Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions: (a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, threatened by the FRB, and no order suspending the sale of the Securities in any jurisdiction shall have been issued. (b) At the Closing Time, the Agent shall have received: (1) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇ Lovells US LLP, counsel for the Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on Exhibit A hereto. (2) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇ Procter LLP, counsel for the Agent, with respect to such matters as the Agent may reasonably require. (3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter LLP 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, and ▇▇▇▇▇▇▇ Procter LLP may also rely on the opinion of ▇▇▇▇▇ Lovells US LLP. (c) At the Closing Time referred to in Section 2, the Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company or the Bank by the FRB, or any other regulatory authority other than those which the FRB or the Division permits to be completed after the Conversion. (d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC and the Bank, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC, and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the MHC or the Bank, as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither the Company nor the Bank shall have received from the FRB any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC or the Bank, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC and the Bank has complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission, and (vii) no order suspending the Subscription and Community Offering or the Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or, to their knowledge, threatened by the FRB and no person has sought to obtain regulatory or judicial review of the action of the Division in approving the Plan nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Holding Company Application. (e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, fairly present the financial condition and results of operations of the MHC and the subsidiaries as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus. (f) At the time of the execution of this Agreement, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C., a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHC, the Company and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public Accountants, the Securities Act and the Securities Act Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC and the Bank or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings of the MHC and the Bank, in each case as compared with the amounts shown in the consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from [ ], 2014 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHC, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the MHC and the Bank identified in such letter. (g) At the Closing Time, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five days prior to the Closing Time. (h) At the Closing Time, the Securities shall have been approved for trading on the Nasdaq Capital Market upon notice of issuance. (i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal. (j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent. (k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by Federal, Massachusetts or New York authorities.
Appears in 2 contracts
Sources: Agency Agreement (Beverly Financial, Inc.), Agency Agreement (Beverly Financial, Inc.)
Conditions of Agent’s Obligations. The CompanyMHC, the MHCCompany, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the CompanyMHC, the MHC Company and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the CompanyBank, the MHC and the Bank Company made pursuant to the provisions hereof, to the performance by the CompanyMHC, the MHC Company and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, threatened by the FRB, Commission and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇ ▇▇ Lovells US LLP▇▇▇▇▇, PC, counsel for the CompanyMHC, the MHC Company and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on as attached hereto as Exhibit A hereto.A.
(2) The favorable opinion, dated as of the Closing Time, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ Procter LLP, counsel for the Agent, with respect as to such matters as the Agent may reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l5(b)(1) and (b)(25(b)(2), respectively, of this Section, ▇▇▇▇ ▇▇▇▇▇▇, PC and Silver, ▇▇▇▇▇▇▇▇, ▇▇▇▇ Lovells US LLP and & ▇▇▇▇▇▇▇ Procter LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information and schedules financial tables and other financial tabular, financial, pro forma, appraisal, accounting or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information and schedules financial tables and other financial tabular, financial, pro forma, appraisal, accounting or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective effective, as of the date of the Prospectus or at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇ ▇▇▇▇▇▇, PC and Silver, ▇▇▇▇▇▇▇▇, ▇▇▇▇ Lovells US LLP and & ▇▇▇▇▇▇▇ Procter LLP may rely as to matters of fact on certificates of officers and directors of the CompanyMHC, the MHC Company and the Bank and certificates of public officials. Silver, and ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ Procter LLP may also rely on the opinion of ▇▇▇▇ ▇▇ Lovells US LLP▇▇▇▇▇, PC.
