Exhibit 1.2
SERVICE BANCORP, INC.
SUMMIT BANK
765,000 to 1,190,250 Shares
Common Stock
(Par Value $.01 Per Share)
$10.00 Per Share
SALES AGENCY AGREEMENT
July [ ], 1998
Trident Securities, Inc.
4601 Six Forks Road, Suite 400
Raleigh, North Carolina 27609
Ladies and Gentlemen:
Service Bancorp, Inc., a Massachusetts corporation (the "Company"),
Service Bancorp, MHC, a Massachusetts-chartered mutual holding company (the
"MHC"), and Summit Bank, a Massachusetts-chartered stock savings bank (the
"Bank"), each hereby confirm, as of July [ ], 1998, their respective agreements
with Trident Securities, Inc. ("Trident"), a broker-dealer registered with the
Securities and Exchange Commission (the "Commission") and a member of the
National Association of Securities Dealers, Inc. ("NASD"), as follows:
1. Introduction. On April 1, 1998, the Board of Directors of the Bank
and the Board of Trustees of the MHC adopted a stock issuance plan (the "Plan")
pursuant to which the Company was incorporated as a direct subsidiary of the MHC
to own 100% of the capital stock of the Bank (together with the Offerings, as
defined below, the "Reorganization"). In accordance with the Plan, the Company
is offering 45% of the shares of its common stock, par value $.01 per share (the
"Shares" and the "Common Stock"), pursuant to nontransferable subscription
rights in a subscription offering (the "Subscription Offering") to certain
depositors of the Bank, the Bank's tax-qualified employee benefit plans (i.e.,
the Bank's Employee Stock Ownership Plan (the "ESOP")), and employees officers,
directors, and trustees of the Bank and the MHC. Shares for which subscriptions
are not received in the Subscription Offering may be offered to members of the
general public in a community offering, with preference being given first to
natural persons residing in the towns of Franklin, Medway, Medfield, and Millis,
Massachusetts (the "Community Offering") (the Subscription Offering and the
Community Offering are sometimes referred to collectively as the "Offerings"),
subject to the right of the Company and the Bank, in their absolute discretion,
to reject orders in the Community Offering in whole or in part. In the
Offerings, the Company is offering between 765,000 and 1,035,000 Shares, with
the possibility of offering up to 1,190,250 Shares without a resolicitation of
subscribers. Except for certain benefit plans, no individual person,
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Sales Agency Agreement
Page 2
persons having a joint account, or persons acting in concert may purchase more
than $100,000 of Shares issued in the Reorganization.
The Company and the Bank have been advised by Trident that it will
utilize its best efforts to assist the Company and the Bank with the sale of the
Shares in the Offerings and, if deemed necessary by the Company, in a syndicated
community offering (the "Syndicated Community Offering"). Prior to the execution
of this Agreement, the Company has delivered to Trident (a) the Prospectus,
dated [ ], 1998, (as hereinafter defined), (b) the Notice and Information
Statement, dated July 7, 1998, for the solicitation of votes from the
corporators of the MHC (the "Corporators") at the Special Meeting of Corporators
to approve the Plan (the "Notice and Information Statement"), and (c) all
supplements thereto, if any, to be used in the Reorganization. The Prospectus
and the Notice and Information Statement contain information with respect to the
Company, the MHC, the Bank, and the Shares.
2. Representations and Warranties.
(a) The Company, the MHC, and the Bank. The Company and the Bank,
jointly and severally, represent and warrant as of the date of this
Agreement, and the Company, the MHC, and the Bank, jointly and
severally, represent and warrant as of the Closing Date (as
hereinafter defined), 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 SB-2 (No. 333-xxxxx), including a Prospectus relating to
the Offerings, for the registration of the Shares under the
Securities Act of 1933, as amended (the "Act"); and such
registration statement has become effective under the Act and no
stop order has been issued with respect thereto and no
proceedings therefor have been initiated or, to the Company's
knowledge, threatened by the Commission. Except as the context
may otherwise require, such registration statement, as amended
or supplemented, on file with the Commission at the time the
registration statement became effective, including the
Prospectus, financial statements, schedules, exhibits and all
other documents filed as part thereof, as amended and
supplemented, is herein called the "Registration Statement," and
the Prospectus, as amended or supplemented, on file with the
Commission at the time the Registration Statement became
effective is herein called the "Prospectus," except that if the
Prospectus filed by the Company with the Commission pursuant to
Rule 424(b) of the general rules and regulations of the
Commission under the Act (together with the enforceable
published policies and actions of the Commission thereunder, the
"SEC Regulations") differs from the form of Prospectus on file
at the time the Registration Statement became effective, the
term "Prospectus" shall refer to the Rule 424(b) Prospectus from
and after the time it is filed with or mailed for filing to the
Commission and shall include any amendments or supplements
thereto
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from and after their dates of effectiveness or use,
respectively. If any Shares remain unsubscribed following
completion of the Subscription Offering and the Community
Offering, if any, the Company (i) will promptly file with the
Commission a post-effective amendment to such Registration
Statement relating to the results of the Subscription Offering
and the Community Offering, if any, any additional information
with respect to the proposed plan of distribution and any
revised pricing information or (ii) if no such post-effective
amendment is required, will file with, or mail for filing to,
the Commission a Prospectus or Prospectus supplement containing
information relating to the results of the Subscription and the
Community Offerings and pricing information pursuant to Rule
424(c) of the SEC Regulations, in either case in a form
reasonably acceptable to the Company and Trident.
(ii) The Bank and the MHC have filed an Application for
Approval of: (i) Establishment of "Mid-Tier" Stock Holding
Company; and (ii) Issuance by such Company of Securities to the
General Public, including exhibits attached thereto (as amended
or supplemented, the "Division Application") with the
Commonwealth of Massachusetts Division of Banks (the "Division")
which has been approved by the Division; and the Prospectus and
the Notice and Information Statement included as part of the
Division Application have been approved for use by the Division.
No order has been issued by the Division preventing or
suspending the use of the Prospectus or the Notice and
Information Statement; and no action by the Division revoking
such approvals is pending or, to the Bank's knowledge,
threatened. Additionally, the Company has filed an application
to register as a bank holding company (the "Holding Company
Application") with the Board of Governors of the Federal Reserve
System (the "Federal Reserve") which has been approved by the
Federal Reserve. No action by or before the Federal Reserve
revoking such approval is pending or, to the Bank's knowledge,
threatened.
(iii) At the date of the Prospectus and at all times
subsequent thereto through and including the Closing Date (as
hereinafter defined) (i) the Registration Statement and the
Prospectus (as amended or supplemented, if amended or
supplemented) complied with and will comply with the Act and the
SEC Regulations, (ii) the Prospectus and the Notice and
Information Statement (as amended and supplemented, if amended
and supplemented) complied with and will comply with all
applicable provisions of the Massachusetts General Laws, as
amended, and the rules and regulations of the Division and other
applicable Massachusetts law (collectively, the "Division
Regulations"), (iii) the Registration Statement (as amended or
supplemented, if amended or supplemented) did not and will 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 (iv) the
Prospectus and the Notice and Information Statement (as amended
or supplemented, if amended or supplemented) did not contain any
untrue
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statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the
statements therein not misleading. Representations or warranties
in this subsection shall not apply to statements or omissions
made in reliance upon and in conformity with written information
furnished to the Company or the Bank relating to Trident by or
on behalf of Trident expressly for use in the Registration
Statement, the Prospectus, or the Notice and Information
Statement.
