Exhibit 1.2
NEWSOUTH BANCORP, INC.
1,870,000 to 2,530,000 Shares
Common Stock
(Par Value $.01 Per Share)
$15.00 Per Share
SALES AGENCY AGREEMENT
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Trident Securities, Inc.
0000 Xxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Dear Sirs:
NewSouth Bancorp, Inc., a Delaware corporation (the "Company"), and Home
Savings Bank, SSB, a North Carolina-chartered and federally insured mutual
savings bank (the "Bank"), 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 Bank intends to convert from a North Carolina-
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chartered mutual savings bank to a North Carolina-chartered stock savings bank
(the "Stock Conversion"), and immediately thereafter convert to a North Carolina
commercial bank (the "Bank Conversion") under the name "NewSouth Bank" (the
"Commercial Bank") as a wholly owned subsidiary of the Company (together with
the Offerings, as defined below, the Stock Conversion, the issuance of shares of
common stock of the Bank to the Company, the Bank Conversion and the
incorporation of the Company, the "Conversion") pursuant to a plan of mutual
savings bank conversion adopted on September 19, 1996 [and amended on
____________, 199__?] (the "Plan") and a plan of bank conversion adopted on
_____________, 1996 [and amended on _______________, 199__] (the "Bank Plan").
In accordance with the Plan, the Company is offering shares of its common stock,
$.01 par value 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 the
Bank's tax-qualified employee benefit plan (i.e., the Bank's Employee Stock
Ownership Plan (the "ESOP")) and to the Bank's directors, officers and
employees. Subsequent to 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 (the "Community Offering") with first priority being given to
natural persons and trusts of natural persons who are permanent residents of
Beaufort, Craven, Lenoir, Nash, Pasquotank and Pitt Counties in North Carolina
(the "Local Community"), and/or in a syndicated community offering, subject to
the right of the Company and the Bank, in their absolute discretion, to reject
orders in the Community Offering, if
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Page 2
any, or any syndicated community offering in whole or in part. (The Subscription
Offering, the Community Offering, if any, and any syndicated community offering
are sometimes referred to collectively as the "Offerings.")
In the Offerings, the Company is offering between 1,870,000 and 2,530,000
Shares, with the possibility of offering up to 2,909,500 Shares without a
resolicitation of subscribers. With the exception of the ESOP, no individual
person or entity (or persons or entities exercising subscription rights through
a single account) may purchase in the Offerings more than 20,000 Shares, and no
person or entity together with any associates or persons acting in concert, may
purchase in the Offerings more than 40,000 Shares, issued in the Conversion in
the aggregate.
The Company and the Bank have been advised by Trident that it will utilize
its best efforts in assisting the Company and the Bank with the sale of the
Shares in the Offerings. Prior to the execution of this Agreement, the Company
has delivered to Trident the Prospectus dated ______________, 1997 (as
hereinafter defined) and all supplements thereto to be used in the Offerings.
Such Prospectus contains information with respect to the Company, the Bank and
the Shares.
2. Representations and Warranties.
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a. The Company and the Bank jointly and severally represent and
warrant to Trident that:
(i) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement, including
exhibits and an amendment or amendments thereto, on Form S-1 (No. 333-
16335), including a Prospectus relating to the Offerings, for the
registration of the Shares under the Securities Act of 1933, as
amended (the "Securities Act"); and such registration statement has
become effective under the Securities 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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Page 3
Commission under the Securities 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, 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, 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 such prospectus or prospectus
supplement containing information relating to the results of the
Subscription Offering and pricing information as may be required by
Rule 424(c) of the SEC Regulations, in either case in a form
reasonably acceptable to the Company and Trident.
(ii) The Bank has filed conversion applications, including
exhibits (as amended or supplemented, the "Conversion Applications")
with both the Administrator of the Savings Institutions Division of
the North Carolina Department of Commerce (the "Administrator") under
Section 54C-33 of Chapter 54C of the General Statutes of North
Carolina, as amended, and the enforceable rules and regulations,
including published policies and actions, of the Administrator and
other applicable North Carolina law thereunder (collectively, the "NC
Conversion Laws") and the Federal Deposit Insurance Corporation (the
"FDIC") under the Federal Deposit Insurance Act, as amended, and the
enforceable rules and regulations, including published policies and
actions, of the FDIC and other applicable federal law thereunder
(collectively, the "FDIC Conversion Laws"), as to which the Bank has
received conditional approval and notice of intention not to object,
respectively; 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
Conversion Applications are approved by the Administrator and are the
subject of a conditional notice of intention not to object by the
FDIC. No order has been issued by the Administrator or the FDIC
preventing or suspending the use of the Prospectus or the Proxy
Statement; and no action by or before the Administrator or the FDIC
seeking the revocation of its conditional approval or notice of
intention not to object, respectively, is pending or, to the Bank's
best knowledge, threatened. The Company has filed holding company
applications, including exhibits (as amended or supplemented, the
"Holding Company
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Applications"), with the Board of Governors of the Federal Reserve
System (the "Federal Reserve Board") and the Administrator, which have
been approved by them. No action by or before the Federal Reserve
Board or the Administrator revoking such approval is pending or, to
the Company's best knowledge, threatened. The Bank also has filed an
application, including exhibits (as amended or supplemented, the "Bank
Conversion Application") with the North Carolina Commissioner of Banks
(the "Commissioner") and the State Banking Commission (the "Banking
Commission") under Section 53-17.2 of Chapter 53 of the General
Statutes of North Carolina, as amended, and the enforceable rules and
regulations, including published policies and actions of the
Commissioner and other applicable North Carolina law thereunder
(collectively, the "Bank Conversion Laws"), as to which the Bank has
received conditional approval from the Commissioner and the Banking
Commission; and no action by or before the Commissioner or the Banking
Commission seeking the revocation of their conditional approval is
pending or, to the Bank's best knowledge, threatened.
(iii) At the date of the Prospectus and at all times subsequent
thereto through and including the Closing Date (a) the Registration
Statement and the Prospectus (each as amended or supplemented, if
amended or supplemented) complied with the Securities Act and the SEC
Regulations, the NC Conversion Laws, the Bank Conversion Laws and the
FDIC Conversion Laws, (b) 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 (c) the Prospectus (as amended or supplemented, if
amended or supplemented) did not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
Representations or warranties in this subsection shall not apply to
statements or omissions made in reliance upon and in conformity with
written information furnished to the Company or the Bank relating to
Trident by Trident expressly for use in the Registration Statement or
the Prospectus.
(iv) The Company has been duly incorporated as a Delaware
corporation, and the Bank has been duly organized as a mutual savings
bank under the laws of North Carolina, and each of them is validly
existing and in good standing under the laws of the jurisdiction of
its organization with full power and authority to own its property and
conduct its business as described in the Registration Statement and
Prospectus; the Bank is a member in good standing of the Federal Home
Loan Bank
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of Atlanta; and the deposit accounts of the Bank are insured by the
Savings Association Insurance Fund ("SAIF") administered by the FDIC
up to the applicable legal limits. Each of the Company and the Bank is
not required to be qualified to do business as a foreign corporation
in any jurisdiction where non-qualification would have a material
adverse effect on the Company and the Bank, taken as a whole. The Bank
does not own equity securities of or an equity interest in any
business enterprise except as described in the Prospectus. Upon
amendment and restatement of the Bank's articles of incorporation and
bylaws as provided in the rules and regulations of the Administrator
and the Commissioner 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 North Carolina-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) immediately following
the Stock Conversion, the Bank will be converted to the Commercial
Bank with full power and authority to own its property and conduct its
business as described in the Prospectus, and (iv) the Company will
have no direct subsidiaries other than the Commercial Bank.