(c) At the Closing Time referred to in Section 22 hereof, the Company, the MHC Bank and the Bank MHC shall have completed in all material respects the conditions precedent to the Conversion Reorganization in accordance with the Plan, the applicable Conversion provisions of the MHC Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Reorganization imposed upon the Company Company, the MHC or the Bank by the FRB, the OCC, the FDIC or any other regulatory authority other than those which the FRB FRB, the OCC, the FDIC or the Division permits any such other regulatory authority permit to be completed after the ConversionReorganization is consummated.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC and the Bank, considered as one enterpriseMaterial Adverse Effect, whether or not arising in the ordinary course of business consistent with past practicebusiness, and the Agent shall have received a certificate of the President and Chief Executive Officer of the CompanyMHC, of the MHC Company and of the Bank and the Chief Financial Officer of the Company, of the MHC, the Company and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse changeMaterial Adverse Effect, (ii) there shall have been no material transaction entered into by the CompanyMHC, the MHC Company or the Bank from the latest date as of which the financial condition of the Company, the MHC Company or the Bank, as set forth in the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither none of the Company nor Company, the MHC or the Bank shall have received from the FRB FRB, the OCC or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its respective business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which would materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC or and the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC and the Bank has have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company, the MHC or the Bank, threatened by the Commission, and (vii) no order suspending the Subscription FRB’s approval of the MHC Notice, the OCC’s approval of the OCC Applications and Community Offering the FDIC approval of the FDIC Application or the Syndicated Community Offering or the authorization for final use of the Prospectus transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to their knowledgethe knowledge of the Company, the MHC or the Bank, threatened by the FRB FRB, the OCC or the FDIC and no person has sought to obtain regulatory or judicial review of the action of the Division FRB in approving the Plan in accordance with the MHC Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Holding Company ApplicationMHC Notice, and (viii) no order suspending the Subscription and Community Offering or the Syndicated Offering, if any, or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the FRB.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of the CompanyMHC, of the MHC Company and of the Bank and the Chief Financial Officer of the CompanyMHC, of the MHC Company and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package fairly present the financial condition and results of operations of the MHC and the subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the General Disclosure PackageProspectus; (iv) they are responsible for establishing and maintaining disclosure controls and procedures; (v) they have designed such disclosure controls and procedures to ensure that material information relating to the Bank is, including and with respect to the ProspectusCompany, will be, made known to them; (vi) they have evaluated the effectiveness of their disclosure controls and procedures; and (vii) they have disclosed to Wolf & Company, P.C. and the audit committee (A) all significant deficiencies in the design or operation of disclosure controls and procedures which are reasonably likely to adversely affect the Bank’s ability to record, process, summarize, and report financial data, and have identified for the Company’s and the Bank’s independent registered public accounting firm any material weaknesses in disclosure controls and procedures and (B) any fraud, whether or not material, that involves management or other employees who have, or with respect to the Company, will have, a significant role in the Company’s and the Bank’s disclosure controls and procedures.
(f) At the time As of the execution of this Agreementdate hereof, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Wolf & Company, P.C., P.C. a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHC, the Company and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the MHC Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions opinion therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Wolf & Company, P.C. set forth in detail in such letterletters, nothing has come to their attention which causes them to believe that that, except as set forth in such letters, (A) the unaudited consolidated financial statements and supporting schedules of the MHC included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” or under “Recent Developments” in the Registration Statement Prospectus and Prospectus the General Disclosure Package do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited consolidated financial statements included in the Registration Statement, the Prospectus and the General Disclosure Package, (CB) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC and the Bank or any decrease in consolidated total assets, investment securities, total loans, the allowance for loan losses, total deposits or total retained earnings of the MHC and the Bank, in each case as compared with the amounts shown in the September 30, 2021 unaudited consolidated statements of financial conditions included condition presented under the “Recent Developments” caption in the Registration Statement or, (DC) during the period from [ ]September 30, 2014 2021 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCBank, or increases in interest expense or the provision for loan losses, except in all instances for increases or decreases which the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement Statement, Prospectus and the General Disclosure Package, including the Prospectus Package and which that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the MHC and the Bank identified in such letter.
(g) At the Closing Time, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Wolf & Company, P.C. a letter, letter dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter letters furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five three (3) business days prior to the Closing Time.
(h) At the Closing Time, the Securities and the Foundation Shares shall have been approved for trading listing on the Nasdaq Capital Market upon notice of issuanceStock Market.
(i) At the Closing Time, the Agent Bank shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they it may require for the purpose of enabling them it to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the issuance and contribution of the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis crisis, including any natural disasters or other force majeure events or any epidemic, pandemic or disease outbreak or escalation (including the COVID-19 pandemic to the extent there is any material escalation or material worsening of such pandemic or the effects thereof subsequent to the date hereof), the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either any of the NYSE MKT, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either any of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, Massachusetts or New York or Massachusetts authorities.
Appears in 2 contracts
Sources: Agency Agreement (CFSB Bancorp, Inc. /MA/), Agency Agreement (CFSB Bancorp, Inc. /MA/)
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, Statement shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the Commission, no order suspending the Offerings or the authorization for final use effectiveness of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, Prospectus shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the Commission or the FRB, and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1i) The favorable opinionwritten opinion contained in Exhibit 1 hereof, dated as of the Closing Time, of L▇▇▇ ▇▇▇▇▇ Lovells US LLP▇▇, PC, special counsel for the Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on Exhibit A hereto.