(iv) The Company is duly organized and is in good standing
as a business corporation under the laws of the Commonwealth of
Massachusetts. The MHC is duly organized and is in good standing
as a mutual holding company under the laws of the Commonwealth
of Massachusetts. The Bank is duly organized and has a corporate
existence as a stock savings bank under the laws of the
Commonwealth of Massachusetts. Each of the Company, the MHC, and
the Bank is validly existing under the laws of the jurisdiction
of its organization with full power and authority to own its
property and conduct its business as described in the
Registration Statement and Prospectus. The Bank is a member in
good standing of the Federal Home Loan Bank of Boston, and the
deposit accounts of the Bank are insured by the Bank Insurance
Fund ("BIF") of the Federal Deposit Insurance Corporation (the
"FDIC"), up to the maximum amount permitted by law, and by the
Depositors Insurance Fund in excess of such amount. Each of the
Company, the MHC, and the Bank is not required to be qualified
to do business as a foreign corporation in any jurisdiction
where non-qualification would have a material adverse effect on
the condition (financial or otherwise), operations, business,
assets, earnings, or properties ("Material Adverse Effect"), on
the Company and the Bank, taken as a whole. Upon completion of
the transactions contemplated by the Prospectus, (i) all of the
authorized and outstanding capital stock of the Bank will be
owned of record and beneficially by the Company, (ii) all of the
authorized and outstanding stock of the Company will be issued
to the MHC and the public, and (iii) the Company will have no
direct subsidiaries other than the Bank.
(v) The Bank does not own equity securities of, or an equity
interest in, any business enterprise except as described in the
Prospectus; and such equity securities and equity interests are
owned by the Bank in accordance with all applicable law.
(vi) The Bank has good, marketable and insurable title to
all assets material to its business and to those assets
described in the Prospectus as owned by it, free and clear of
all material liens, charges, encumbrances or restrictions,
except for liens for taxes not yet due, except as described in
the Prospectus or are not expected to have a Material Adverse
Effect on the Bank and the Company, taken as a whole; and all of
the leases and subleases material to the operations or financial
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condition of the Bank under which it holds properties, including
those described in the Prospectus, are in full force and effect
as described therein.
(vii) The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been
duly and validly authorized by all necessary actions on the part
of each of the Company, the MHC, and the Bank, and this
Agreement is a valid and binding obligation of each of the
Company, the MHC, and the Bank enforceable in accordance with
its terms (except as the enforceability thereof may be limited
by bankruptcy, insolvency, moratorium, reorganization or similar
laws relating to or affecting the enforcement of creditors'
rights generally or the rights of creditors of bank holding
companies the accounts of whose subsidiaries are insured by the
FDIC or by general equity principles, regardless of whether such
enforceability is considered in a proceeding in equity or at
law, and except to the extent that the provisions of Sections 8
and 9 hereof may be unenforceable as against public policy or
pursuant to Sections 23A or 23B of the Federal Reserve Act, 12
U.S. C. Sections 371c ("Section 23A" or 371c-1 ("Section 23B")).
(viii) There is no litigation or governmental proceeding
pending or, to the knowledge of the Company, the MHC, or the
Bank, threatened against or involving the Company, the MHC, the
Bank, or any of their respective assets which individually or in
the aggregate would reasonably be expected to have a Material
Adverse Effect on of the Company, the MHC, and the Bank, taken
as a whole.
(ix) The Company, the MHC, and the Bank have received the
opinion of Luse Lehman Gorman Pomerenk & Schick, P.C. with
respect to federal income tax consequences of the
Reorganization, to the effect that the Reorganization will
constitute a tax-free reorganization under the Internal Revenue
Code of 1986, as amended, and an opinion from Wolf & Company
P.C., that the Reorganization will not be a taxable transaction
for the Bank or the Company under the laws of the Commonwealth
of Massachusetts, and the facts relied upon in such opinions are
accurate and complete.
(x) Each of the Company, the MHC, and the Bank has all such
corporate power, authority, authorizations, approvals, and
orders as may be required to enter into this Agreement and to
carry out the provisions and conditions hereof, subject to the
limitations set forth herein and subject to the satisfaction of
certain conditions imposed by the Division and/or the Federal
Reserve in connection with their approvals of the Division
Application and the Holding Company Application and except as
may be required under the securities, or "blue sky," laws of
various jurisdictions, and, in the case of the Company, as of
the Closing Date (as hereinafter defined), 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 (as hereinafter
defined), to issue
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and sell the shares of its capital stock to be sold to the
Company as provided in the Plan.
(xi) None of the Company, the MHC, nor the Bank is in
violation of any rule or regulation of the Division or the FDIC
that could reasonably be expected to result in any enforcement
action against the Company, the MHC, the Bank, or their officers
or directors that might have a Material Adverse Effect on the
Company, the MHC, and the Bank, taken as a whole.
(xii) The consolidated financial statements and any related
notes or schedules which are included in the Registration
Statement and the Prospectus fairly present the consolidated
financial condition, income, net worth, 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 both the SEC Regulations
and the Division Regulations. Such financial statements have
been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved,
except as set forth therein, and such financial statements are
consistent with financial statements and other reports filed by
the Bank with supervisory and regulatory authorities, except as
such generally accepted accounting principles may otherwise
require. The tables and other financial, statistical, and pro
forma information and related notes in the Prospectus accurately
present the information purported to be shown thereby at the
respective dates thereof and for the respective periods covered
thereby.
(xiii) There has been no material change in the financial
condition, results of operations or business, including assets
and properties, of the Company, the MHC, and the Bank, taken as
a whole, since the latest date as of which such condition is set
forth in the Prospectus, except as set forth therein; and the
capitalization, assets, properties, and business of each of the
Company, the MHC, and the Bank conform to the descriptions
thereof contained in the Prospectus. None of the Company, the
MHC, nor the Bank has any material liabilities of any kind,
contingent or otherwise, except as specifically set forth in the
Prospectus.
(xiv) There has been no breach or default (or the occurrence
of any event which, with notice or lapse of time or both, would
constitute a default) under, or creation or imposition of any
lien, charge or other encumbrance upon any of the properties or
assets of the Company, the MHC, and 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, the MHC, or the Bank is a party or by which
any of them or any of their respective assets or properties may
be bound or is subject, or violation of any governmental license
or permit or any enforceable published law, administrative
regulation, or order or court order, writ,
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Page 7
injunction, or decree, which breach, default, encumbrance, or
violation would have a Material Adverse Effect on the Company,
the MHC, and the Bank, taken as a whole; all agreements which
are material to the financial condition, results of operations,
or business of the Company, the MHC, and the Bank, taken as a
whole, are in full force and effect, and no party to any such
agreement has instituted or, to the knowledge of the Company,
the MHC, and the Bank, threatened any action or proceeding
wherein the Company, the MHC, or the Bank would be alleged to be
in default thereunder.
(xv) None of the Company, the MHC, nor the Bank is in
violation of its respective articles of incorporation, charter,
or bylaws. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby do not
conflict with or result in a breach of the respective articles
of incorporation, charter, or bylaws of the Company, the MHC, or
the Bank, 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, the MHC, or the Bank pursuant to any of the terms,
provisions, or conditions of, any material agreement, contract,
indenture, bond, debenture, note, instrument, or obligation to
which the Company, the MHC, or the Bank is a party, or violate
any governmental license or permit or any enforceable published
law, administrative regulation, order or court order, writ,
injunction, or decree (subject to the satisfaction of certain
conditions imposed by the Division or the Federal Reserve in
connection with their approval of the Division Application or
the Holding Company Application, respectively), which breach,
default, encumbrance or violation would have a Material Adverse
Effect on the Company, the MHC, and the Bank, taken as a whole.
(xvi) Subsequent to the respective dates as of which
information is given in the Registration Statement, the
Prospectus, or the Notice and Information Statement and prior to
the Closing Date (as hereinafter defined), except as otherwise
may be indicated or contemplated therein, none of the Company,
the MHC, nor the Bank has issued any securities which will
remain issued at the Closing Date (as hereinafter defined) or
incurred any liability or obligation, direct or contingent, or
borrowed money, except borrowings by the Bank 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, the MHC, and the Bank.