(v) The Bank has, and upon conversion the Commercial Bank will
have, 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
reasonably be expected to have a material adverse effect upon the
operations or financial condition of the Company and the Bank, and
upon conversion the Commercial Bank, taken as a whole; and all of the
leases and subleases material to the operations or financial condition
of the Bank, and upon conversion the Commercial Bank, under which it
holds properties, including those described in the Prospectus, are in
full force and effect as described therein. The activities of the Bank
are permissible, and upon conversion the activities of the Commercial
Bank will be permissible, to subsidiaries of a bank holding company by
the rules, regulations, policies and practices of the Federal Reserve
Board.
(vi) The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly
and validly authorized by all necessary actions on the part of each of
the Company and the Bank, and this Agreement is a valid and binding
obligation with valid execution and delivery of each of the Company
and the Bank, enforceable in accordance with its terms (except
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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 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 Bank, threatened
against or involving the Company, the Bank or any of their respective
assets which individually or in the aggregate would reasonably be
expected to have a material adverse effect on the condition (financial
or otherwise), results of operations and business, including the
assets and properties, of the Company and the Bank, and upon
conversion the Commercial Bank, taken as a whole.
(viii) The Company and the Bank have received the opinion of
Xxxxxxx, Kantarian & Xxxxxxxxx, P.C. with respect to federal and North
Carolina 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 Bank or the Company under the laws of North
Carolina, and the facts relied upon in such opinions are accurate and
complete.
(ix) Each of the Company and the Bank has all such corporate
power, authority, authorizations, approvals and orders as may be
required to enter into this Agreement and to carry out the provisions
and conditions hereof, subject to the limitations set forth herein and
subject to the satisfaction of post-Conversion conditions imposed by
the Administrator, the FDIC, the Federal Reserve Board, the
Commissioner and/or the Banking Commission in connection with their
approvals of, or notice of intention not to object to, as applicable,
the respective Conversion Applications, Holding Company Applications
and Bank Conversion Application, 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 authorizations,
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 authorizations, 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
and restated articles of incorporation in the form required for North
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Carolina-chartered stock savings banks (the "Stock Articles of
Incorporation"), the form of which Stock Articles of Incorporation has
been approved by the Administrator and, upon the Bank Conversion,
subject to the issuance of amended and restated articles of
incorporation in the form required for North Carolina-chartered
commercial banks (the "Bank Articles of Incorporation"), the form of
which Bank Articles of Incorporation has been approved by the
Commissioner.
(x) Neither the Company nor the Bank is in violation of any
rule or regulation of the Administrator or the FDIC that could
reasonably be expected to result in any enforcement action against the
Company, the Bank or their officers or directors that might have a
material adverse effect on the condition (financial or otherwise),
operations, businesses, assets or properties of the Company and the
Bank, and upon conversion the Commercial Bank, taken as a whole.
(xi) The consolidated financial statements and any related
notes or schedules which are included in the Registration Statement
and the Prospectus fairly present in all material respects the
consolidated financial condition, results of operations, retained
earnings and cash flows of the Bank at the respective dates thereof
and for the respective periods covered thereby and comply as to form
with the applicable accounting requirements of the SEC Regulations and
the NC Conversion Laws, the FDIC Conversion Laws and the Bank
Conversion Laws. 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 appropriate 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 in all material respects the information purported
to be shown thereby at the respective dates thereof and for the
respective periods therein.
(xii) There has been no material change in the condition
(financial or otherwise), results of operations or business, including
assets and properties, of the Company and the Bank, taken as a whole,
since the latest date as of which such condition is set forth in the
Prospectus. The capitalization, assets, properties and business of
each of the Company and the Bank conform in all material respects to
the descriptions thereof contained in the Prospectus. Neither the
Company nor the Bank has any material liabilities of any kind,
contingent or otherwise, except as set forth in the Prospectus.
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(xiii) There has been no breach or default (or the occurrence of
any event which, with notice or lapse of time or both, would
constitute a default) under, or creation or imposition of any lien,
charge or other encumbrance upon any of the properties or assets of
the Company or the Bank pursuant to any of the terms, provisions or
conditions of, any agreement, contract, indenture, bond, debenture,
note, instrument or obligation to which the Company or the Bank is a
party or by which any of them or any of their respective assets or
properties may be bound or is subject, or violation of any
governmental license or permit or any enforceable published law,
administrative regulation or order or court order, writ, injunction or
decree, which breach, default, encumbrance or violation would have a
material adverse effect on the condition (financial or otherwise),
operations, business, assets or properties of the Company and the
Bank, and upon conversion the Commercial Bank, taken as a whole; all
agreements which are material to the condition (financial or
otherwise), results of operations or business of the Company and the
Bank, taken as a whole, are in full force and effect, and no party to
any such agreement has instituted or, to the best knowledge of the
Company and the Bank, threatened any action or proceeding wherein the
Company or the Bank would or might be alleged to be in default
thereunder.
(xiv) Neither the Company nor the Bank is in violation of its
respective articles of incorporation or bylaws. The execution and
delivery hereof, the fulfillment of the terms set forth herein and the
consummation of the transactions contemplated hereby do not conflict
with or result in a breach of the articles of incorporation or bylaws
of the Company or the Bank (in either mutual, stock or commercial bank
form) or constitute a material breach of or default (or an event
which, with notice or lapse of time or both, would constitute a
default) under, give rise to any right of termination, cancellation or
acceleration contained in, or result in the creation or imposition of
any lien, charge or other encumbrance upon any of the properties or
assets of the Company or the Bank pursuant to any of the terms,
provisions or conditions of, any material agreement, contract,
indenture, bond, debenture, note, instrument or obligation to which
the Company or the Bank is a party or violate any governmental license
or permit or any enforceable published law, administrative regulation
or order or court order, writ, injunction or decree (subject to the
satisfaction of post-Conversion conditions imposed by the
Administrator, the FDIC, the Federal Reserve Board, the Commissioner
and/or the Banking Commission in connection with their approvals of,
or notice of intention not to object to, as applicable, the respective
Conversion Applications, Holding Company Applications, and the Bank
Conversion Application), which breach, default, encumbrance or
violation could reasonably be expected to have a material adverse
effect on the
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condition (financial or otherwise), operations or business of the
Company and the Bank, and upon conversion the Commercial Bank, taken
as a whole.
(xv) Subsequent to the respective dates as of which information
is given in the Registration Statement and Prospectus and prior to the
Closing Date (as hereinafter defined), neither the Company nor the
Bank nor the Commercial Bank has issued any securities or incurred any
liability or obligation, direct or contingent, or borrowed money,
except liabilities, obligations or borrowings in the ordinary course
of business, or entered into any other transaction not in the ordinary
course of business and consistent with prior practices, which is
material in light of the business of the Company and the Bank, and
upon conversion the Commercial Bank, taken as a whole.