(2ii) The favorable opinionopinion contained in Exhibit 2 hereof, dated as of the Closing Time, of N▇▇▇▇▇, M▇▇▇▇▇▇▇▇ Procter & Fish LLP, counsel for the Agent, with respect in form and substance satisfactory to such matters as the Agent may reasonably requireAgent.
(3iii) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, L▇▇▇ ▇▇▇▇▇ Lovells US LLP ▇▇, PC and N▇▇▇▇▇, M▇▇▇▇▇▇▇▇ Procter & Fish, LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at the Closing Time, or that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, L▇▇▇ ▇▇▇▇▇ Lovells US LLP ▇▇, PC, and N▇▇▇▇▇, M▇▇▇▇▇▇▇▇ Procter & Fish, LLP may rely as to matters of fact on certificates of officers and directors of the Company, the MHC MHC, the Bank and the Bank Subsidiaries, as applicable, and certificates of public officials, and N▇▇▇▇▇, M▇▇▇▇▇▇▇▇ Procter & Fish, LLP may also rely on the opinion of L▇▇▇ ▇▇▇▇▇ Lovells US LLP▇▇, PC with respect to matters set forth in paragraphs [___________] therein.
(c) At the Closing Time referred to in Section 2, the Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion Offerings in accordance with the Plan, the applicable Conversion Massachusetts Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Offerings imposed upon the Company Company, the MHC or the Bank by the FRBDivision, the FRB or any other regulatory authority authority, other than those which the Division, the FRB or the Division such other regulatory authority permits to be completed after the ConversionOfferings.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC MHC, the Bank and the BankSubsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC and of the Bank and the Chief Financial or Chief Accounting Officer of the Company, of the MHC, MHC and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the MHC MHC, or the Bank from the latest date as of which the financial condition of the Company, the MHC or the Bank, as Bank is set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, other than transactions referred to or contemplated specifically disclosed therein and transactions in the ordinary course of business consistent with past practice, practice (iii) neither the Company Company, the MHC, nor the Bank shall have received from the Division, the FRB or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC or the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC and the Bank has complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or or, to the best of their knowledge after inquiry, threatened by the Commission, and (vii) no order suspending the Subscription and Community Offering or the Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or, to the best of their knowledge, threatened by the FRB Division and no person has sought to obtain regulatory or judicial review of the action of the Division in approving the Plan nor has any person sought to obtain regulatory or judicial review of in accordance with the action of the FRB in approving the Holding Company ApplicationMassachusetts Regulations.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer and President of the Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus fairly present the financial condition and results of operations of the MHC Company and the subsidiaries any subsidiary, as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus.
(f) At the time of the execution of this Agreement, the Agent shall have received from W▇▇▇▇▇▇▇▇▇, ▇ & H▇▇▇▇▇▇▇ & Company, P.C., P.C. a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the Company, the MHC, the Company Bank and the Bank Subsidiaries within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the Massachusetts Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇S▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and W▇▇▇▇▇▇▇▇▇, ▇ & H▇▇▇▇▇▇▇ & Company, P.C. set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC Company included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and Act, the Securities Act Regulations and the Massachusetts Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC and the Bank Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings stockholders’ equity of the MHC and the BankCompany, in each case as compared with the amounts shown in the consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from [ ]January 1, 2014 2015 to a specified date not more than five (5) days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCCompany, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus disclose have occurred or may will likely occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the MHC and the Bank identified in such letter.
(g) At the Closing Time, the Agent shall have received from W▇▇▇▇▇▇▇▇▇, ▇ & H▇▇▇▇▇▇▇ & Company, P.C. a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(h) At the Closing Time, the Securities and the Foundation Shares shall have been approved for trading quotation on the Nasdaq Capital Market upon notice of issuance.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisalAppraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by Federal, either Federal or Massachusetts or New York authorities.
Appears in 2 contracts
Sources: Agency Agreement (Provident Bancorp, Inc.), Agency Agreement (Provident Bancorp, Inc.)
Conditions of Agent’s Obligations. The Company, the MHCBank, the Bank MHC and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC Bank and the Bank MHC herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC Bank and the Bank MHC made pursuant to the provisions hereof, to the performance by the Company, the MHC Company and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, threatened by the FRB, Commission or the FRB and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇ ▇▇ Lovells US LLP▇▇▇▇▇, PC, counsel for the Company, the MHC Bank and the BankMHC, in form and substance satisfactory to counsel for the Agent, set forth on as attached hereto as Exhibit A hereto.A.