(xvii) Upon consummation of the Reorganization, 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 equity or debt
securities
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of the Company have been or shall be issued and outstanding
prior to the Closing Date (as hereinafter defined); the issuance
and the sale of the Shares of the Company have been duly
authorized by all necessary action of the Company and approved
by the Division and, when issued in accordance with the terms of
the Plan and paid for, shall be validly issued, fully paid, and
nonassessable and shall conform to the description thereof
contained in the Prospectus; the issuance of the Shares is not
subject to preemptive rights, except as set forth in the
Prospectus; and good title to the Shares will be transferred by
the Company upon issuance thereof against payment therefor, free
and clear of all claims, encumbrances, security interests, and
liens 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 (a) the capital stock of the Bank to the
Company and (b) the Shares of the Company to the MHC and the
public have been duly authorized by all necessary action of the
Bank and the Company and appropriate regulatory authorities
(subject to the satisfaction of various conditions, if any,
imposed by the Division or the Federal Reserve in connection
with their approvals of the Division Application and the Holding
Company Application, respectively), and such capital stock, when
issued in accordance with the terms of the Plan, will be fully
paid and nonassessable and will conform in all material respects
to the description thereof contained in the Prospectus.
(xviii) No approval of any regulatory or supervisory or
other public authority is required in connection with the
execution and delivery of this Agreement or the issuance of the
Shares, except for the declaration of effectiveness of any
required post-effective amendment by the Commission and final
approvals of the Reorganization by the Division and approval of
the Company's Holding Company Application by the Federal
Reserve, and as may be required under the securities laws of
various jurisdictions.
(xix) All contracts and other documents required to be filed
as exhibits to the Registration Statement, the Division
Application, or the Holding Company Application have been filed
with the Commission, the Division, and/or the Federal Reserve,
as the case may be.
(xx) Wolf & Company, P.C., which has audited the
consolidated financial statements of the Bank at June 30, 1997
and 1996 and for the years ended June 30, 1997 and 1996 included
in the Prospectus, are, and were during the period covered in
its report in the Prospectus, independent public accountants
within the meaning of the Code of Professional Ethics of the
American Institute of Certified Public Accountants and Title 12
of the Code of Federal Regulations, Section 303.15.
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(xxi) RP Financial, L.C., which has prepared the
Reorganization appraisal, dated [May 29], 1998, described in the
Prospectus is independent of the Company and the Bank within the
meaning of the Division Regulations and the regulations
promulgated by the FDIC (the "FDIC Regulations"), is believed by
the Company and the Bank to be experienced and expert in
rendering corporate appraisals of savings institutions, and the
Company and the Bank have no reason to believe that RP
Financial, L.C. has not prepared the pricing information set
forth in the Prospectus in accordance with the requirements of
the Division Regulations and the FDIC Regulations.
(xxii) The Company, the MHC, and the Bank have timely filed
all required federal, state, and local franchise tax returns and
no deficiency has been asserted with respect to such returns by
any taxing authorities, have paid all taxes that have become due
and, to 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
Company, the MHC, and the Bank, taken as a whole.
(xxiii) 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, without
limitation, the requirements of Regulation Z and 12 C.F.R. Part
226), 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, the MHC, and the Bank, taken as a whole.
(xxiv) 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 Reorganization are
reliable, accurate, and complete, and Trident shall have no
liability to any person relating to the reliability, accuracy,
or completeness of such records or for any denial or allocation
of a subscription to purchase Shares to any person based upon
such records.
(xxv) To the knowledge of the Company, the MHC, and the
Bank, none of the Company, the MHC, the Bank, nor directors,
trustees, or employees of the Company, the MHC, or the Bank have
made any payment of, or set aside any, funds of the Company, the
MHC, or the Bank as a loan to any person other than to the ESOP
for the purchase of the Shares or as otherwise prohibited by
law.
(xxvi) To the knowledge of the Company, the MHC, and the
Bank, the Company, the MHC, and the Bank are in compliance in
all material respects with all
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Environmental Law (as hereinafter defined), and none of the
Company, the MHC, nor the Bank has been notified or is otherwise
aware that any of them is potentially liable, or is considered
potentially liable, under any Environmental Law, including the
Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. ss. 9601 et seq. or any similar state or local
law. There are no actions, suits, regulatory investigations or
other proceedings pending or, to the knowledge of the Company,
the MHC, or the Bank, threatened against the Company, the MHC,
or the Bank relating to Environmental Law matters, nor does the
Company, the MHC, or the Bank have any reason to believe any
such proceedings may be brought against any of them. To the
knowledge of the Company, the MHC, and the Bank, no disposal,
release, or discharge of hazardous waste, hazardous substances,
toxic substances, pollutants, irritants or contaminants,
including petroleum and gas products, as any of such terms may
be defined under any Environmental Law, has occurred on, in, at
or about any of the facilities or properties of the Company, the
MHC, or the Bank in violation of Environmental Law, or, to the
knowledge of the Company, the MHC, and the Bank, has occurred
on, in, at, or about any of the facilities or properties pledged
to the Bank as collateral for any loan or extension of credit by
the Bank, except such disposal, release or discharge as
reasonably could not be deemed to have a Material Adverse Effect
on the Company, the MHC, and the Bank, taken as a whole.
"Environmental Law" means any federal, state, local or
foreign law, statute, ordinance, rule, regulation, code,
license, permit, authorization, approval, consent, order,
judgment, decree, injunction or agreement with any agency (i.e.,
any federal, state or local agency responsible for regulating or
enforcing the matters identified herein) relating to (i) the
protection, preservation or restoration of the environment
(including, without limitation, air, water vapor, surface water,
groundwater, drinking water supply, surface soil, subsurface
soil, plant and animal life or any other natural resource),
and/or (ii) the usage, storage, recycling, treatment,
generation, transportation, processing, handling, labeling,
production, release or disposal of any substance presently
listed, defined, designated or classified as hazardous, toxic,
radioactive or dangerous, or otherwise regulated, whether by
type or by quantity, including any material containing any such
substance as a component.
(xxvii) At the Closing Date (as hereinafter defined), the
Company, the MHC, and the Bank will have completed the
conditions precedent to, and shall have conducted the
Reorganization in all material respects in accordance with, the
Plan, the Division Regulations and all other applicable laws,
regulations, published decisions, and orders, including all
terms, conditions, requirements, and provisions precedent to the
Reorganization imposed by the Division and the Federal Reserve.
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(b) Trident. Trident represents and warrants to the Company, the
MHC, 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 the State of North Carolina, with
full corporate power and authority to provide the services to be
furnished to the Company, the MHC, and the Bank hereunder.
(iii) The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been
duly and validly authorized by all necessary action on the part
of Trident, and this Agreement is a legal, valid, and binding
obligation of Trident, enforceable in accordance with its terms
(except as the enforceability thereof may be limited by
bankruptcy, insolvency, moratorium, reorganization, or similar
laws relating to or affecting the enforcement of creditors'
rights generally or the rights of creditors of registered
broker-dealers accounts of whose may be protected by the
Securities Investor Protection Corporation or by general equity
principles, regardless of whether such enforceability is
considered in a proceeding in equity or at law, and except to
the extent that the provisions of Sections 8 and 9 hereof may be
unenforceable as against public policy or pursuant to Section
23A).
(iv) Trident and, to Trident's knowledge, its employees,
agents, and representatives who shall perform any of the
services required hereunder to be performed by Trident shall be
duly authorized and shall have all licenses, approvals, and
permits necessary to perform such services; and Trident is a
registered selling agent in the jurisdictions listed in Exhibit
A attached hereto and will remain registered in such
jurisdictions in which the Company is relying on such
registration for the sale of the Shares, until the
Reorganization is consummated or terminated.
(v) The execution and delivery of this Agreement by Trident,
the fulfillment of the terms set forth herein and the
consummation of the transactions contemplated hereby shall not
violate or conflict with the corporate charter or bylaws of
Trident or constitute a breach of, or default (or an event
which, with notice or lapse of time, or both, would constitute a
default) under any material agreement, indenture, or other
instrument by which Trident is bound or under any governmental
license or permit or any law, administrative regulation,
authorization, approval, or order or court decree, injunction,
or order.