(xvi) Upon consummation of the Conversion, the authorized,
issued and outstanding equity capital of the Company shall be within
the range as set forth in the Prospectus under the caption
"Capitalization", and no Common Stock of the Company shall be
outstanding immediately prior to the Closing Date (except for one
Share of Common Stock issued in connection with the organization of
the Company, which Share shall be canceled effective as of the
Closing); the issuance and the sale of the Shares of the Company have
been duly authorized by all necessary action of the Company and
approved or not objected to, as applicable, by the Administrator, the
FDIC, the Commissioner, Banking Commission and the Federal Reserve
Board 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; and
good title to the Shares will be transferred by the Company upon
issuance thereof against payment therefor, free and clear of all
claims, encumbrances, security interests and liens against the Company
whatsoever. The certificates representing the Shares will conform in
all material respects with the requirements of applicable laws and
regulations. The issuance and sale of the capital stock of the Bank,
and upon conversion the Commercial Bank, to the Company has been duly
authorized by all necessary action of the Bank and, upon conversion
the Commercial Bank, and the Company and appropriate regulatory
authorities (subject to the satisfaction of post-Conversion conditions
imposed by the Administrator, the FDIC, the Commissioner, the Banking
Commission and/or the Federal Reserve Board in connection with their
approvals or notice of nonobjection, as applicable, with respect to
the respective Conversion Applications, Holding Company Applications
and Bank Conversion Applications), and such capital stock, when issued
in accordance with the terms of the Plan for the consideration
described in the
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Prospectus, will be fully paid and nonassessable and will conform in
all material respects to the description thereof contained in the
Prospectus.
(xvii) No approval, or notice of intention not to object, 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 or nonobjection thereto, as applicable, by the Administrator,
the FDIC, the Commissioner and the Banking Commission, the issuance of
the Stock Articles of Incorporation by the Administrator the issuance
of Bank Articles of Incorporation 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, the Conversion
Applications, the Holding Company Applications, or the Bank Conversion
Applications have been filed with the Commission, the Administrator,
the FDIC, the Commissioner, the Banking Commission and/or the Federal
Reserve Board, as the case may be.
(xix) Coopers & Xxxxxxx L.L.P., which has audited the
financial statements of the Bank at September 30, 1996 and 1995 and
for the years ended September 30, 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) The Company and the Bank have timely filed all required
federal, state and local franchise tax returns, and no deficiency has
been asserted with respect to such returns by any taxing authorities,
and the Company and the Bank have paid all taxes that have become due
and, to the best of their knowledge, have made adequate reserves for
similar future tax liabilities, except where any failure to make such
filings, payments and reserves, or the assertion of such a deficiency,
would not have a material adverse effect on the condition of the
Company and the Bank, and upon conversion the Commercial Bank, taken
as a whole.
(xxi) All of the loans represented as assets of the Bank on
the most recent financial statements of the Bank included in the
Prospectus meet or are exempt from all requirements of federal, state
or local law pertaining to lending, including without limitation truth
in lending (including the requirements of 12 C.F.R. Part 226
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("Regulation Z")), real estate settlement procedures, consumer credit
protection, equal credit opportunity and all disclosure laws
applicable to such loans, except for violations which, if asserted,
would not have a material adverse effect on the Company and the Bank,
and upon conversion the Commercial Bank, taken as a whole.
(xxii) The records of account holders, depositors, borrowers
and other members of the Bank delivered to Trident by the Bank or its
agent for use during the Conversion have been prepared or reviewed by
or for the Bank and are reliable and accurate.
(xxiii) Neither the Company nor the Bank or, to the best
knowledge of the Company and the Bank, the employees of the Company or
the Bank, has made any payment of funds of the Company or the Bank
prohibited by law, and no funds of the Company or the Bank, and upon
conversion the Commercial Bank, have been set aside to be used for any
payment prohibited by law.
(xxiv) The Company and the Bank, and upon conversion the
Commercial Bank, are in compliance with all laws, rules and
regulations relating to environmental protection, including the
discharge, storage, handling and disposal of hazardous or toxic
substances, pollutants or contaminants, and neither the Company nor
the Bank has any reason to believe that the Company or the Bank is
subject to liability under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, or any similar
law, except for violations which, if asserted, could not reasonably be
expected to have a material adverse effect on the Company and the
Bank, and upon conversion the Commercial Bank, taken as a whole. There
are no actions, suits, regulatory investigations or other proceedings
pending or, to the best knowledge of the Company or the Bank,
threatened against the Company or the Bank relating to environmental
protection, including the discharge, storage, handling and disposal of
hazardous or toxic substances, pollutants or contaminants. 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 Bank or, to the best knowledge
of the Company or the Bank, has occurred on, in or at any of the
facilities or properties of the Company or the Bank, except such
disposal, release or discharge which would not have a material adverse
effect on the Company and the Bank, and upon conversion the Commercial
Bank, taken as a whole.
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(xxv) At the Closing Date, the Company and the Bank will have
completed all pre-Conversion conditions to, and shall have conducted
the Conversion in all material respects in accordance with, the Plan,
the Bank Plan, the Prospectus, the SEC Regulations, the NC Conversion
Laws, the FDIC Conversion Laws and the Bank Conversion Laws and all
other applicable laws, regulations, published decisions and orders,
including all terms, conditions, requirements and provisions precedent
to the Conversion imposed by the Administrator, the FDIC, the
Commissioner, the Banking Commission and/or the Federal Reserve Board.
(b) Trident represents and warrants to the Company and the Bank that:
(i) Trident is registered as a broker-dealer with the
Commission, and is in good standing with the Commission and the NASD.
(ii) Trident is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation, with
full corporate power and authority to provide the services to be
furnished to the Company and the Bank hereunder.
(iii) The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly
and validly authorized by all necessary corporate 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 whom 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 as set forth in the jurisdictions listed in Exhibit A
hereto and will remain so registered in such jurisdictions as to which
the Company duly notifies Trident that it is relying on such
registration for the sale of the Shares, until the Conversion is
consummated or terminated.
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(v) The execution and delivery of this Agreement by Trident,
the fulfillment of the terms set forth herein and the consummation of
the Conversion 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 to which Trident is a party
or, to Trident's actual knowledge, under any governmental license or
permit or any law, administrative regulation, authorization, approval
or order or court decree, injunction or order by which Trident is
bound.
(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) To Trident's actual knowledge, there is not now pending or
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 which
is expected to have a materially adverse impact upon Trident's ability
to perform its obligations hereunder.
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 Bank hereby employ Trident
as their agent to utilize its best efforts in assisting the Company with the
Company's sale of the Shares in the Subscription Offering and, if any, the
Community Offering or any syndicated community offering. The employment of
Trident hereunder shall terminate (a) forty-five (45) days after the Offerings
close, unless the Company and the Bank, with the approval of the Administrator,
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 1,870,000 Shares
(or such lesser amount as the Administrator and the FDIC may permit) within the
period herein provided, this Agreement shall terminate, and the Company and the
Bank shall refund promptly to any persons who have subscribed for any of the
Shares the full amount which it may have received from them, together with
interest as provided in the Prospectus, and no party to this Agreement shall
have any obligation to the other party hereunder, except as set forth in
Sections 6, 8 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.