(2) The favorable opinion, dated as of the Closing Time, of Silver, ▇▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇ Procter LLP, counsel for the Agent, with respect as to such matters as the Agent may reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇▇▇ ▇▇▇▇▇▇, PC and Silver, ▇▇▇▇▇▇▇▇, ▇▇▇▇ Lovells US LLP and & ▇▇▇▇▇▇▇ Procter LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial financial, pro forma or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial financial, pro forma or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective effective, as of the date of the Prospectus or at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇ ▇▇▇▇▇▇, PC and Silver, ▇▇▇▇▇▇▇▇, ▇▇▇▇ Lovells US LLP and & ▇▇▇▇▇▇▇ Procter LLP may rely as to matters of fact on certificates of officers and directors of the Company, the MHC Company and the Bank and certificates of public officials. Silver, and ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ Procter LLP may also rely on the opinion of ▇▇▇▇ ▇▇ Lovells US LLP▇▇▇▇▇, PC.
(c) At the Closing Time referred to in Section 22 hereof, the Company, the MHC Bank and the Bank MHC shall have completed in all material respects the conditions precedent to the Conversion Reorganization in accordance with the Plan, the applicable Conversion MHC Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Reorganization imposed upon the Company Company, the Bank or the Bank MHC by the FRB, the OCC or the FDIC or any other regulatory authority other than those which the FRB FRB, the OCC or the Division permits FDIC or any such other regulatory authority permit to be completed after the ConversionReorganization.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC and the Bank, considered as one enterpriseMaterial Adverse Effect, whether or not arising in the ordinary course of business consistent with past practicebusiness, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the Bank and the MHC and of the Bank and the Chief Financial Officer of the Company, of the Bank and the MHC, and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse changeMaterial Adverse Effect, (ii) there shall have been no material transaction entered into by the Company, the MHC Bank or the Bank MHC from the latest date as of which the financial condition of the Company, the MHC Company or the Bank, as set forth in the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither none of the Company nor Company, the Bank or the MHC shall have received from the FRB FRB, the OCC or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC Bank or the BankMHC, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC Bank and the Bank has MHC have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company, the Bank or the MHC, threatened by the Commission, and (vii) no order suspending the Subscription FRB’s approval of the Holding Company Application and Community Offering the MHC Notice, the OCC’s approval of the OCC Applications and the FDIC’s approval of the FDIC Application or the Syndicated Community Offering or the authorization for final use of the Prospectus transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to their knowledgethe knowledge of the Company, the Bank or the MHC, threatened by the FRB FRB, the OCC or the FDIC and no person has sought to obtain regulatory or judicial review of the action of the Division FRB in approving the Plan in accordance with the MHC Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the MHC Notice or the Holding Company Application, and (viii) no order suspending the Subscription and Community Offering or the Syndicated Offering or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the FRB.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the Bank and the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC Bank and of the BankMHC, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package fairly present the financial condition and results of operations of the MHC and the subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the General Disclosure PackageProspectus; (iv) they are responsible for establishing and maintaining disclosure controls and procedures; (v) they have designed such disclosure controls and procedures to ensure that material information relating to the Company and the Bank is made known to them; (vi) they have evaluated the effectiveness of their disclosure controls and procedures; and (vii) they have disclosed to PKM and the audit committee (A) all significant deficiencies in the design or operation of disclosure controls and procedures which are reasonably likely to adversely affect the Bank’s ability to record, including process, summarize, and report financial data, and have identified for the ProspectusCompany’s and the Bank’s independent registered public accounting firm any material weaknesses in disclosure controls and procedures and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s and the Bank’s disclosure controls and procedures.
(f) At the time As of the execution of this Agreementdate hereof, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C., PKM a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHC, the Company and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the MHC Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. PKM set forth in detail in such letterletters, nothing has come to their attention which causes them to believe that that, except as set forth in such letters, (A) the unaudited consolidated financial statements and supporting schedules of the MHC included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” or under “Recent Developments” in the Registration Statement Prospectus and Prospectus the General Disclosure Package do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited consolidated financial statements included in the Registration Statement, the Prospectus and the General Disclosure Package, (CB) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC and the Bank or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings of the MHC and the Bank, in each case as compared with the amounts shown in the consolidated December 31, 2016 unaudited statements of financial conditions included condition presented under the “Recent Developments” caption in the Registration Statement or, (D) during the period from [ ]December 31, 2014 2016 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCBank, except in all instances for increases or decreases which the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement Statement, Prospectus and the General Disclosure Package, including the Prospectus Package and which that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the MHC Company and the Bank identified in such letter.