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(vi) Any funds received by Trident to purchase Common Stock
will be handled in accordance with Rule 15c2-4 under the
Securities Exchange Act of 1934, as amended (the "Exchange
Act").
(vii) There is not now pending or, to Trident's knowledge,
threatened against Trident any action or proceeding before the
Commission, the NASD, any state securities commission, or any
state or federal court concerning Trident's activities as a
broker-dealer.
3. Employment of Trident: Sale and Delivery of the Shares. On the basis
of the representations and warranties herein contained, but subject to the terms
and conditions herein set forth, the Company, the MHC, and the Bank hereby
employ Trident as their agent to utilize its best efforts to assist the Company
with its sale of the Shares in the Offerings.
In the event the Company is unable to sell a minimum of 765,000 Shares
(or such lesser amount as the Division may permit) within the period herein
provided, this Agreement shall terminate, and the Company, the MHC, and the Bank
shall refund promptly to any persons who have subscribed for any of the Shares,
the full amount which it may have received from them, together with interest as
provided in the Plan, 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 interest-bearing accounts with the Bank until all
Shares are sold and paid for were made prior to the commencement of the
Offerings, with provision for prompt refund to the purchasers as set forth
above, or for delivery to the Company if all Shares are sold.
If all conditions precedent to the consummation of the Reorganization
are satisfied, including the sale of all Shares required by the Plan to be sold,
the Company agrees to issue or have issued such Shares and to release for
delivery certificates to subscribers thereof for such Shares on or promptly
after the Closing Date (as hereinafter defined). Such release for delivery shall
be against payment to the Company by any means authorized pursuant to the
Prospectus, at the office of the Company at 81 Main Street, Medway,
Massachusetts 02053 or at such other place as shall be agreed upon among the
parties hereto. The date upon which Trident is paid the compensation due
hereunder is herein called the "Closing Date."
Trident may assemble and manage a selling group of broker-dealers,
which are members of the NASD, to participate in the solicitation of orders for
Common Stock in the event of the Syndicated Community Offering. In such event,
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
Trident Securities, Inc.
Sales Agency Agreement
Page 13
execute the order form on the subscribers 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 on the third business day ("debit date") following receipt
of the confirmation referred to in (i), and (iv) Trident will forward completed
order forms together with such funds to the Bank on or before twelve noon on the
next business day following the debit date for deposit in a segregated account.
Trident acknowledges that if the procedure in clause (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 upon
completion and closing of the Reorganization and the Offerings:
(a) A commission equal to two percent (2.0%) of the aggregate dollar
amount of Common Stock sold in the Offerings, excluding any shares of
stock sold to the Bank's directors, executive officers, employees, and
the ESOP; provided, however, that such commission shall not exceed
$150,000. Additionally, commissions are excluded on sale of Common Stock
to "Associates" (as such term is defined in the Plan) of the Bank's
directors and executive officers. For stock sold by other NASD member
firms under selected dealer's agreements, the commission payable shall
be as agreed upon by the Company and Trident to reflect market
requirements at the time of the stock allocation in the Syndicated
Community Offering. All such fees payable to Trident are to be payable
in next day funds to Trident in Raleigh, North Carolina, on the Closing
Date.
(b) Trident shall be reimbursed for allowable expenses, incurred by
it whether or not the Offerings are successfully completed; provided,
however, that (i) reimbursable legal fees (exclusive of "blue sky"
related matters) will not exceed $27,500, exclusive of disbursements,
(ii) other reimbursable expenses will not exceed $10,000, and (iii)
neither the Company nor the Bank shall pay or reimburse Trident for any
of the foregoing expenses accrued after Trident shall have notified the
Company or the Bank of its election to terminate this Agreement pursuant
to Section 11 hereof or after such time as the Company or the Bank shall
have given notice in accordance with Section 12 hereof that Trident is
in breach of this Agreement. Full payment to defray Trident's
reimbursable expenses shall be made in next-day funds on the Closing
Date or, if the Reorganization is not completed and is terminated for
any reason, within ten (10) business days of receipt by the Company of a
written request from 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
and the Syndicated Community Offering to be extended beyond their
original expiration dates, Trident shall be reimbursed for its
Trident Securities, Inc.
Sales Agency Agreement
Page 14
allocable expenses (including legal expenses) incurred during such
extended period, provided that the allowance for allowable expenses
provided for in the immediately preceding paragraph (b) above have been
exhausted.
(d) 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 also shall pay all expenses of the Reorganization including,
but not limited to, their attorneys' fees, NASD filing fees, and filing
and registration 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, and costs of printing all documents necessary
in connection with the Reorganization.
4. Offering. Subject to the provisions of Section 7 hereof, Trident is
assisting the Company on a best efforts basis in offering a minimum of 765,000
and a maximum of 1,035,000 Shares, with the possibility of offering up to
1,190,250 Shares (except as the Division may permit such amount to be decreased
or increased) in a Subscription Offering and, if necessary, any Shares that
remain unsubscribed at the conclusion of the Subscription Offering, in a
Community Offering and a Syndicated Community Offering. The Shares are to be
offered to the public at the price set forth on the cover page of the
Prospectus.
5. Further Agreements. The Company and the Bank, jointly and severally,
covenant and agree that:
(a) The Company shall deliver to Trident, from time to time, such
number of copies of the Prospectus as Trident reasonably may request.
The Company authorizes Trident to use the Prospectus in any lawful
manner in connection with the offer and sale of the Shares.
(b) The Company shall 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 or the Notice and Information Statement has been filed, (ii)
of the issuance by the Commission, the Division or the Federal Reserve
of any stop order relating to the Registration Statement, the Division
Application, the Holding Company Application, the Prospectus, or the
Notice and Information 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 Commission, the Division, or the Federal Reserve
relating to the Registration Statement, the Division Application, the
Holding Company Application, the Prospectus, or the Notice and
Information Statement. If the Commission, the Division, or the Federal
Reserve enters a stop order relating to the Registration Statement, the
Division Application, the Holding Company Application, the Prospectus,
or the Notice and Information Statement at any time, the Company and the
Bank
Trident Securities, Inc.
Sales Agency Agreement
Page 15
shall make every reasonable effort to obtain the lifting of such order
at the earliest possible moment.
(c) During the time when a Prospectus is required to be delivered
under the Act and the Division Regulations, the Company will comply so
far as it is able with all requirements imposed upon it by the Act, as
now in effect and hereafter amended, and by the 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, the
MHC, and the Bank shall occur as a result of which it is necessary, in
the opinion of counsel for Trident to amend or supplement the Prospectus
in order to make the Prospectus not false or misleading in light of the
circumstances existing at the time it is delivered to a purchaser of the
Shares, the Company forthwith shall prepare and furnish to Trident a
reasonable number of copies of an amendment or amendments or of a
supplement or supplements to the Prospectus (in form and substance
satisfactory to counsel for Trident) which shall amend or supplement the
Prospectus so that, as amended or supplemented, the Prospectus shall not
contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
light of the circumstances existing at the time the Prospectus is
delivered to a purchaser of the Shares, not misleading. The Company will
not file or use any amendment or supplement to the Registration
Statement or the Prospectus of which Trident has not first been
furnished a copy or to which Trident shall reasonably object after
having been furnished such copy. For the purposes of this subsection,
the Company and the Bank shall furnish such information with respect to
themselves as Trident from time to time may reasonably request.
(d) The Company and the Bank have taken or will take all reasonably
necessary action as may be required to qualify or register the Shares
for offer and sale by the Company under the securities or blue sky laws
of such jurisdictions as Trident and either the Company or its counsel
may agree upon; provided, however, that the Company shall not be
obligated to qualify as a foreign corporation to do business under the
laws of any such jurisdiction. In each jurisdiction where such
qualification or registration shall be effected, the Company, unless
Trident agrees that such action is not necessary or advisable in
connection with the distribution of the Shares, shall file and make such
statements or reports as are, or reasonably may be, required by the laws
of such jurisdiction.