Trident Securities, Inc.
Sales Agency Agreement
Page 14
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 0000 Xxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxx
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."
In the event of a syndicated community offering, Trident agrees either (a)
upon receipt of an executed order form of a subscriber to forward the offering
price of the Common Stock ordered on or before twelve noon on the next business
day following receipt or execution of an order form by Trident to the Bank for
deposit in a segregated account or (b) to solicit indications of interest in
which event (i) Trident will subsequently contact any potential subscriber
indicating interest to confirm the interest and give instructions to execute and
return an order form or to receive authorization to execute the order form on
the subscriber's behalf, (ii) Trident will mail acknowledgments of receipt of
orders to each subscriber confirming interest on the business day following such
confirmation, (iii) Trident will debit accounts of such subscribers by the date
prescribed by applicable law ("debit date") following receipt of the
confirmation referred to in (i), and (iv) Trident will forward completed order
forms together with such funds to the Bank on or before twelve noon on the next
business day following the debit date for deposit in a segregated account.
Trident acknowledges that if the procedure in (b) is adopted, subscribers' funds
are not required to be in their accounts until the debit date.
In addition to the expenses specified in Section 6 hereof, Trident shall
receive the following compensation for its services hereunder:
(a) (i) a commission equal to 1.85 % of the aggregate dollar
amount of Common Stock sold in the Subscription Offering (excluding Shares
sold to the Bank's directors and executive officers and their "associates,"
as such term is defined in the Plan, and the ESOP), and (ii) a commission
of 1.85% of the aggregate dollar amount of Common Stock sold by Trident in
the Community Offering (excluding any Shares sold by other member firms of
the NASD through a selected dealers arrangement (the "Selected Dealer
Offering"), for which Shares the commission payable to Trident shall be
agreed upon at the time of the stock allocation in the Selected Dealer
Offering. All such fees are to be payable in same-day funds to Trident on
the Closing Date.
(b) Trident shall be reimbursed for all allocable expenses,
including but not limited to travel, communications, legal fees and
expenses, postage, etc., incurred by it whether or not the Offerings are
successfully completed. Unless otherwise agreed, and except
Trident Securities, Inc.
Sales Agency Agreement
Page 15
as otherwise set forth herein, Trident's out-of-pocket expenses will not
exceed $7,500 and its legal fees and expenses will not exceed $25,000. Full
payment to defray Trident's reimbursable expenses shall be made in same-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
Bank which shall be credited against the total reimbursement due Trident
hereunder.
(c) Notwithstanding the limitations on reimbursement of Trident
for allocable expenses provided in the immediately preceding paragraph (b),
in the event that a resolicitation or other event causes the Offerings to
be extended beyond their original expiration date, Trident shall be
reimbursed for its allocable expenses incurred during such extended period,
provided that the allowance for allocable expenses provided for in the
immediately preceding paragraph (b) above have been exhausted and subject
to the following. Such reimbursement shall be in amount equal to the
product obtained by dividing $7,500 (original out-of-pocket expenses) by
the total number of days of the unextended Subscription Offering
(calculated from the date of the Prospectus to the intended close of the
Subscription Offering as stated in the Prospectus) and multiplying such
product by the number of days of the extension (that number of days from
the date of the supplemental prospectus used in the extended Subscription
Offering to the closing of the extension of the Subscription Offering
described in such supplemental prospectus).
The Company shall pay any stock issue and transfer taxes which may be
payable with respect to the sale of the Shares.
The Company and the Bank shall also pay all expenses of the Conversion
incurred by them or on their prior approval, including but not limited to the
following: their attorneys' fees, NASD filing fees, attorneys' fees relating to
any required state securities laws research and filings, telephone charges, air
freight, rental equipment, supplies, transfer agent charges, fees relating to
auditing and accounting, costs of printing all documents necessary in connection
with the Conversion, etc.
4. Offerings. Subject to the provisions of Section 7 hereof, Trident is
---------
assisting the Company on a best efforts basis in offering a minimum of 1,870,000
and a maximum of 2,530,000 Shares, with the possibility of offering up to
2,909,500 Shares (except as the Administrator and the FDIC 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. and agree that:
Trident Securities, Inc.
Sales Agency Agreement
Page 16
5. Further Agreements. The Company and the Bank jointly and severally
------------------
covenant
(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 Securities Act, the Company will comply so far as it is able with
all requirements imposed upon it by the Securities Act, as now in effect
and hereafter amended, and by the SEC Regulations, as from time to time in
force, so far as necessary to permit the continuance of offers and sales of
or dealings in the Shares in accordance with the provisions hereof and the
Prospectus. If during the period when the Prospectus is required to be
delivered in connection with the offer and sale of the Shares any event
relating to or affecting the Company and the Bank, taken as a whole, shall
occur as a result of which it is necessary, in the opinion of counsel for
Trident, with the concurrence of counsel to the Company, to amend or
supplement the Prospectus in order to make the Prospectus not false or
misleading in light of the circumstances existing at the time it is
delivered to a purchaser of the Shares, the Company forthwith shall prepare
and furnish to Trident a reasonable number of copies of an amendment or
amendments or of a supplement or supplements to the Prospectus (in form and
substance satisfactory to counsel for Trident) which shall amend or
supplement the Prospectus so that, as amended or supplemented, the
Prospectus shall not contain an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein,
in light of the circumstances existing at the time the Prospectus is
delivered to a purchaser of the Shares, not misleading. The Company will
not file or use any amendment or supplement to the Registration Statement
or the Prospectus of which Trident has not first been furnished a copy or
to which Trident shall reasonably object after having been furnished such
copy. For the purposes of this subsection the Company and the Bank
Trident Securities, Inc.
Sales Agency Agreement
Page 17
shall furnish such information with respect to themselves as Trident from
time to time may reasonably request.
(d) The Company and the Bank have taken or will take all reasonably
necessary action and furnish to whomever Trident may reasonably direct such
information as may be required to qualify or register the Shares for offer
and sale by the Company under the securities laws of such jurisdictions as
Trident and either the Company or its counsel may agree upon; provided,
however, that the Company shall not be obligated to qualify as a foreign
corporation to do business under the laws of any such jurisdiction. In each
jurisdiction where such qualification or registration shall be effected,
the Company, unless Trident agrees that such action is not necessary or
advisable in connection with the distribution of the Shares, shall file and
make such statements or reports as are, or reasonably may be, required by
the laws of such jurisdiction.
(e) Appropriate entries will be made in the financial records of the
Bank sufficient to establish a liquidation account for the benefit of
eligible account holders and supplemental eligible account holders in
accordance with the requirements of applicable law.
(f) The Company will file a registration statement for the Common
Stock if required under Section 12(b) or (g), as applicable, of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), prior to
completion of the Offerings and shall request that such registration
statement be effective upon or before completion of the Conversion. In such
event, the Company shall maintain the effectiveness of such registration
for a minimum period of three years or for such shorter period as may be
permitted by applicable law.
(g) The Company will make generally available to its security
holders as soon as practicable, but not later than 90 days after the close
of the period covered thereby, an earnings statement (in form complying
with the provisions of Rule 158 of the SEC Regulations) 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, unless management of the Company determines
that the foregoing would be unduly burdensome or expensive.