(g) At the Closing Time, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. PKM a letter, letter dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter letters furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(h) At the Closing Time, the Securities shall have been approved for trading listing on the Nasdaq Capital Market upon notice of issuanceMarket.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either any of the NYSE MKT, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either any of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by Federal, Massachusetts either Federal or New York Georgia authorities.
Appears in 2 contracts
Sources: Agency Agreement (Community First Bancshares, Inc.), Agency Agreement (Community First Bancshares, Inc.)
Conditions of Agent’s Obligations. The Mutual Holding Company, the MHCCompany, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC Company and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC Company and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC Company and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge Knowledge of the Mutual Holding Company, Company or Bank, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or, to the knowledge Knowledge of the Mutual Holding Company, Company or Bank, threatened by the FRBCommission, the OCFR or the FRB and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇ ▇▇ Lovells US LLP▇▇▇▇▇, PC, counsel for the Mutual Holding Company, the MHC Company and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on as attached hereto as Exhibit A hereto.A.
(2) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇ Procter & Bird LLP, counsel for the Agent, with respect as to such matters as the Agent may reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇▇▇ ▇▇ Lovells US LLP ▇▇▇▇▇, PC and ▇▇▇▇▇▇▇ Procter & Bird LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial financial, pro forma, appraisal or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial financial, pro forma, appraisal or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective effective, as of the date of the Prospectus or at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇ ▇▇ Lovells US LLP ▇▇▇▇▇, PC and ▇▇▇▇▇▇▇ Procter & Bird LLP may rely as to matters of fact on certificates of officers and directors of the Mutual Holding Company, the MHC Company and the Bank and certificates of public officials, and ▇. ▇▇▇▇▇▇ Procter & Bird LLP may also rely on the opinion of ▇▇▇▇ ▇▇ Lovells US LLP▇▇▇▇▇, PC.
(c) At the Closing Time referred to in Section 2SECTION 2 hereof, the Company, the MHC Company and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion OCFR Regulations, the applicable FRB Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Mutual Holding Company, Company or the Bank by the FRB, OCFR or any other regulatory authority other than those which the OCFR, the FRB or the Division permits any such other regulatory authority permit to be completed after the consummation of the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC and the Bank, considered as one enterpriseMaterial Adverse Effect, whether or not arising in the ordinary course of business consistent with past practicebusiness, and the Agent shall have received a certificate of the President and Chief Executive Officer Officers of the Mutual Holding Company, of the MHC Company and of the Bank and the Chief Financial Officer of the Mutual Holding Company, of the MHC, Company and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse changeMaterial Adverse Effect, (ii) there shall have been no material transaction entered into by the Mutual Holding Company, the MHC or the Company and Bank from the latest date as of which the financial condition of the Mutual Holding Company, the MHC or the Company and Bank, as set forth in the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither the Mutual Holding Company, Company nor the Bank shall have received from the FRB FRB, the OCFR or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which would materially and adversely would affect the business, financial condition, results of operations or prospects of the Mutual Holding Company, the MHC Company or the Bank, considered as one enterprise, (iv) the representations and warranties in Section SECTION 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Mutual Holding Company, the MHC Company and the Bank has have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the Knowledge of the Mutual Holding Company, the Company, or the Bank, threatened by the Commission, (vii) no order suspending the FRB’s approval of the Holding Company Conversion Application or the OCFR’s approval of the Conversion Application or the transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to the Knowledge of the Mutual Holding Company, the Company, or the Bank, threatened by the FRB or the OCFR and no person has sought to obtain regulatory or judicial review of the action of the OCFR in approving the Plan in accordance with the OCFR Regulations nor has any person sought to obtain regulatory or judicial review of the action of the OCFR in approving the Conversion Application or the FRB in approving the Holding Company Conversion Application, and (viiviii) no order suspending the Subscription and Community Offering or the Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or, to their knowledge, threatened by the FRB and no person has sought to obtain regulatory or judicial review of the action of the Division in approving the Plan nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Holding Company ApplicationOCFR.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer Officers of the Mutual Holding Company, of the MHC Company and of the Bank and the Chief Financial Officer of the Mutual Holding Company, of the MHC Company and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus; (ii) based on their knowledgethe Registration Statement, the Registration Statement Prospectus and the General Disclosure Package, including the Prospectus, Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on their knowledge, the financial statements and other financial information included in the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package fairly present the financial condition and results of operations of the MHC and the subsidiaries Company as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus.
