creation of the Company and
the MHC as the holding companies for the Bank have been effected in all
material respects in accordance with, the Bank Holding Company Act of 1956,
as amended and the regulations of the Department and the FDIC; to the best
of our knowledge, all of the terms, conditions, requirements and provisions
with respect to the Plan and the Reorganization imposed by the Department
and the FDIC, except with respect to the filing or submission of certain
required post-Reorganization reports or other materials by the Company, the
MHC or the Bank, have been complied with by the Company, the MHC and the
Bank; and, to the best of our knowledge, no person has sought to obtain
regulatory or judicial review of the final action of the Department or the
FDIC in approving the Plan;
(v) The Foundation, has been effected in all material respects in
accordance with the requirements of the Department and the FDIC; all the
terms, conditions, requirements and provisions with respect to the
organization and purpose of the Foundation imposed by the Department,
except with respect to the filing or submission of any required reports
after the Foundation is formed or other materials by the Foundation, have
been complied with by the Foundation; and, to the best of our knowledge, no
person has sought to obtain regulatory or judicial review of the final
action of the Department or the FDIC in approving the formation of the
Foundation;
(vi) the Company has authorized Common Stock as set forth in the
Registration Statement and the Prospectus, and the description of such
Common Stock in the Registration Statement and the Prospectus is accurate
in all material respects;
(vii) the issuance and sale of the Shares and contribution of
Foundation Shares have been duly and validly authorized by all necessary
corporate action on the part of the
B-1
Company; the Shares and Foundation Shares, upon receipt of payment and
issuance in accordance with the terms of the Plan and this Agreement, will
be validly issued, fully paid, nonassessable and, except as disclosed in
the Prospectus, free of preemptive rights, and good title thereto shall be
transferred by the Company free and clear of all claims, encumbrances,
security interests and liens created by the Company;
(viii) the form of certificate used to evidence the Shares is in
proper form and complies in all material respects with applicable Delaware
law;
(ix) the issuance and sale of the capital stock of the Bank to the
Company have been duly authorized by all necessary corporate action of the
Bank and the Company and have received the approval of the FDIC and the
Department, and such capital stock, upon receipt of payment and issuance in
accordance with the terms of the Plan, will be validly issued, fully paid
and nonassessable and owned of record and, to our actual knowledge,
beneficially by the Company;
(x) The Foundation has been duly incorporated and is validly
existing as a non-stock corporation in good standing under the laws of the
State of Delaware with corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus; the Foundation is not a bank holding company within the meaning
of 12 C.F.R. Part 225 as a result of the issuance of the Foundation Shares
to it in accordance with the terms of the Plan and in the amounts as
described in the Prospectus; no approvals are required to establish the
Foundation and to contribute the Foundation Shares thereto as described in
the Prospectus other than those set forth in the New York State Banking
Department's approval order; the Foundation Shares to be issued to the
Foundation in accordance with the Plan and as described in the Prospectus
will have been duly authorized for issuance and, when issued and
contributed by the Company pursuant to the Plan, will be duly and validly
issued and fully paid and non-assessable.
(xi) subject to the satisfaction of the conditions imposed by the
FDIC, FRB and Department, no further approval, authorization, consent or
other order of any federal government board or body is required in
connection with the execution and delivery of this Agreement, and the
consummation of the Reorganization, except with respect to the issuance to
the Bank of the Stock Charter by the Department and as may be required
under the "blue sky" laws of various jurisdictions;
(xii) the execution and delivery of this Agreement and the
consummation of the Reorganization (including the establishment of the
Foundation and the contribution thereto of the Foundation Shares and cash)
have been duly and validly authorized by all necessary corporate action on
the part of each of the Company and the Bank;
(xiii) the statements in the Prospectus and incorporated by reference
in the Proxy Statement under the captions "Regulation," "Dividends,"
"Restrictions on Acquisitions of Stock and Related Takeover Defensive
Provisions" and "Description of Capital Stock," insofar as they are, or
refer to, statements of law or legal conclusions (excluding financial data
B-2
included therein, as to which no opinion is expressed), have been prepared
or reviewed by us and are correct in all material respects;
(xiv) the Application for a merger or other Transaction and the Form
86-AC (including the establishment of the Foundation and the contribution
thereto of the Foundation Shares and cash) has been approved by the FDIC
and the Department, respectively, and the Prospectus and the Proxy
Statement have been authorized for use by the Department; the Registration
Statement and any post-effective amendment thereto has been declared
effective by the Commission; except as to any necessary qualifications or
registration under the securities laws of the jurisdictions in which the
Shares were offered, no further approval of any governmental authority is
required for the issuance and sale of the Shares (subject to the
satisfaction of various conditions subsequent imposed by the FDIC and the
Department in connection with its approval of the Reorganization
Application), and, to the best of our knowledge, no proceedings are pending
by or before the Commission or the Department seeking to revoke or rescind
the orders declaring the Registration Statement effective or approving the
Reorganization Application or, to the best of our knowledge, are
contemplated or threatened (provided that for this purpose we do not regard
any litigation or governmental procedure to be "threatened" unless the
potential litigant or government authority has manifested to the management
of the Company or the Bank, or to us, a present intention to initiate such
litigation or proceeding);
(xv) the execution and delivery of this Agreement and the
consummation of the Reorganization by the MHC, the Company and the Bank do
not conflict with or result in a breach of the charter or bylaws of the
MHC, the Company or the Bank (in either mutual or stock form)
(xvi) the Reorganization Application, the Registration Statement, the
Prospectus and the Proxy Statement, in each case as amended, comply as to
form in all material respects with the requirements of the Act, the Bank
Holding Company Act of 1956, as amended, the SEC Regulations, the FDIC
regulations and the Department Regulations, as the case may be (except as
to information with respect to Trident included therein and financial
statements, notes to financial statements, financial tables and other
financial and statistical data, including the appraisal, included therein,
as to which no opinion is expressed); to the best of our knowledge, all
material documents and exhibits required to be filed with the
Reorganization Application and the Registration Statement have been so
filed and the descriptions in the Reorganization Application and the
Registration Statement of such documents and exhibits are accurate in all
material respects.