(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
Trident Securities, Inc.
Sales Agency Agreement
Page 18
(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
supplemental eligible account holders, and votes, in the case of other
members, and of the Shares in the event of an oversubscription and shall
provide Trident final instructions as to the allocation of the Shares
("Allocation Instructions") in such event and such information shall be
accurate and reliable. Trident shall be entitled to rely on such
instructions and shall have no liability in respect of its 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 and the Bank will take such actions and furnish such
information as are reasonably requested by Trident in order for Trident to
ensure compliance with the NASD's "Interpretation Relating to Free-Riding
and Withholding."
6. Payment of Expenses. Whether or not the Conversion is consummated, the
-------------------
Company and the Bank shall pay or reimburse Trident for (a) all filing fees paid
or incurred by Trident in connection with all filings with the NASD with respect
to the Subscription and Community Offerings and, (b) in addition, if the Company
is unable to sell a minimum of 1,870,000 Shares or such lesser amount as the
Administrator and the FDIC may permit or the Conversion is otherwise terminated,
the Company and the Bank shall reimburse Trident for allocable expenses incurred
by Trident relating to the offering of the Shares as provided in Section 3
hereof.
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 Bank, and upon conversion the Commercial
Bank, of their obligations hereunder and to the following conditions:
Trident Securities, Inc.
Sales Agency Agreement
Page 19
(a) At the Closing Date, Trident shall receive the favorable opinion
of Xxxxxxx, Kantarian & Xxxxxxxxx, P.C., special counsel for the Company and the
Bank, dated the Closing Date, addressed to Trident, in form and substance
reasonably satisfactory to counsel for Trident and to the effect that:
(i) the Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of its jurisdiction of
incorporation, and the Bank has been duly organized and is validly existing
as a mutual savings bank in good standing under the laws of North Carolina,
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 Atlanta,
and the deposit accounts of the Bank are insured by the SAIF up to the
applicable legal limits;
(iii) to the actual knowledge of such counsel, the activities of the
Bank are permitted under federal and North Carolina law to subsidiaries of
a North Carolina business corporation, and the Bank does not have any
subsidiaries;
(iv) to the actual knowledge of such counsel, the Bank has obtained
all licenses, permits and other governmental authorizations required for
the conduct of its business, 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;
(v) the Plan and the Bank Plan comply with and, to the actual
knowledge of such counsel, the Conversion has been effected in all material
respects in accordance with all applicable laws, rules, regulations,
decisions and orders (except for federal and state securities laws, as to
which no opinion need be rendered), with such modifications as were
disclosed to and approved by the Administrator and the Commissioner in
writing and were in such counsel's opinion appropriate for the nature of
the transaction described in the respective Conversion Applications,
Holding Company Applications and Bank Conversion Applications; to such
counsel's actual knowledge, all of the terms, conditions, requirements and
provisions with respect to the Plan, the Bank Plan and the Conversion,
except with respect to the
Trident Securities, Inc.
Sales Agency Agreement
Page 20
filing or submission of required post-Conversion reports or other materials
by the Company or the Bank, and upon conversion the Commercial Bank, have
been complied with in all material respects by the Company and the Bank,
and upon conversion the Commercial Bank; and, to the actual knowledge of
such counsel, no person has sought to obtain regulatory or judicial review
of the final actions of the Administrator, the Commissioner, the Banking
Commission and the FDIC in approving, or not objecting to, as applicable,
the Plan and the Bank Plan, as applicable;
(vi) As of the Closing Date, the Company, the Bank and the
Commercial Bank have 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
and complete in all material respects;
(vii) the issuance and sale of the Shares have been duly and validly
authorized by all necessary corporate action on the part of the Company;
the Shares, upon receipt of payment and issuance in accordance with the
terms of the Plan and this Agreement, will be validly issued, fully paid,
nonassessable and 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 certificates for the Shares are in due and proper form and
comply 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 approvals of the Administrator
and the Federal Reserve Board, 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
the actual knowledge of such counsel, beneficially by the Company;
(x) the Bank Conversion has been duly authorized by all necessary
corporate action of the Bank and the Company and has received the approval
of the Commissioner and the Banking Commission and upon conversion the
capital stock of the Commercial Bank will be validly issued, fully paid and
nonassessable and owned of record and, to the actual knowledge of such
counsel, beneficially by the Company;
Trident Securities, Inc.
Sales Agency Agreement
Page 21
(xi) subject to the satisfaction of the post-Conversion conditions
to the Administrator's, the FDIC's, the Commissioner's, the Banking
Commission's and the Federal Reserve Board's approvals of, or notice of
intention not to object to, as applicable, the respective Conversion
Applications, Bank Conversion Application and Holding Company Applications,
no further approval, notice of intention not to object, authorization,
consent or other order of any public board or body is required in
connection with the execution and delivery of this Agreement, the issuance
of the Shares and the consummation of the Conversion, except as may be
required under the securities laws of the various jurisdictions (as to
which an opinion need not be expressed);
(xii) the execution and delivery of this Agreement and the
consummation of the transactions contemplated thereby have been duly and
validly authorized by all necessary action, corporate or otherwise, on the
part of each of the Company and the Bank; and this 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 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, as to which an opinion need not
be expressed);
(xiii) there are no material legal or governmental proceedings which,
to the actual knowledge of such counsel, are pending or threatened against
or involving the assets of the Company or the Bank (provided that for this
purpose such counsel need not regard any legal or governmental proceedings
to be "threatened" unless the potential litigant or government authority
has manifested to the management of the Company or the Bank, or to such
counsel, a present intention to initiate such litigation or proceeding);
(xiv) the statements in the Prospectus and incorporated by reference
in the Proxy Statement under the captions "Dividend Policy," "Business of
the Bank-Lending Activities," "Business of the Bank -- Non-Performing Loans
and Other Problem Assets," "Taxation," "Regulation," "Description of
Capital Stock," "Certain Restrictions on Acquisition of the Company, the
Converted Bank and the Commercial Bank" and "Certain Anti-Takeover
Provisions in the Certificate of Incorporation and Bylaws", insofar as they
include, or refer to, statements of law or
Trident Securities, Inc.
Sales Agency Agreement
Page 22
legal conclusions (excluding financial data included therein, as to which
an opinion need not be expressed), have been prepared or reviewed by such
counsel and are correct in all material respects;
(xv) the Conversion Applications and the Bank Conversion Application
have been approved or not objected to, as applicable, by the Administrator
and the FDIC, and the Commissioner and the Banking Commission, as
applicable, and the Prospectus and the Proxy Statement have been authorized
or not objected to by them; the Holding Company Applications have been
approved by the Administrator and the Federal Reserve Board; 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, as to which no opinion need
be rendered, no further approval or notice of intention not to object, as
applicable, of any governmental authority is required for the issuance and
sale of the Shares (subject to the satisfaction of post-Conversion
conditions imposed by the Administrator, the FDIC, the Commissioner, the
Banking Commission and/or the Federal Reserve Board in connection with
their approval or notice of intention not to object, as applicable, with
respect to the respective Conversion Applications, Bank Conversion
Application and Holding Company Applications), and, to the actual knowledge
of such counsel, no proceedings are pending by or before the Administrator,
the FDIC, the Commissioner, the Banking Commission or the Federal Reserve
Board or the Commission seeking revocation or rescission of the orders
approving or not objecting to the Conversion Applications, the Bank
Conversion Application and the Holding Company Applications or declaring
the Registration Statement effective or are contemplated or threatened
(provided that for this purpose such counsel need not regard any litigation
or governmental proceeding to be "threatened" unless the potential litigant
or government authority has manifested to the management of the Company or
the Bank, or to such counsel, a present intention to initiate such
litigation or proceeding);
(xvi) the execution and delivery of this Agreement, the incurrence of
the obligations herein set forth and the consummation of the transactions
contemplated hereby by the Company and the Bank do not conflict with or
result in a breach of the articles of incorporation or bylaws of the
Company or the Bank (in either mutual, stock or commercial bank form), or,
to the actual knowledge of such counsel, constitute a material breach of or
default (or an event which, with notice or lapse of time or both, would
constitute a material breach or default) under, give rise to any right of
termination, cancellation or acceleration contained in, or result in the
creation
Trident Securities, Inc.