(f) At the time As of the execution of this Agreementdate hereof, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C., FORVIS a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHCMutual Holding Company, the Company and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. FORVIS set forth in detail in such letter, nothing has come to their attention which causes them to believe that that, except as set forth in such letter, (A) the unaudited consolidated financial statements and supporting schedules of the MHC included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” or under “Recent Developments” in the Registration Statement Prospectus and Prospectus the General Disclosure Package do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, the Prospectus and the General Disclosure Package, (CB) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC and Company or the Bank or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings equity of the MHC and Company or the Bank, in each case as compared with the amounts shown in the consolidated statements of financial conditions included in the Registration Statement December 31, 2022 audited balance sheets or, (DC) during the period from [ ]December 31, 2014 2022 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCCompany or the Bank or increases in interest expense or the provision for loan losses, except in all instances for increases or decreases which the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement Statement, Prospectus and the General Disclosure Package, including the Prospectus Package and which that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the MHC Company and the Bank identified in such letter.
(g) At the Closing Time, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. FORVIS a letter, letter dated as of the Closing Time, to the effect that they reaffirm it reaffirms the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(h) At the Closing Time, the Securities shall have been approved for trading listing on the Nasdaq Capital Market upon notice of issuanceStock Market.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either any of the NYSE MKT, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either any of said Exchanges exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by Federal, Massachusetts either Federal or New York Maryland authorities.
Appears in 2 contracts
Sources: Agency Agreement (BV Financial, Inc.), Agency Agreement (BV Financial, Inc.)
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC Company and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC Company and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC Company and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the FRBDivision, the FRB or the FDIC, and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇▇▇▇ Lovells US LLP▇▇▇▇▇▇▇▇, counsel for the Company, the MHC Company and the Bank, in form and substance satisfactory to counsel for the Agent, to the effect set forth on Exhibit A hereto.
(2) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ Procter LLP& Fish LLP (“▇▇▇▇▇▇”), counsel for the Agent, with respect to the matters set forth in clauses (i), (ii), (v), (vii), (viii) (solely as to preemptive rights arising by operation of law), (xv), (xvi) and (xviii) of Exhibit A and such other matters as the Agent may reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇▇▇▇▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇▇ Procter LLP and ▇▇▇▇▇▇ shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. To the extent not inconsistent with the assumptions, qualifications and limitations which shall be set forth in the opinion, the opinions of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ will be governed by, and shall be interpreted in accordance with, the Legal Opinion Accord (the “Accord”) of the American Bar Association Section of Business Law (1991). The clause “to counsel’s knowledge,” “to such counsel’s actual knowledge” or similar terms used in said opinion shall have the meaning set forth in the Accord for the term “Actual Knowledge.” In giving their opinions, ▇▇▇▇▇▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇▇ Procter LLP and ▇▇▇▇▇▇ may rely as to matters of fact on certificates of officers and directors of the Company, the MHC Bank and the Bank Subsidiaries and certificates of public officials, and ▇▇▇▇▇▇▇ Procter LLP may also rely on the opinion of ▇▇▇▇▇▇▇▇▇▇ Lovells US LLP▇▇▇▇▇▇▇▇.
(c) At the Closing Time referred to in Section 2, the Company, the MHC Company and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company or the Bank by the FRBDivision, or any other regulatory authority other than those which the FRB or the Division permits to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC Bank and the BankSubsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC Company and of the Bank and the Chief Financial Officer of the Company, of the MHC, Company and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the MHC Bank or any of the Bank Subsidiaries from the latest date as of which the financial condition of the Company, the MHC Bank or any of the BankSubsidiaries, as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, practice (iii) neither the Company nor the Bank shall have received from the Division, the FRB or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC Company or the Bank, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC Company and the Bank has complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission, and (vii) no order suspending the Subscription and Community Offering or the Syndicated Community Public Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or, to their knowledge, or threatened by the Division, the FRB or the FDIC and no person has sought to obtain regulatory or judicial review of the action of the Division in approving the Plan in accordance with the Conversion Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Holding Company Application.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC Company and of the Bank and the Chief Financial Officer of the Company, of the MHC Company and of the Bank, dated as of the Closing Time, to the effect that (i) they have he has reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on their his knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on their his knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, fairly present the financial condition and results of operations of the MHC Bank and the subsidiaries Subsidiaries as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus; (iv) he is responsible for establishing and maintaining internal controls; (v) he has designed such internal controls to ensure that material information relating to the Company and the Bank is made known to them; (vi) he has evaluated the effectiveness of their internal controls; and (vii) he has disclosed to Wolf & Co., P.C. and the audit committee (A) all significant deficiencies in the design or operation of internal controls which could adversely affect the Company’s and the Bank’s ability to record, process, summarize, and report financial data, and have identified for the Company’s and the Bank’s auditors any material weaknesses in internal controls and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s and the Bank’s internal controls.