(e) Appropriate entries will be made in the financial records of the
Bank sufficient to establish a liquidation account for the benefit of
eligible account holders as of March 31, 1997 and supplemental eligible
account holders as of June 30, 1998 in accordance with the requirements
of the Division.
Trident Securities, Inc.
Sales Agency Agreement
Page 16
(f) The Company will file a registration statement for the Common
Stock under Section 12(g) of the Exchange Act, prior to completion of
the stock offering pursuant to the Plan and shall request that such
registration statement be effective upon completion of the
Reorganization. The Company shall maintain the effectiveness of such
registration for a minimum period of three years or for such shorter
period as may be required by applicable law.
(g) The Company will make generally available to its security
holders as soon as practicable, but not later than forty-five (45) days
after the close of the period covered thereby, an earnings statement (in
form complying with the provisions of Rule 158 of the regulations
promulgated under the Act) covering a twelve-month period beginning not
later than the first day of the Company's fiscal quarter next following
the effective date (as defined in said Rule 158) of the Registration
Statement.
(h) For a period of three 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
Notice and Information Statement of the Company filed with the
Commission under the Exchange Act or mailed to shareholders, and (ii)
from time to time, such other public information concerning the Company
as Trident may reasonably request.
(i) The Company shall use the net proceeds from the sale of the
Shares consistently with the manner set forth in the Prospectus under
the caption "Use of Proceeds."
(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 and the Bank 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 the
Corporators, 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
completely and without independent investigation 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) for Shares.
(l) The Company and the Bank will take such actions and furnish such
information, and will cause the MHC to take such actions and furnish
such information, as
Trident Securities, Inc.
Sales Agency Agreement
Page 17
is reasonably requested by Trident in order for Trident to ensure
compliance with the NASD's "Interpretation Relating to Free-Riding and
Withholding."
(m) The Company will not sell or issue, contract to sell or issue,
or otherwise dispose of for any period of ninety (90) days after the
Closing Date, without Trident's prior written consent, any share of the
Company's capital stock other than the Common Stock.
(n) [Upon consummation of the Reorganization, the Company will list
the Common Stock over-the-counter through the OTC "Electronic Bulletin
Board."]
(o) The Company will maintain appropriate arrangements for
depositing all funds received from persons mailing subscriptions for or
orders to purchase Common Stock in the Offerings on an interest-bearing
basis at the rate described in the Plan until the Closing Date and
satisfaction of all conditions precedent to the release of the Company's
obligation to refund payments received from person subscribing for or
ordering Common Stock in the Offerings in accordance with the Plan or
until such funds have been made to the persons entitled thereto in
accordance with the Plan.
6. Payment of Expenses. Whether or not the Reorganization 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 765,000 Shares or such
lesser amount as the Division may permit or the Reorganization is otherwise
terminated, the Company and the Bank shall reimburse Trident for allowable
expenses incurred by Trident relating to the offering of the Shares as provided
in Section 3 hereof; provided, however, that neither the Company nor the Bank
shall pay or reimburse Trident for any of the foregoing expenses accrued after
Trident shall have notified the Company or the Bank of its election to terminate
this Agreement pursuant to Section 11 hereof or after such time as the Company
or the Bank shall have given notice in accordance with Section 12 hereof that
Trident is in breach of this Agreement.
7. Conditions of Trident's Obligations. Except as may be waived 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, the MHC, and the Bank of their obligations hereunder, and to the
following conditions:
(a) At the Closing Date, Trident shall receive the favorable opinion
of Luse, Lehman, Gorman, Pomerenk & Schick, special counsel for the
Company, the MHC, and the Bank, dated the Closing Date, addressed to
Trident, in form and substance satisfactory to counsel for Trident and
substantially as set forth in Exhibit B attached hereto.
Trident Securities, Inc.
Sales Agency Agreement
Page 18
In rendering such opinion, such counsel may rely as to matters of
fact on certificates of officers and directors of the Company, the MHC,
and the Bank and certificates of public officials delivered pursuant
hereto. Such counsel may assume that any agreement is the valid and
binding obligation of any parties to such agreement other than the
Company, the MHC, and the Bank. Such opinion may be governed by, and
interpreted in accordance with, the Legal Opinion Accord (the "Accord")
of the ABA Section of Business Law (1991) and, as a consequence,
references in such opinions to such counsel's "knowledge" may be limited
to "actual knowledge" as defined in the Accord (or knowledge based on
certificates). Such opinions may be limited to present statutes,
regulations and judicial interpretations, and to facts as they presently
exist; in rendering such opinion, 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, the
MHC, and the Bank of this Agreement or the issuance of the Shares.
(b) At the Closing Date, Trident shall receive the letter of Luse,
Lehman, Gorman, Pomerenk & Schick, dated the Closing Date, addressed to
Trident, in form and substance reasonably satisfactory to counsel for
Trident and substantially as set forth in Exhibit C attached hereto.
(c) Counsel for Trident shall have been furnished such documents as
it reasonably may require for the purpose of enabling it 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, the MHC, and the Bank regarding the authorization of this
Agreement and the transactions contemplated hereby.
(d) Prior to and at the Closing Date, in the reasonable opinion of
Trident, (i) there shall have been no material change in the financial
condition, business, or results of operations of the Company, the MHC,
and the Bank, taken as a whole, since the latest date as of which such
condition is set forth in the Prospectus, except as referred to therein;
(ii) there shall have been no transaction entered into by the Company,
the MHC, and the Bank after the latest date as of which the financial
condition of the Company, the MHC, or the Bank is set forth in the
Prospectus other than transactions referred to or contemplated therein,
transactions in the ordinary course of business, and transactions which
are not material to the Company, the MHC, and the Bank, taken as a
whole; (iii) none of the Company, the MHC, nor the Bank shall have
received from the Division, the Federal Reserve, 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, the MHC, and the
Trident Securities, Inc.
Sales Agency Agreement
Page 19
Bank, taken as a whole, with which they have not complied; (iv) no
action, suit, or proceeding, at law or in equity or before or by any
federal or state commission, board, or other administrative agency,
shall be pending or threatened against the Company, the MHC, or the Bank
or affecting any of their respective assets, wherein an unfavorable
decision, ruling, or finding would have a Material Adverse Effect on the
Company, the MHC, and the Bank, taken as a whole; and (v) the Shares
shall have been qualified or registered for offering and sale by the
Company under the securities or blue sky laws of such jurisdictions as
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, the MHC, and the Bank, dated the Closing Date, to the
effect that: (i) they have examined the Prospectus and the Notice and
Information Statement and, at the time the Prospectus and the Notice and
Information Statement became authorized for use, the Prospectus and the
Notice and Information Statement 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, the MHC, or
the Bank; (ii) since the date the Prospectus and the Notice and
Information Statement became authorized for use, no event has occurred
which should have been set forth in an amendment or supplement to the
Prospectus or the Notice and Information Statement which has not been so
set forth, including specifically, but without limitation, any material
change in the business, financial condition, or results of operations of
the Company, the MHC, or the Bank and, the conditions set forth in
clauses (ii) through (iv) inclusive of subsection (d) of this Section 7
have been satisfied; (iii) to the knowledge of such officers, no order
has been issued by the Commission, the Division, or the Federal Reserve,
to suspend the Subscription Offering or the Community Offering or the
effectiveness of the Prospectus, and no action for such purposes has
been instituted or threatened by the Commission, the Division, or the
Federal Reserve; (iv) to the knowledge of such officers, no person has
sought to obtain review of the final actions of the Division or the
Federal Reserve approving the Plan; and (v) all of the representations
and warranties contained in Section 2 of this Agreement are true and
correct, with the same force and effect as though expressly made on the
Closing Date.
(f) At the Closing Date, Trident shall receive, among other
documents, (i) a copy of the letter from the Division authorizing the
use of the Prospectus, the Notice and Information Statement, and related
materials; (ii) a copy of the order of the Commission declaring the
Registration Statement effective; (iii) copies of the letters from the
Division evidencing the corporate existence of the Bank and the MHC;
(iv) a copy of the letter from the appropriate Massachusetts 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 Massachusetts
governmental authority; and (vi) a copy of the order of the Federal
Reserve approving the Holding Company Application.