Sales Agency Agreement
Page 23
or imposition of any lien, charge or other encumbrance upon any of the
properties or assets of the Company or the Bank, and upon conversion the
Commercial 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 by
which it or its assets or properties may be bound or is subject or violate
any governmental license or permit or any law, administrative regulation or
order or court order, writ, injunction or decree (subject to the
satisfaction of post-Conversion conditions imposed by the Administrator,
the FDIC, the Commissioner, the Banking Commission and/or the Federal
Reserve Board in connection with their approval of, or notice of intention
not to object to, as applicable, the respective Conversion Applications,
the Bank Conversion Application and Holding Company Applications), which
breach, default, encumbrance or violation would have a material adverse
effect on the condition (financial or otherwise), operations, business,
assets or properties of the Company and the Bank, and upon conversion the
Commercial Bank, taken as a whole;
(xvii) to the actual knowledge of such counsel, there has been no
material breach of any provision of the Company's or the Bank's articles of
incorporation or bylaws or material breach or default (or the occurrence of
any event which, with notice or lapse of time or both, would constitute a
material breach or 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 law, administrative regulation or order, or court order,
writ, injunction or decree which breach, default, encumbrance or violation
would have a material adverse effect on the condition (financial or
otherwise), operations, business, assets or properties of the Company and
the Bank, taken as a whole; and,
(xviii) the Conversion Applications, the Bank Conversion Application,
the Holding Company Applications, 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 NC Conversion
Laws, the FDIC Conversion Laws, the Bank Conversion Laws, the Securities
Act and the SEC Regulations, as the case may be (except as to financial
statements, notes to financial statements, financial tables and other
financial and statistical data, including the appraisal, included therein,
and except as to any statement or omission made in reliance upon and in
conformity with written information furnished to the Company or the Bank
with respect to Trident by or on behalf of Trident expressly for use in the
Prospectus or any amendment or supplement thereof or in any Application, as
the case may be, as to which an opinion
Trident Securities, Inc.
Sales Agency Agreement
Page 24
need not be expressed); to such counsel's actual knowledge, all
documents and exhibits required to be filed with the Conversion
Applications, the Bank Conversion Application, the Holding Company
Applications and the Registration Statement have been so filed, and
the descriptions in the Conversion Applications, the Bank Conversion
Application, the Holding Company Applications and the Registration
Statement of such documents and exhibits are accurate and complete in
all material respects and present fairly the information required to
be shown; to such counsel's actual knowledge, there are no contracts
or other documents of a character required to be described which are
not described, and there are no statutes or regulations applicable to,
certificates, permits or other authorizations from governmental
regulatory officials or bodies required to be obtained or maintained
by, or legal or governmental proceedings, past, pending or threatened,
against, the Company or the Bank of a character required to be
disclosed in the Conversion Applications, the Bank Conversion
Application, the Holding Company Applications, the Registration
Statement, the Prospectus or the Proxy Statement which have not been
so disclosed and properly described therein.
In rendering such opinions, such counsel may rely as to matters of fact on
certificates of officers and directors of the Company 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 and the Bank. As used in such counsel's
opinion, the phrase "actual knowledge" shall mean the conscious awareness of
facts or other information by Xxxx X. Xxxxxxxxx, Xxxx X. Xxxxxxxxx and Xxxxx X.
Xxxxxx [others?], who are all the lawyers employed by such counsel who have had
active involvement with such counsel's representation of the Company and the
Bank. Such opinions may be limited to present statutes, regulations and judicial
interpretations and to facts as they presently exist; in rendering such
opinions, such counsel need assume no obligation to revise or supplement them
should the present laws be changed by legislative or regulatory action, judicial
decision or otherwise; and such counsel need express no view, opinion or belief
with respect to whether any proposed or pending legislation, if enacted, or any
regulations or any policy statements issued by any regulatory agency, whether or
not promulgated pursuant to any such legislation, would affect the validity of
the execution and delivery by the Company and the Bank of this Agreement or the
issuance of the Shares.
(b) At the Closing Date, Trident shall receive the letter of Xxxxxxx,
Kantarian & Xxxxxxxxx, P.C., dated the Closing Date, addressed to Trident,
in form and substance reasonably satisfactory to counsel for Trident and to
the effect that, based on such counsel's participation in conferences with
representatives of the Company, the Bank, its counsel, the independent
appraiser, the independent certified public accountants, Trident and its
counsel, review of documents and understanding of applicable law (including
the requirements of
Trident Securities, Inc.
Sales Agency Agreement
Page 25
Form S-1 and the character of the Registration Statement contemplated
thereby), nothing has come to such counsel's attention that would lead it
to believe that the Registration Statement (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
need express no comment), at the time it became effective, and at the time
any post-effective amendment thereto 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 not
misleading, or that the Prospectus (except as to financial statements,
notes to financial statements, financial tables and other financial and
statistical data contained therein as to which such counsel need express no
comment), as of the date of the Prospectus, at the time the Prospectus or
any amendment or supplement thereto was filed with the Commission or
transmitted to the Commission for filing 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).
(c) Counsel for Trident shall have been furnished such documents as
they reasonably may require for the purpose of enabling them to review or
pass upon the matters required by Trident, and for the purpose of
evidencing the accuracy, completeness or satisfaction of any of the
representations, warranties or conditions herein contained, including but
not limited to, resolutions of the Board of Directors of the Company and
the Bank regarding the authorization of this Agreement and the transactions
contemplated hereby.
(d) Prior to and at the Closing Date, in the reasonable opinion of
Trident, (i) there shall have been no material change in the condition,
financial or otherwise, business or results of operations of the Company
and the Bank, taken as a whole, since the latest date as of which such
condition is set forth in the Prospectus, except as referred to therein;
(ii) there shall have been no transaction entered into by the Company or
the Bank after the latest date as of which the financial condition of the
Company or the Bank is set forth in the Prospectus other than transactions
referred to or contemplated therein, transactions in the ordinary course of
business, and transactions which are not material to the Company and the
Bank, taken as a whole; (iii) none of the Company or the Bank shall have
received from the Administrator, the FDIC, the Commissioner, the Banking
Commission or the Federal Reserve Board or the Commission any direction
(oral or written) to make any change in the method of conducting their
respective businesses which is material to the business of the Company and
the Bank, and upon conversion the Commercial Bank, taken as a whole, with
Trident Securities, Inc.