(f) At the time of the execution of this Agreement, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Wolf & CompanyCo., P.C., a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHCCompany, the Company Bank and the Bank Subsidiaries within the meaning of the Code of Ethics of the American Institute of Certified Public Accountants, the Securities Act and Act, the Securities Act Regulations and the Conversion Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Wolf & CompanyCo., P.C. set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC Company included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and Act, the Securities Act Regulations and the Conversion Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” and under “Recent Developments” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC and the Bank or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings of the MHC and the Bank, in each case as compared with the amounts shown in the consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from [ ]October 1, 2014 2011 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCCompany, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the MHC Company and the Bank identified in such letter.
(g) At the Closing Time, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Wolf & CompanyCo., P.C. a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five days prior to the Closing Time.
(h) At the Closing Time, the Securities shall have been approved for trading on the Nasdaq Capital Market upon notice of issuance.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by Federal, Massachusetts or New York authorities.
Appears in 2 contracts
Sources: Agency Agreement (Wellesley Bancorp, Inc.), Agency Agreement (Wellesley Bancorp, Inc.)
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder --------------------------------- pursuant to this Agreement are subject to the accuracy of the representations and warranties of the Company, the MHC and the Bank Company contained herein contained as or in certificates of the date hereof and the Closing Time, to the accuracy officers of the statements of officers and directors of the Company, the MHC and the Bank made Company delivered pursuant to the provisions hereof, as of the date hereof, the Initial Closing Time and each subsequent Closing Time, to the performance by the Company, the MHC and the Bank Company of their its obligations hereunder, hereunder and to the following further conditions, except the extent waived in writing by the Agent:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, threatened by the FRB, and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Initial Closing Time and each subsequent Closing Time, the Agent shall have received:;
(1i) The favorable opinion, dated as of the Initial Closing Time, of ▇▇▇▇▇ Lovells US LLP, counsel for the Company, the MHC Time and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on Exhibit A hereto.
(2) The favorable opinion, dated as of the each subsequent Closing Time, of ▇▇▇▇▇▇▇ Procter ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, in form and substance reasonably satisfactory to counsel for the Agent, with respect to such matters as substantially in the Agent may reasonably require.form set forth in Exhibit C.
(3ii) In addition to giving their opinions required by subsections (b)(l) The favorable opinion, dated as of the Initial Closing Time and (b)(2), respectivelyeach subsequent Closing Time, of this Section, ▇▇▇▇▇ Lovells US LLP Broad and ▇▇▇▇▇▇, counsel for the Agent, in form and substance satisfactory to the Agent.
(iii) The letters from Hacker, ▇▇▇▇▇▇▇ Procter LLP shall & ▇▇▇▇▇ P.A. dated the Effective Date, the Initial Closing Time and each additionally state that nothing has come subsequent Closing Time, respectively, addressed to their attention that would lead them the Agent in the form reasonably approved by the Agent, containing statements and information of the type ordinarily included in accountant's "comfort letters" to believe that underwriters and sales agents delivered according to Statement of Financial Accounting Standards No. 72 (or any successor bulletin), with respect to the audited financial statements and the other financial information in the Registration Statement and the Prospectus.
(except for financial statementsb) At the Initial Closing Time and each subsequent Closing Time, notes to financial statements, stock valuation information (i) the Registration Statement and schedules and other financial or statistical data included thereinthe Prospectus, as to which counsel need make no statement)may then be amended or supplemented, at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained shall not contain an untrue statement of a material fact or omitted omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus misleading, (except for financial statements, notes to financial statements, stock valuation information and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter LLP 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, and ▇▇▇▇▇▇▇ Procter LLP may also rely on the opinion of ▇▇▇▇▇ Lovells US LLP.