Trident Securities, Inc.
Sales Agency Agreement
Page 20
(g) Concurrently with the execution of this Agreement, Trident shall
receive a letter from Wolf & Company, P.C., dated as of the date hereof
and addressed to Trident: (i) such letter confirming that Wolf &
Company, P.C. is a firm of independent public accountants within the
meaning of the Act and the FDIC's securities disclosure regulations and
12 C.F.R. ss. 335.604(a) and no information concerning its relationship
with or interests in the Bank is required by the Division Application,
and stating in effect that, in Wolf & Company, P.C.'s opinion, the
financial statements of the Bank as are included in the Prospectus
comply as to form in all material respects with the applicable
accounting requirements of the Division Regulations, the Act, the SEC
Regulations, and generally accepted accounting principles; (ii) stating
in effect that, on the basis of certain agreed upon procedures (but not
an audit examination in accordance with generally accepted auditing
standards) consisting of a reading of the latest available unaudited
interim financial statements of the Bank, prepared by the Bank, a
reading of the minutes of the Board of Directors and shareholders of the
Bank and consultations with officers of the Bank responsible for
financial and accounting matters, nothing came to their attention which
caused them to believe that: (A) such unaudited financial statements,
including "Recent Developments," are not in conformity with generally
accepted accounting principles applied on a basis substantially
consistent with that of the audited financial statements included in the
Prospectus; (B) during the period from the date of the latest unaudited
financial statements included in the Prospectus to a specified date not
more than three business days prior to the date hereof, there was any
material increase in borrowings, and any other form of debt other than
deposits of the Bank (increases in borrowings will not be deemed to be
material if such increase in total borrowings does not exceed
$1,000,000); (C) there was any decrease in retained earnings of the Bank
at the date of such letter as compared with amounts shown in the latest
unaudited statement of condition included in the Prospectus, including
"Recent Developments;" or (D) there was any decrease in net income or
net interest income of the Bank for the number of full months commencing
immediately after the period covered by the latest unaudited income
statement included in the Prospectus, including "Recent Developments,"
and ended on the latest month end prior to the date of the Prospectus or
such letter as compared to the corresponding period in the preceding
year; and (iii) stating that, in addition to the audit examination
referred to in its opinion included in the Prospectus and the
performance of the procedures referred to in clause (ii) of this
subsection (g), they have compared with the general accounting records
of the Bank, which are subject to the internal controls of the Bank,
accounting system and other data prepared by the Bank, directly from
such accounting records, to the extent specified in such letter, such
amounts and/or percentages set forth in the Prospectus as Trident may
reasonably request; and they have found such amounts and percentages to
be in agreement therewith (subject to rounding).
(h) At the Closing Date, Trident shall receive a letter in form and
substance satisfactory to counsel for Trident from Wolf & Company, P.C.,
independent certified public accountants, dated the Closing Date and
addressed to Trident and the Company, confirming
Trident Securities, Inc.
Sales Agency Agreement
Page 21
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 satisfactory to Trident and its
counsel in their reasonable opinion. 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 its counsel shall be deemed a representation and
warranty by the Company, the MHC, and the Bank to Trident as to the statements
made therein. If any condition to Trident's obligations hereunder to be
fulfilled prior to or at the Closing Date is not so fulfilled, Trident may
terminate this Agreement or, if Trident so elects, may waive 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, the MHC, and the
Bank shall reimburse Trident for their expenses as provided in Section 3 hereof.
8. Indemnification.
(a) The Company and the Bank, jointly and severally, agree to
indemnify and hold harmless Trident, its officers, directors, and
employees and each person, if any, who controls Trident within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act,
against any and all loss, liability, claim, damage, and expense
whatsoever and shall further promptly reimburse such persons for any
legal or other expenses reasonably incurred by each or any of them in
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, the MHC,
or the Bank in this Agreement or any breach of warranty by the Company,
the MHC, or the Bank with respect to this Agreement or arising out of or
based upon any untrue or alleged untrue statement of a material fact or
the omission or alleged omission of a material fact required to be
stated or necessary to make not misleading any statements contained in
(i) the Registration Statement, the Prospectus, or the Notice and
Information Statement or (ii) any application (including the Division
Application, the Holding Company Application, or other document or
communication (in this Section 8 collectively called the "Applications")
prepared or executed by or on behalf of the Company, the MHC, or the
Bank or based upon written information furnished by or on behalf of the
Company, the MHC, or the Bank, whether or not filed in any jurisdiction,
to effect the Reorganization or qualify the Shares under the securities
laws thereof or filed with the Division, the Federal Reserve, or the
Commission, unless such statement or omission was made in reliance upon
and in conformity with written information furnished to the Company, the
MHC, 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 Reorganization. This indemnity shall be
in addition to any liability the Company, the MHC, and the Bank may have
to Trident otherwise.
Trident Securities, Inc.
Sales Agency Agreement
Page 22
(b) The Company and the Bank shall indemnify and hold Trident
harmless for any liability whatsoever arising out of (i) the Allocation
Instructions or (ii) any records of account holders and depositors of
the Bank delivered to Trident by the Bank or its agents for use during
the Reorganization.
(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 and the Bank within the meaning of Section
15 of the Act or Section 20(a) of the Exchange Act, to the same extent
as the foregoing indemnity from the Company 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 Trident, 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 (provided that it is agreed and
understood that the only information so furnished is set forth in the
Prospectus under the caption "The Offering and the Reorganization - Plan
of Distribution and Selling Commissions;" (B) any misrepresentation by
Trident in Section 2(b) of this Agreement; or (C) any liability of the
Company or the Bank which is found in a final judgment by a court of
competent jurisdiction (not subject to further appeal) to have
principally and directly resulted from gross negligence or willful
misconduct of Trident. It is expressly agreed, however, that Trident
shall not be liable for any loss, liability, claim, damage, or expense
which in the aggregate exceeds the amount paid (excluding reimbursable
expenses) to Trident under this Agreement.
(d) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party
of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which it may
have to any indemnified party otherwise than under this Section 8. In
case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the
extent that it may wish, jointly with the other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party will not be liable to
such indemnified party under this Section 8 for any legal or other
expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than the reasonable cost of investigation
except as otherwise provided herein. In the event the indemnifying party
elects to assume the defense of any such action and retain counsel
acceptable to the indemnified party, the indemnified party may retain
additional counsel, but shall bear the fees and expenses of such counsel
unless (i) the indemnifying party shall have specifically authorized the
indemnified party to retain such counsel or (ii) the parties to such
suit include such indemnifying party and the indemnified party, and such
indemnified party
Trident Securities, Inc.
Sales Agency Agreement
Page 23
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. In no event shall the Company and the Bank be
liable for the fees and expenses of more than one counsel, separate from
its own counsel, for Trident in connection with any one action or
separate but similar or related actions in the same jurisdiction arising
out of the same allegations or circumstances. An indemnifying party
against whom indemnity may be sought shall not be liable to indemnify an
indemnified party under this Section 8 if any settlement of any such
action is effected without such indemnifying party's consent.
[Notwithstanding the provisions of this Section 8, the Bank shall not
provide indemnification to the Company or Trident solely to the extent
that such indemnification would cause the Bank to violate Section 23A or
Section 23B.]
9. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 8 above is for any reason held to be unavailable to the Company, the
Bank, or Trident other than in accordance with its terms, the 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 hand, 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 and 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 hand, shall be deemed to be in
the same proportions as the total proceeds from the Reorganization (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 and
the Bank, on the one hand, and Trident, on the other hand, 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, 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
Trident Securities, Inc.
Sales Agency Agreement
Page 24
expenses reasonably incurred by such 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 exceed 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 for which Trident would be provided indemnification under
Section 8 hereof. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who is not guilty of such fraudulent misrepresentation.
