SUBSCRIPTION AGENT AGREEMENT September __, 2008
September
__, 2008
American
Stock Transfer & Trust Company
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Ladies
and Gentlemen:
In
connection with your appointment as Subscription Agent in the transaction
described herein, T Bancshares, Inc. (the “Company”), hereby confirms its
arrangements with you as follows:
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1.
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Rights
Offering
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The Company is offering (the ”Rights Offering”) to the holders (“Record
Holders”) of shares of its Common Stock, par value $0.01 per share
(”Common Stock”), as of 5:00 p.m., New York City time, on July 31, 2008
(the ”Record Date”), the right (”Rights”) to subscribe for one share of
common stock for every 1.7 shares of Common Stock held by Record
Holders
as of the close of business on the Record Date. Except as set forth
under
Paragraphs 8 and 9 below, Rights shall cease to be exercisable at
5:00
p.m., New York City time, on _______________, 2008 or such later
date of
which the Company notifies you orally and confirms in writing (the
”Expiration Date”). A total of 1,002,235 Rights are being issued for
1,703,801 shares of Common Stock outstanding on the Record Date.
Payment
in full of the subscription price of $8.00 (the ”Subscription Price”) is
required to subscribe for one Right. Rights are evidenced by transferable
subscription certificates in registered form (”Subscription
Certificates”). Each Record Holder who fully exercises and subscribes, for
all Rights evidenced by such Subscription Certificate(s) (the ”Basic
Subscription Right”) will have the right to subscribe for additional
shares of Common Stock, available as a result of any unexercised
Rights
(such additional subscription right being referred to hereafter as
the
”Over Subscription Privilege”). The Rights Offering will be conducted in
the manner and upon the terms set forth in the Company’s Prospectus dated
September __, 2008 (the ”Prospectus”), which is incorporated herein by
reference and made a part hereof as if set forth in full herein.
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2.
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Appointment
of Subscription Agent
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You are hereby appointed as Subscription Agent to effect the Rights
offering in accordance with the Prospectus. Each reference to you
in this
letter is to you in your capacity as Subscription Agent unless the
context
indicates otherwise.
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3.
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Delivery
of Documents
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Enclosed herewith are the following, the receipt of which you acknowledge
by your execution hereof:
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(a)
a copy of the
Prospectus;
(b)
the form of Subscription
Certificate (with instructions);
(c)
resolutions adopted by the Board of Directors of the Company in connection
with
the Rights Offering, certified by the secretary of the Company;
(d)
Instructions as to the use of
Subscription Certificates
(e)
Letter to Record
Shareholders;
(f)
Letter to Beneficial Holders;
(g)
Letter to Clients;
(h)
Nominee Holder Certification;
(i)
Beneficial Holder Election Form; and
(j)
Notice of Guaranteed Delivery.
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As
soon as is reasonably practicable after your execution of this
Subscription Agent Agreement, you shall mail or cause to be mailed
to each
holder of Common Shares at the close of business on the Record Date
a
Subscription Certificate evidencing the Rights to which such holder
is
entitled, a Notice of Guaranteed Delivery, a Prospectus and an envelope
addressed to you. Prior to mailing, the Company will provide you
with
blank Subscription Certificates which you will prepare and issue
in the
names of holders of Common Stock of record at the close of business
on the
Record Date and for the number of Rights to which they are entitled.
The
Company will also provide you with a sufficient number of copies
of each
of the documents to be mailed with the Subscription
Certificates.
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Subscription
Procedure
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(a)
Upon your receipt prior to 5:00 p.m., New York City time, on the
Expiration Date (by mail or delivery), as Subscription Agent, of
(i) any
Subscription Certificate completed and endorsed for exercise, as
provided
on the reverse side of the Subscription Certificate (except as provided
in
paragraph 8 hereof), and (ii) payment in full of the Subscription
Price in
U.S. funds by check, bank draft, postal or express money order
or wire transfer payable at par (without deduction for bank service
charges or otherwise) to the order of American Stock Transfer &
Trust Company, you shall as soon as practicable after the Expiration
Date,
but after performing the procedures described in subparagraphs (b)
and (c)
below, mail to the subscriber’s registered address on the books of the
Company certificates representing the securities underlying each
Right
duly subscribed for (pursuant to the Basic Subscription Right and
the Over
Subscription Privilege) and furnish a list of all such information
to the
Company.