(xvii) to our actual knowledge, the Bank has obtained all licenses,
permits and other governmental authorizations currently required for the
conduct of its business as such business is described in the Prospectus,
all such licenses, permits and other governmental authorizations are in
full force and effect and the Bank is in all material respects complying
therewith, except where the failure to hold such licenses, permits or
governmental authorizations or the failure to so comply would not have a
material adverse effect on the Company and the Bank, taken as a whole;
B-3
(xviii) there are no material legal or governmental proceedings
pending or, to our actual knowledge, threatened against or involving the
assets of the Company, the Bank or the Foundation (provided that for this
purpose we do not regard any litigation or governmental procedure to be
"threatened" unless the potential litigant or government authority has
manifested to the management of the Company or the Bank, or to us, a
present intention to initiate such litigation or proceeding);
(xix) to our actual knowledge, the execution and delivery of the
Agreement and the consummation of the Reorganization by the Company and the
Bank do not constitute a material breach of or default (or an event which,
with notice or lapse of time or both, would constitute 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
Department in connection with Department's approval of the Reorganization
Application), which breach, default, encumbrance or violation would have a
material adverse effect on the financial condition, operations, business,
assets or properties of the Company and the Bank taken as a whole;
(xx) to our actual knowledge, there has been no material breach of
any provision of the Company's or the Bank's charter or bylaws or breach or
default (or the occurrence of any event which, with notice or lapse of time
or both, would constitute a default) under any agreement, contract,
indenture, bond, debenture, note, instrument or obligation to which the
Company or the Bank is a party or by which any of them or any of their
respective assets or properties may be bound, or any governmental license
or permit, or a violation of any enforceable published law, administrative
regulation or order, or court order, writ, injunction or decree which
breach, default, encumbrance or violation would have a material adverse
effect on the financial condition, operations, business, assets or
properties of the Company and the Bank taken as a whole; and,
(xxi) the Agreement is a legal, valid and binding obligation of each
of the Company and the Bank, enforceable in accordance with its terms
(except as the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, reorganization, receivership, conservatorship or
similar laws relating to or affecting the enforcement of creditors' rights
generally or the rights of creditors of depository institutions whose
accounts are insured by the FDIC or savings and loan holding companies the
accounts of whose subsidiaries are insured by the FDIC or by general equity
principles, regardless of whether such enforceability is considered in a
proceeding in equity or at law, and except to the extent that the
provisions of Sections 8 and 9 hereof may be unenforceable as against
public policy or pursuant to Section 23A or Section 23B, as to which we
render no opinion);
[Xxxx, Xxxxxx to insert conclusion]
B-4
Exhibit C
---------
[Xxxx, Xxxxxx to insert introduction]
Based on such counsel's participation in conferences with representatives
of the Company, the Bank, its counsel, the independent appraiser, the
independent certified public accountants, CIBC Xxxxxxxxxxx and Trident and its
counsel, review of documents and understanding of applicable law (including the
requirements of Form S-1 and the character of the Registration Statement
contemplated thereby) and the experience such counsel has gained in its practice
under the Act, nothing has come to such counsel's attention that would lead it
to believe that the Registration Statement, as amended (except as to information
in respect of CIBC Xxxxxxxxxxx and Trident contained therein and except as to
the financial statements, notes to financial statements, financial tables and
other financial and statistical data contained therein, as to which such counsel
expresses no opinion), at the time it became effective contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements made therein, in light of the
circumstances under which they were made, not misleading, or that the
Prospectus, as amended (except as to information in respect of CIBC Xxxxxxxxxxx
and Trident contained therein and except as to financial statements, notes to
financial statements, financial tables and other financial and statistical data
contained therein as to which such counsel expresses no opinion), as of the date
of the Prospectus and at the Closing Date, contained any untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading (in making this statement such counsel may state that it has not
undertaken to verify independently the information in the Registration Statement
or Prospectus and, therefore, does not assume any responsibility for the
accuracy or completeness thereof.
[Xxxx, Xxxxxx to insert conclusion]
D-1