10. Survival of Agreements, Representations, and Indemnities. The
respective indemnities of the Company and the Bank and Trident and the
representation and warranties of the Company, the MHC, and the Bank and of
Trident set forth in or made pursuant to this Agreement shall remain in full
force and effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of Trident or the Company or
the Bank or any controlling person or indemnified party referred to in Section 8
hereof, and shall survive any termination or consummation of this Agreement
and/or the issuance of the Shares, and any legal representative of Trident, the
Company, the Bank, and any such controlling persons shall be entitled to the
benefit of the respective agreements, indemnities, warranties, and
representations.
11. Termination. Trident may terminate this Agreement by giving the
notice indicated below in this Section at any time after this Agreement becomes
effective as follows:
(a) If any domestic or international event or act or occurrence has
materially disrupted the United States securities markets such as to
make it, in Trident's reasonable opinion, impracticable to proceed with
the offering of the Shares; or if trading on the New York Stock Exchange
shall have suspended; or if the United States shall have become involved
in a war or major hostilities; or if a general banking moratorium has
been declared by a state or federal authority which has material effect
on the Bank or the Reorganization; or if a moratorium in foreign
exchange trading by major international associations or persons has been
declared; or if there shall have been a material change in the
capitalization, condition, or business of the Company, the MHC, or the
Bank, 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, the MHC, or the Bank.
(b) If Trident elects to terminate this Agreement as provided in
this Section 11, the Company and the Bank shall be notified promptly by
Trident by telephone or telegram and confirmed by letter pursuant to
Section 12 hereof.
(c) If this Agreement is terminated for any of the reasons set forth
in subsection (a) above, and to fulfill their obligations, if any,
pursuant to Sections 3(b), 3(c), 3(d), 6, 8(a)
Trident Securities, Inc.
Sales Agency Agreement
Page 25
and 9 of this Agreement and upon demand, the Company and the Bank shall
pay to Trident the full amount so owing thereunder.
(d) The Bank may terminate the Reorganization in accordance with the
terms of the Plan. Such termination shall be without liability to any
party, except that the Company and the Bank shall be required to fulfill
their obligations, to the extent applicable, pursuant to Sections 3(b),
3(c), 3(d), 6, 8(a) and 9 of this Agreement.
12. Notices. All communications hereunder, except as herein otherwise
specifically provided, shall be in writing and, if sent to Trident, shall be
mailed, delivered, or telegraphed and confirmed to Trident Securities, Inc.,
4601 Six Forks Road, Suite 400, Raleigh, North Carolina 27609, Attention: Mr.
Timothy E. Lavelle (with a copy to Thacher Proffitt & Wood, 1700 Pennsylvania
Avenue, Suite 800, Washington, D.C. 20006, Attention: Richard A. Schaberg, Esq.)
and, if sent to the Company, the MHC, or the Bank, shall be mailed, delivered,
or telegraphed and confirmed to Service Bancorp, Inc., Service Bancorp, MHC, or
Summit Bank, as the case may be, 81 Main Street, Medway, Massachusetts 02053,
Attention: Mr. Eugene G. Stone (with a copy to Luse, Lehman, Gorman, Pomerenk &
Schick, 5335 Wisconsin Avenue, N.W., Suite 400, Washington, D.C. 20015,
Attention: Robert B. Pomerenk, Esq.).
13. Parties. This Agreement shall inure solely to the benefit of, and
shall be binding upon, Trident, the Company, the MHC, the Bank, and the
controlling and other persons referred to in Section 8 hereof, and their
respective successors, legal representatives and assigns, and no other person
shall have or be construed to have any legal or equitable right, remedy or claim
under or in respect of or by virtue of this Agreement or any provision herein
contained.
14. Construction. Unless governed by preemptive federal law, this
Agreement shall be governed by and construed in accordance with the substantive
laws of the State of North Carolina.
15. Counterparts. This Agreement may be executed in separate
counterparts, each of which when so executed and delivered shall be an original,
but all of which together shall constitute but one and the same instrument.
Please acknowledge your agreement to the foregoing by signing below and
returning to the Company one copy of this letter.
SERVICE BANCORP, INC. SUMMIT BANK
By:_____________________________ By:_____________________________
Eugene G. Stone Eugene G. Stone
President and Chief Executive President and Chief Executive
Officer Officer
Date:___________________________ Date:___________________________
SERVICE BANCORP, MHC
By:_____________________________
[Name]
[Title]
Date:___________________________
Agreed to and accepted:
TRIDENT SECURITIES, INC.
By:_____________________________
Timothy E. Lavelle
Managing Director
Date:___________________________
EXHIBIT A
Jurisdictions where Trident is a Registered Selling Agent
Trident 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 is not a registered selling agent in the jurisdictions listed below:
Alaska
Hawaii
Montana
South Dakota
Utah
EXHIBIT B
Opinion of Luse, Lehman, Gorman, Pomerenk & Schick
Required under Section 7(a) of the Sales Agency Agreement
---------------------------------------------------------
[Luse, Lehman to insert introduction]
(i) the Company is duly incorporated and validly existing as a
corporation in good standing under the laws of the Commonwealth of
Massachusetts, the MHC is duly organized and validly existing as a
mutual holding company in good standing under the laws of the
Commonwealth of Massachusetts, and the Bank is duly incorporated and
validly existing as a stock savings bank in good standing under the laws
of the Commonwealth of Massachusetts; each with full power and authority
to own its properties and conduct its business as described in the
Prospectus;
(ii) the Company, the MHC, and the Bank are each duly qualified to
do business and each are in good standing as a foreign corporation in
each jurisdiction where the ownership or leasing of its properties or
the conduct of its business requires such qualification unless the
failure to be so qualified would not have a Material Adverse Effect on
the Company, the MHC, and the Bank, taken as a whole;
(iii) the Bank is a member of the Federal Home Loan Bank of Boston,
and the deposit accounts of the Bank are insured by the Bank Insurance
Fund of the FDIC, up to the maximum amount permitted by law, and by the
Depositors Insurance Fund in excess of such amount;
(iv) to our knowledge, (a) the Bank has obtained all licenses,
permits, and other governmental authorizations currently required for
the conduct of its business, except where the failure to obtain such
licenses, permits, and other governmental authorizations would not have
a Material Adverse Effect on the Company, the MHC, and the Bank, taken
as a whole; (b) all such licenses, permits, and other governmental
authorizations are in full force and effect; and (c) the Bank is in all
material respects complying therewith;
(v) The Plan complies with and the formation of the Company as the
holding company for the Bank has been effected in all material respects
in accordance with all applicable laws, rules, regulations, decisions,
and orders; all of the terms, conditions, requirements, and provisions
with respect to the Plan and the Reorganization imposed by the Division
and the Federal Reserve, except with respect to the filing or submission
of certain required post-Reorganization reports or other materials by
the Company, the MHC, or the Bank, have been complied with by the
Company, the MHC, and the Bank; and, to our knowledge, no person has
sought to obtain regulatory or judicial review of the final action of
the Division in approving the Plan;
(vi) As of the Closing Date, the Company has authorized Common Stock
as set forth in the Registration Statement and the Prospectus; the Bank
has authorized the capital stock as set forth in the Division
Application and the Prospectus; and the description of the Common Stock
and the capital stock of the Bank provided in the Registration
Statement, the Prospectus, and the Division Application, as applicable,
is accurate 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
and have received all requisite regulatory approvals; the Shares, upon
receipt of payment and issuance in accordance with the terms of the Plan
and this Agreement, will be validly issued, fully paid, nonassessable,
and, except as disclosed in the Prospectus, free of preemptive rights,
and good title thereto shall be transferred by the Company to the
purchasers free and clear of all claims, encumbrances, security
interests and liens created by the Company;
(viii) the certificates for the Common Stock are in due and proper
form and comply with applicable requirements of Massachusetts law and
the rules and regulations of the Division;
(ix) the issuance and sale of the capital stock of the Bank to the
Company have been duly authorized by all necessary corporate action of
the Bank and the Company and have received the approval of the Division;
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 beneficially by the
Company;
(x) subject to the satisfaction of the conditions imposed in the
approvals of the Division Application and the Holding Company
Application, no further approval, authorization, consent, or other order
of any public board or body is required in connection with the execution
and delivery of this Agreement, and the consummation of the
Reorganization, except as may be required under the "blue sky" laws of
various jurisdictions;