Sales Agency Agreement
Page 26
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
and the Bank, and upon conversion the Commercial Bank, or affecting any of
their respective assets, wherein an unfavorable decision, ruling or finding
would have a material adverse effect on the business, operations, financial
condition or income of the Company and the Bank, and upon conversion the
Commercial Bank, taken as a whole; and (v) the Shares shall have been
qualified or registered for offering and sale by the Company under the
securities laws of such jurisdictions as Trident and the Company shall have
agreed upon.
(e) At the Closing Date, Trident shall receive a certificate of the
principal executive officer and the principal financial officer of each of
the Company and the Bank, dated the Closing Date, to the effect that: (i)
they have examined the Prospectus and, at the time the Prospectus became
authorized by the Company for use, the Prospectus did not contain an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in light of the circumstances under
which they were made, not misleading with respect to the Company or the
Bank; (ii) since the date the Prospectus became authorized by the Company
for use, no event has occurred which should have been set forth in an
amendment or supplement to the Prospectus which has not been so set forth,
including specifically, but without limitation, any material change in the
business, condition (financial or otherwise) or results of operations of
the Company or the Bank and, the conditions set forth in clauses (ii)
through (iv) inclusive of subsection (d) of this Section 7 have been
satisfied; (iii) to the best knowledge of such officers, no order has been
issued by the Commission or the Administrator, the FDIC, the Commissioner,
the Banking Commission or the Federal Reserve Board 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
Administrator, the FDIC, the Commissioner, the Banking Commission or the
Federal Reserve Board; (iv) to the best knowledge of such officers, no
person has sought to obtain review of the final actions of the
Administrator, the FDIC, the Commissioner, the Banking Commission and the
Federal Reserve Board approving or not objecting to, as applicable, the
respective Conversion Applications, Bank Conversion Application and Holding
Company Applications; 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,
copies of all governmental authorizations, approvals, notices of intention
not to object and certificates obtained in connection with the Conversion,
including (i) a copy of the letter from the Administrator authorizing the
use of the Prospectus and the Proxy Statement, (ii)
Trident Securities, Inc.
Sales Agency Agreement
Page 27
a copy of the order of the Commission declaring the Registration Statement
effective; (iii) a copy of the letter from the Administrator evidencing the
corporate existence of the Bank; (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 articles of incorporation certified by the
appropriate Delaware governmental authority; (vi) if available, a copy of
the letter from the Administrator approving the Bank's Stock Articles of
Incorporation; and (vii) if available, a copy of the letter from the
Commissioner approving the Commercial Bank's Bank Articles of
Incorporation.
(g) As soon as available after the Closing Date, Trident shall receive
a certified copy of the Bank's Stock Articles of Incorporation executed or
endorsed by the appropriate governmental authority and a certified copy of
the Commercial Bank's Bank Articles of Incorporation executed or endorsed
by the appropriate governmental authority.
(h) Concurrently with the execution of this Agreement, Trident
acknowledges receipt of letters from Coopers & Xxxxxxx, L.L.P., 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 Coopers & Xxxxxxx,
L.L.P., independent certified public accountants, dated the Closing Date
and addressed to Trident and the Company, confirming the statements made by
them in the letter delivered by them pursuant to the preceding subsection
as of a specified date not more than five (5) days prior to the Closing
Date.
All such opinions, certificates, letters and documents shall be in
compliance with the provisions hereof only if they are, in the reasonable
opinion of Trident and its counsel, satisfactory to Trident and its counsel. Any
certificates signed by an officer or director of the Company or the Bank
prepared for Trident's reliance and delivered to Trident or to counsel for
Trident shall be deemed a representation and warranty by the Company and the
Bank, and upon conversion the Commercial Bank, to Trident as to the statements
made therein. If any condition to Trident's obligations hereunder to be
fulfilled prior to or at the Closing Date is not so fulfilled, Trident may
terminate this Agreement or, if Trident so elects, may waive in writing any such
conditions which have not been fulfilled, or may extend the time of their
fulfillment. If Trident terminates this Agreement as aforesaid, the Company and
the Bank shall reimburse Trident for its expenses as provided in Section 3(b)
hereof.
Trident Securities, Inc.
Sales Agency Agreement
Page 28
8. Indemnification.
----------------
(a) The Company and the Bank jointly and severally agree to indemnify
and hold harmless Trident, its officers, directors and employees and each
person, if any, who controls Trident within the meaning of Section 15 of
the Securities 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 Bank in this Agreement or any breach of warranty by the
Company or the Bank with respect to this Agreement or arising out of or
based upon any untrue or alleged untrue statement of a material fact or the
omission or alleged omission of a material fact required to be stated or
necessary to make not misleading any statements contained in (i) the
Registration Statement, the Prospectus or the Proxy Statement or (ii) any
application (including the Conversion Applications, Bank Conversion
Application and Holding Company Applications) or other document or
communication (in this Section 8 collectively called "Application")
prepared or executed by or on behalf of the Company or the Bank or based
upon information furnished by or on behalf of the Company or the Bank,
whether or not filed in any jurisdiction, to effect the Conversion or
qualify the Shares under the securities laws thereof or filed with the
Administrator, the FDIC, the Commissioner, the Banking Commission or the
Federal Reserve Board or the Commission, unless such statement or omission
was made in reliance upon and in conformity with written information
furnished to the Company or the Bank with respect to Trident by or on
behalf of Trident expressly for use in the Prospectus or any amendment or
supplement thereof or in any Application, as the case may be, or (B) the
participation by Trident in the Conversion, unless it is determined by
final judgment of a court having jurisdiction over the matter that such
loss, liability, claim, damage or expense is primarily a result of
Trident's gross negligence. This indemnity shall be in addition to any
liability the Company and the Bank may have to Trident otherwise.
(b) The Company shall indemnify and hold Trident harmless for any
liability whatsoever arising out of (i) the Allocation Instructions or (ii)
any records of account holders, depositors, borrowers and other members of
the Bank delivered to Trident by the Bank or its agents for use during the
Conversion.
(c) Trident agrees to indemnify and hold harmless the Company and the
Bank, their officers, directors and employees and each person, if any, who
controls the Company or the Bank within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act, to the same extent and
subject to the same limitations as the foregoing
Trident Securities, Inc.
Sales Agency Agreement
Page 29
indemnity from the Company and the Bank to Trident, but only with respect
to (A) statements or omissions, if any, made in the Prospectus or any
amendment or supplement thereof, in any Application or to a purchaser of
the Shares in reliance upon, and in conformity with, written information
furnished to the Company or the Bank with respect to Trident by or on
behalf of Trident expressly for use in the Prospectus or in any Application
or (B) any misrepresentation or breach of warranty by Trident in Section
2(b) of 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 any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party, and after notice from
the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party will not be liable to
such indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defense thereof other than the reasonable cost of investigation except as
otherwise provided herein. In the event the indemnifying party elects to
assume the defense of any such action and retain counsel acceptable to the
indemnified party, the indemnified party may retain additional counsel, but
shall bear the fees and expenses of such counsel unless (i) the
indemnifying party shall have specifically authorized the indemnified party
to retain such counsel or (ii) the parties to such suit include such
indemnifying party and the indemnified party, and such indemnified party
shall have been advised by counsel that one or more material legal defenses
may be available to the indemnified party which may not be available to the
indemnifying party, in which case the indemnifying party shall not be
entitled to assume the defense of such suit notwithstanding the
indemnifying party's obligation to bear the fees and expenses of such
counsel. An indemnifying party against whom indemnity may be sought shall
not be liable to indemnify an indemnified party under this Section 8 if any
settlement of any such action is effected without such indemnifying party's
consent. To the extent required by law, this Section 8 is subject to and
limited by the provisions of Section 23A.