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(b)
As soon as practicable after the Expiration Date, you shall calculate
the
number of shares of Common Stock to which each subscriber is entitled
pursuant to the Over Subscription Privilege. The Over Subscription
Privilege may only be exercised by Record Holders who fully exercise
to
purchase all the Rights that can be exercised for under the Basic
Subscription Right. The shares of Common Stock available for additional
subscriptions will be those that have not been subscribed and paid
for
pursuant to the Basic Subscription Right (the ”Remaining Shares”). Where
there are sufficient Remaining Shares to satisfy all additional
subscriptions by holders exercising their rights under the Over
Subscription Privilege, each Record Holder shall be allotted the
number of
Remaining Shares subscribed for. If the aggregate number of Remaining
Shares subscribed for under the Over Subscription Privilege exceeds
the
number of Remaining Shares, the number of Remaining Shares allotted
to
each participant in the Over Subscription Privilege shall be the
product
(disregarding fractions) obtained by multiplying the number of Remaining
Shares by a fraction of which the numerator is the number of Rights
subscribed for by that participant under the Over Subscription Privilege
and the denominator is the aggregate number of Remaining Shares subscribed
for by all participants under the Over Subscription Privilege. Any
fractional Right to which persons exercising their Over Subscription
Privilege would otherwise be entitled pursuant to such allocation
shall be
rounded down to the next whole
Right.
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(c)
Upon calculating the number of Remaining Shares to which each subscriber
is entitled pursuant to the Over Subscription Privilege and the amount
overpaid, if any, by each subscriber, you shall, as soon as practicable,
furnish a list of all such information to the Company.
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(d)
Upon calculating the number of Remaining Shares to which each subscriber
is entitled pursuant to the Over Subscription Privilege and assuming
payment for the additional Common Stock subscribed for has been delivered,
you shall mail, as contemplated in subparagraph (a) above, the
certificates representing the additional securities which the subscriber
has been allotted. If a lesser number of Remaining Shares is allotted
to a
subscriber under the Over Subscription Privilege than the subscriber
has
tendered payment for, you shall remit the difference to the subscriber
without interest or deduction at the same time as certificates
representing the securities allotted pursuant to the Over Subscription
Privilege are mailed.
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(e)
Funds received by you pursuant to the Basic Subscription Right and
the
Additional Subscription Privilege shall be held by you in a segregated
account. Upon mailing certificates representing the securities and
refunding subscribers for additional Rights subscribed for but not
allocated, if any, you shall promptly remit to the Company all funds
received in payment of the Subscription Price for Rights sold in
the
Rights Offering, together with any interest earned thereon.
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5.
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Subdivision.
Sale or Transfer of Rights
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Until 5:00 p.m., New York City time, on the third business day prior
to
the Expiration Date, you shall facilitate subdivision or transfers
of
Subscription Certificates by issuing new Subscription Certificates
in
accordance with the instructions set forth on the reverse side of
the
Subscription Certificates.
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6.
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Defective
Exercise of Rights; Lost Subscription
Certificates
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The Company shall have the absolute right to reject any defective
exercise
of Rights or to waive any defect in exercise. Unless requested to
do so by
the Company, you shall not be under any duty to give notification
to
holders of Subscription Certificates of any defects or irregularities
in
subscriptions. Subscriptions will not be deemed to have been made
until
any such defects or irregularities have been cured or waived within
such
time as the Company shall determine. You shall as soon as practicable
return Subscription Certificates with the defects or irregularities
which
have not been cured or waived to the holder of the Rights. If any
Subscription Certificate is alleged to have been lost, stolen or
destroyed, you should follow the same procedures followed for lost
stock
certificates representing Common Shares you use in your capacity
as
transfer agent for the Company’s Common Shares.
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7.
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Late
Delivery -
If prior to 5:00 p.m., New York City time, on the Expiration Date
you
receive (i) payment in full of the Subscription Price for the Rights
being
subscribed for and (ii) a guarantee notice substantially in the form
of
the Notice of Guaranteed Delivery delivered with the Subscription
Certificate, from a financial institution having an office or
correspondent in the United States, or a member firm of any registered
United States national securities exchange or of the National Association
of Securities Dealers, Inc. stating the certificate number of the
Subscription Certificate relating to the Rights, the name and address
of
the exercising subscriber, the number of Rights represented by the
Subscription Certificate held by such exercising subscriber, the
number of
Rights being subscribed for pursuant to the Rights and guaranteeing
the
delivery to you of the Subscription Certificate evidencing such Rights
within three (3) NASDAQ National Market (”NNM”) trading days following the
date of the Notice of Guaranteed Delivery, then the Rights may be
exercised even though the Subscription Certificate was not delivered
to
you prior to 5:00 p.m., New York City time, on the Expiration Date,
provided that within three (3) NNM trading days following the date
of the
Notice of Guaranteed Delivery you receive the properly completed
Subscription Certificate evidencing the Rights being exercised, with
signatures guaranteed if required.