(xi) the execution and delivery of this Agreement and the
consummation of the of the transactions contemplated hereby have been
duly and validly authorized by all necessary action, corporate or
otherwise, on the part of each of the Company, the MHC, and the Bank;
and this Agreement is a legal, valid, and binding obligation of each of
the Company, the MHC, and the Bank, enforceable in accordance with its
terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium, receivership, conservatorship, or other laws
affecting creditors' rights generally and as my be limited by the
exercise of judicial discretion in applying principles of equity and
except to the extent that the provisions of Sections 8 and 9 hereof may
be unenforceable as against public policy or Section 23A;
(xii) to our knowledge, except as set forth in the Prospectus, there
are no legal or governmental proceedings pending or threatened against
or involving the assets of the Company, the MHC, or the Bank required to
be disclosed in the Prospectus, nor are there any statutes or
regulations, and to our knowledge, any contract or other documents
required
to be described or disclosed in the Prospectus that are not so described
or disclosed; and the description in the Prospectus of such statutes,
regulations, contracts, and other documents therein described are in all
material respects accurate summaries and in all material respects fairly
present the information required to be shown;
(xiii) the statements in the Prospectus and incorporated by
reference in the Notice and Information Statement under the captions
"Regulation," "Dividend Policy," "Restrictions on Acquisition of the
Stock Company and the Bank," "Description of Capital Stock of the Stock
Company," and "Federal and State Taxation" insofar as they are, or refer
to, statements of law or legal conclusions (excluding financial data
included therein, as to which no opinion is expressed), have been
prepared or reviewed by us and are correct in all material respects;
(xiv) the Division Application has been approved by the Division,
and the Prospectus and the Notice and Information Statement have been
authorized for use by the Division; the Registration Statement and any
post-effective amendment thereto have been declared effective by the
Commission; except as to any necessary qualifications or registration
under the securities laws of the jurisdictions in which the Shares were
offered, no further approval of any governmental authority is required
for the issuance and sale of the Shares (subject to the satisfaction of
various conditions subsequent imposed by the Division in connection with
their approval of the Reorganization); the Division and the Federal
Reserve have issued their orders of approval for the Company to acquire
the Bank; and, to our knowledge, no proceedings are pending by or before
the Commission or the Division seeking to revoke or rescind the orders
declaring the Registration Statement effective or authorizing the
Prospectus or the Notice and Information Statement for use or, to our
knowledge, are contemplated or threatened (provided that for this
purpose we do not regard any litigation or governmental procedure to be
"threatened" unless the potential litigant or government authority has
manifested to the management of the Company or the Bank, or to us, a
present intention to initiate such litigation or proceeding);
(xv) the execution and delivery of this Agreement, the incurring of
the obligations set forth herein, and the consummation of the of the
transactions contemplated hereby shall not conflict with or result in a
breach of the articles of incorporation, charter or bylaws of the
Company, the MHC, or the Bank; nor to our knowledge, constitute a
material breach of or default (or an event which, with notice or lapse
of time or both, would constitute a default) under, or 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, the
MHC, or the Bank pursuant to any of the terms, provisions, or conditions
of any material agreement, contract, indenture, bond, debenture, note,
instrument, or obligation to which the Company, the MHC, or the Bank is
a party or by which it or its assets or properties may be bound or is
subject, or any governmental license or permit (subject to the
satisfaction of any post-Reorganization conditions imposed by the
Division and/or the Federal Reserve), which in any such event would have
a Material Adverse Effect on the Company, the MHC, and the Bank, taken
as a whole; nor will any such actions violate any material law,
administrative regulation or order, court order, writ,
injunction, or decree which breach, default, encumbrance, or violation
would have a Material Adverse Effect on the Company, the MHC, and the
Bank, taken as a whole;
(xvi) to our knowledge, there has been no material breach of the
Company's, the MHC's, or the Bank's articles of incorporation, charter,
or bylaws or a breach or default (or the occurrence of any event which,
with the lapse of time or action, or both, by a third party, would
result in a breach or default) under any agreement, contract, indenture,
bond, debenture, note, instrument, or obligation to which the Company,
the MHC, or the Bank is party or by which any of them or their
respective assets or properties may be bound, or any governmental
license or permit, or a violation of any law, administrative regulation,
or order, court order, writ, injunction, or decree which breach or
default would have a Material Adverse Effect on the Company, the MHC,
and the Bank, taken as a whole;
(xvii) the Division Application, the Holding Company Application,
the Registration Statement, the Prospectus, and the Notice and
Information Statement (in each case as amended or supplemented, if so
amended or supplemented) comply as to form in all material respects with
the requirements of all applicable laws and the rules, regulations, and
all written and published decisions and orders of the Division, the
Federal Reserve, and the Commission, 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, as to which no opinion is expressed); all documents
and exhibits required to be filed with the Division Application and the
Registration Statement have been so filed and the descriptions in the
Division Application and the Registration Statement (in each case, as
amended or supplemented, of so amended or supplemented); the description
in the Division Application, the Holding Company Application, and the
Registration Statement of such documents and exhibits is in all material
respects accurate and complete and presents fairly the information
required to be shown; to our actual knowledge, there are no contracts or
other documents of a character required to be described that 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, the MHC, or the Bank of a character required to be
disclosed in the Division Application, the Holding Company Application,
the Registration Statement, or the Prospectus that have not been so
disclosed and properly described therein;
(xviii) to our knowledge, none of the Company, the MHC, nor the Bank
is in violation of any directive from the Division, the FDIC, or the
Federal Reserve to make any change in the method of conducting their
respective businesses; and
(xix) the Company is not required to be registered as an investment
company under the Investment Company Act of 1940 and will not be
required to be so registered as a result of the consummation of the
Reorganization and the receipt and use of the proceeds from the sale of
the Shares, as such use of proceeds is described in the Prospectus under
the caption "Use of Proceeds."
(xx) None of the Company, the MHC, nor the Bank is required to
obtain the approval or non-objection of the FDIC with respect to the
Plan and the transactions contemplated therein.
[Luse, Lehman to insert conclusion]
EXHIBIT C
Letter of Luse, Lehman, Gorman, Pomerenk & Schick
Required under Section 7(b) of the Sales Agency Agreement
---------------------------------------------------------
[Luse, Lehman to insert introduction]
Based on such counsel's participation in conferences with
representatives of the Company, the Bank, its counsel, the independent
appraiser, the independent certified public accountants, Trident and its
counsel, review of documents and understanding of applicable law (including the
requirements of Form SB-2 and the character of the Registration Statement
contemplated thereby) and the experience such counsel has gained in its practice
under the Act, nothing has come to such counsel's attention that would lead it
to believe that the Registration Statement, as amended (except as to information
in respect of Trident contained therein and except as to the financial
statements, notes to financial statements, financial tables and other financial
and statistical data contained therein, as to which such counsel expresses no
opinion), at the time it became effective contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements made therein, in light of the circumstances
under which they were made, not misleading, or that the Prospectus, as amended
(except as to information in respect of Trident contained therein and except as
to financial statements, notes to financial statements, financial tables and
other financial and statistical data contained therein as to which such counsel
expresses no opinion), as of the date of the Prospectus and at the Closing Date,
contained any untrue statement of a material fact or omitted to state a material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading (in making this statement such
counsel may state that it has not undertaken to verify independently the
information in the Registration Statement or Prospectus and, therefore, does not
assume any responsibility for the accuracy or completeness thereof).
[Luse, Lehman to insert conclusion]