9. Contribution. In order to provide for just and equitable contribution
------------
in circumstances in which the indemnity agreement provided for in Section 8
above is for any reason held to be unavailable to Trident, the Company and/or
the Bank other than in accordance with its terms, the
Trident Securities, Inc.
Sales Agency Agreement
Page 30
Company or the Bank and Trident shall contribute to the aggregate losses,
liabilities, claims, damages, and expenses of the nature contemplated by said
indemnity agreement incurred by the Company or the Bank and Trident (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Bank on the one hand and Trident on the other from the offering
of the Shares or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above, but also the
relative fault of the Company or the Bank on the one hand and Trident on the
other hand in connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Bank on the one hand and Trident on the other shall be deemed to be in the same
proportions as the total net proceeds from the Conversion (before deducting
expenses) received by the Company and the Bank bear to the total fees received
by Trident under this Agreement. The relative fault of the Company or the Bank
on the one hand and Trident on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Bank or by Trident and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the Bank and Trident agree that it would not be just and
equitable if contribution pursuant to this Section 9 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by the indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 9, Trident shall not be required
to contribute any amount in excess of the amount by which fees owed Trident
pursuant to this Agreement exceeds the amount of any damages which Trident has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 1 l(f) of the Securities 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 9 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 Bank, and upon conversion the
Commercial Bank, and Trident and the representations and warranties of the
Company and the Bank and of Trident set forth in or made pursuant to this
Agreement shall remain in full force and effect, regardless of any termination
or
Trident Securities, Inc.
Sales Agency Agreement
Page 31
cancellation of this Agreement or any investigation made by or on behalf of
Trident or the Company or the Bank, and upon conversion the Commercial Bank, or
any controlling person or indemnified party referred to in Section 8 hereof, and
shall survive any termination or consummation of this Agreement and/or the
issuance of the Shares, and any legal representative of Trident, the Company,
the Bank and any such controlling persons shall be entitled to the benefit of
the respective agreements, indemnities, warranties and representations.
11. Termination. Trident may terminate this Agreement by giving the notice
-----------
indicated below in this Section at any time after this Agreement becomes
effective as follows:
(a) If any domestic or international event or act or occurrence has
materially disrupted the United States securities markets such as to make
it, in Trident's opinion, impracticable to proceed with the offering of the
Shares; or if trading on the New York Stock Exchange shall have suspended;
or if the United States shall have become involved in a war or major
hostilities; or if a general banking moratorium has been declared by a
state or federal authority which has material effect on the Bank or the
Conversion; or if a moratorium in foreign exchange trading by major
international banks or persons has been declared; or if there shall have
been a material change in the capitalization, condition or business of the
Company, or if the Bank shall have sustained a material or substantial loss
by fire, flood, accident, hurricane, earthquake, theft, sabotage or other
calamity or malicious act, whether or not said loss shall have been
insured; or if there shall have been a material change in the condition or
prospects of the Company or the Bank or a material breach of this Agreement
by the Company or the Bank.
(b) If Trident elects to terminate this Agreement as provided in this
Section, the Company and the Bank shall be notified promptly by Trident by
telephone or telegram, confirmed by letter.
(c) If this Agreement is terminated by Trident for any of the reasons
set forth in subsection (a) above, and to fulfill its obligations, if any,
pursuant to Sections 3, 6, 8(a) and 9 of this Agreement and upon demand,
the Company and the Bank shall pay Trident the full amount so owing
thereunder.
(d) The Bank may terminate the Conversion in accordance with the terms
of the Plan. Such termination shall be without liability to any party,
except that the Company, the Bank and Trident shall be required to fulfill
their obligations pursuant to Sections 3(b), 3(c), 6, 8 and 9 of this
Agreement.
Trident Securities, Inc.
Sales Agency Agreement
Page 32
(e) The Bank may terminate this Agreement with respect to Trident if
there shall have been a material breach of this Agreement by Trident.
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 Brooks, Pierce, XxXxxxxx, Xxxxxxxx & Xxxxxxx,
L.L.P., 000 Xxxxx Xxx Xxxxxx, 0000 Xxxxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxx Xxxxxxxx
00000, Attention: Xxxx X. Xxxxxx, Esquire) and if sent to the Company or the
Bank, shall be mailed, delivered or telegraphed and confirmed to NewSouth
Bancorp, Inc., Home Savings Bank, SSB, 0000 Xxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxx
Xxxxxxxx 00000, Attention: Xx. Xxxxxx X. Xxxx, President (with a copy to
Xxxxxxx, Xxxxxxxxx & Xxxxxxxxx, X.X., Xxxxx 000, 0000 00xx Xxxxxx, X.X.,
Xxxxxxxxxx, X.X. 00000, Attention: Xxxx X. Xxxxxxxxx).
13. Parties. This Agreement shall inure solely to the benefit of, and
-------
shall be binding upon, Trident, the Company, the Bank and the controlling and
other persons referred to in Section 8 hereof, and their respective successors,
legal representatives and assigns, and no other person shall have or be
construed to have any legal or equitable right, remedy or claim under or in
respect of or by virtue of this Agreement or any provision herein contained.
14. Construction. Unless governed by preemptive federal law, this
------------
Agreement shall be governed by and construed in accordance with the substantive
laws of North Carolina.
15. Amendment. This Agreement may be amended only by a subsequent writing
-----------
signed by all of the parties hereto.
16. 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.
Trident Securities, Inc.
Sales Agency Agreement
Page 33
Please acknowledge your agreement to the foregoing by signing below and
returning to the Company one copy of this letter.
NEWSOUTH BANCORP, INC. HOME SAVINGS BANK, SSB
By: By:
------------------------------- ----------------------------------
Xxxxxx X. Xxxx, President Xxxxxx X. Xxxx, President
Date: Date:
----------------------------- --------------------------------
Agreed to and accepted:
TRIDENT SECURITIES, INC.
By:
-------------------------------
Date:
-----------------------------
Trident Securities, Inc.
Sales Agency Agreement
Page 34
Please acknowledge your agreement to the foregoing by signing below and
returning to the Company one copy of this letter.
NEWSOUTH BANCORP, INC. HOME SAVINGS BANK, SSB
By: By:
------------------------------- ----------------------------------
Xxxxxx X. Xxxx, President Xxxxxx X. Xxxx, President
Date: Date:
----------------------------- --------------------------------
Agreed to and accepted:
TRIDENT SECURITIES, INC.
By:
-------------------------------
Date:
-----------------------------
Trident Securities, Inc.
Sales Agency Agreement
Page 35
Exhibit A
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