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8.
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Delivery
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You shall deliver to the Company the exercised Subscription Certificates
in accordance with written directions received from the Company and
shall
deliver to the subscribers who have duly exercised Rights at their
registered addresses certificates representing the securities subscribed
for as instructed on the reverse side of the Subscription Certificates.
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9.
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Reports
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You shall notify the Company by telephone before the close of business
on
each business day during the period commencing five (5) business
days
after the mailing of the Rights and ending at the Expiration Date
(and in
the case of guaranteed deliveries ending three (3) NNM trading days
after
the Expiration Date) (a ”daily notice”), which notice shall thereafter be
confirmed in writing, of (i) the number of Rights exercised on the
day
covered by such daily notice, (ii) the number of Rights subject to
guaranteed exercises on the day covered by such daily notice, (iii)
the
number of Rights for which defective exercises have been received
on the
day covered by such daily notice, and (iv) the cumulative total of
the
information set forth in clauses (i) through (iii) above. At or before
5:00 p.m., New York City time, on the first NNM trading day following
the
Expiration Date you shall certify in writing to the Company the cumulative
total through the Expiration Date of all the information set forth
in
clauses (i) through (iii) above. At or before 10:00 a.m., New York
City
time, on the fifth (5th)
NNM trading day following the Expiration Date, you will execute and
deliver to the Company a certificate setting forth the number of
Rights
exercised pursuant to a Notice of Guaranteed Delivery and as to which
Subscription Certificates have been timely received. You shall also
maintain and update a listing of holders who have fully or partially
exercised their Rights, holders who have transferred their Rights
and
their transferees, and holders who have not exercised their Rights.
You
shall provide the Company or its designees with such information
compiled
by you pursuant to this paragraph 9 as any of them shall
request.
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10.
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Future
Instructions –
With respect to notices or instructions to be provided
by the Company hereunder, you may rely and act on any written instruction
signed by any one or more of the following authorized officers or
employees of the Company:
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▇. ▇▇▇▇▇, CEO
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▇▇▇▇▇▇, COO of T Bank, N.A.
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11.
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Payment
of Expenses
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The Company will pay you compensation for acting in your capacity
as
Subscription Agent hereunder in the amount of $___________ plus your
reasonable out-of-pocket expenses. The Company will pay an additional
fee
equal to one-third of the Subscription Agent fee for each extension
of the
Offering, plus any out-of-pocket expenses associated with such
extension.
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12.
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Counsel
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You may consult with counsel satisfactory to you, which may be counsel
to
the Company, and the advice or opinion of such counsel shall be full
and
complete authorization and protection in respect of any action taken,
suffered
or
omitted by you hereunder in good faith and in accordance with such
advice
an opinion of such counsel.
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13.
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Indemnification
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The Company covenants and agrees to indemnify and hold you harmless
against any costs, expenses (including reasonable fees of legal counsel),
losses or damages, which may be paid, incurred or suffered by or
to which
you may become subject arising from or out of, directly or indirectly,
any
claim or liability resulting from your actions as Subscription Agent
pursuant hereto; provided that such covenant and agreement does not
extend
to such costs, expenses, losses and damages incurred or suffered
by you as
a result of, or arising out of, your own gross negligence, misconduct
or
bad faith or that of any employees, agents or independent contractors
used
by you in connection with performance of your duties as Subscription
Agent
hereunder.
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14.
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Notices -
Unless otherwise provided herein, all reports, notices and other
communications required or permitted to be given hereunder shall
be in
writing and delivered by hand or confirmed telecopy or by first class
U.S.
mail, postage prepaid, shall be deemed given if by hand or telecopy,
upon
receipt or if by U.S. mail, three business days after deposit in
the U.S.
mail and shall be addressed as follows
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15.
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Prior
Agreements.
Nothing herein contained shall amend, replace or supersede any agreement
between Target and you to act as Target’s transfer agent which agreement
shall remain of full force and effect.
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(a)
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If
to the Company, to:
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Attention:
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Telephone:
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Telecopy:
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(b)
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If
to you, to:
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American
Stock Transfer &
Trust Company
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Attention:
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Telephone:
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Telecopy:
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Yours
truly,
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By:
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Name:
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Title:
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5
Agreed
& Accepted:
AMERICAN
STOCK TRANSFER & TRUST COMPANY
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Name:
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Title:
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6
Fee
Schedule
Flat
fee
of $___________
Plus
reasonable out-of-pocket expenses.
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