(cii) At the Closing Time referred to in Section 2, the Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company or the Bank by the FRB, or any other regulatory authority other than those which the FRB or the Division permits to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the condition (financial conditionor otherwise), results of operationsearnings, business affairs or prospects assets of the Company, Company or the MHC and the Bank, considered as one enterpriseSubsidiaries, whether or not arising in the ordinary course of business consistent with past practicebusiness, and (iii) no action, suit or proceeding at law or in equity shall be pending or, to the Agent shall have received a certificate of the President and Chief Executive Officer Knowledge of the Company, of threatened against the MHC Company or any Subsidiary that would be required to be set forth in the Prospectus other than as set forth therein and of no proceedings shall be pending or, to the Bank and the Chief Financial Officer Knowledge of the Company, of threatened against the MHCCompany or any Subsidiary before or by any federal, and of the Bankstate or other commission, dated as of the Closing Timeboard or administrative agency wherein an unfavorable decision, ruling or finding could reasonably be expected to the effect that (i) there has been no such material adverse changehave a Material Adverse Effect, (ii) there shall have been no material transaction entered into by the Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the MHC or the Bank, as other than set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither the Company nor the Bank shall have received from the FRB any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC or the Bank, (iv) the representations and warranties Company shall have complied, in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Timeall material respects, (v) each of the Company, the MHC and the Bank has complied with all agreements and satisfied all conditions on their its part to be performed or satisfied at or prior to the Initial Closing Time and each subsequent Closing Time, as applicable, (v) the other representations and warranties of the Company set forth in Section 2(a) of this Agreement shall be accurate in all respects as though expressly made at and as of the Initial Closing Time and each subsequent Closing Time, as applicable, and (vi) no stop order suspending the effectiveness of the Registration Statement has shall have been issued and no proceedings proceeding for that purpose have been initiated or threatened by the Commission, and (vii) no order suspending the Subscription and Community Offering or the Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose shall have been initiated or, to their knowledgethe Knowledge of the Company, threatened by the FRB and no person has sought to obtain SEC or any bank regulatory or judicial review of the action of the Division in approving the Plan nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Holding Company Application.
(e) agency. At the Initial Closing Time and each subsequent Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC and of the Bank, dated as of the Initial Closing Time and each subsequent Closing Time, as applicable, to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, fairly present the financial condition and results of operations of the MHC and the subsidiaries as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectuseffect.
(fc) At the time of the execution of this Agreement, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C., a letter dated such date, in form Initial Closing Time and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHC, the Company and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public Accountants, the Securities Act and the Securities Act Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC and the Bank or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings of the MHC and the Bank, in each case as compared with the amounts shown in the consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from [ ], 2014 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHC, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the MHC and the Bank identified in such letter.
(g) At the Closing Time, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five days prior to the Closing Time.
(h) At the Closing Time, the Securities shall have been approved for trading on the Nasdaq Capital Market upon notice of issuance.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the subsequent Closing Time, counsel for the Agent shall have been furnished with all such documents documents, certificates and opinions as they may require request for the purpose of enabling them to pass upon the issuance and sale of the Securities Debentures as contemplated in this Agreement and the Foundation Shares as herein contemplated matters referred to in Section 5 of this Agreement, and related proceedings, or in order to evidence the accuracy and completeness of any of the representations representations, warranties or warrantiesstatements of the Company, the performance of any of the covenants of the Company, or the fulfillment of any of the conditions, conditions herein contained; and all proceedings taken by the Company at or prior to the Initial Closing Time and each subsequent Closing Time in connection with the authorization, issuance and sale of the Securities and the Foundation Shares Debentures as herein contemplated in this Agreement shall be satisfactory in form and substance to the Agent and counsel for the Agentits counsel.
(kd) At any time prior The Company shall have paid, or made arrangements satisfactory to the Closing TimeAgent for the payment of, all such expenses as may be required by Section 4 hereof.
(ie) there The Debentures shall not have occurred any material adverse change in been qualified or registered for sale, or are subject to an available exemption from such qualification or registration, under the financial markets in the United States Blue Sky or elsewhere or any outbreak securities laws of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of such jurisdictions as shall have been specified by the Agent, is so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for Offering contemplated by this Agreement shall have been cleared by the sale NASD. If any of the Securities, and (ii) trading generally on either the New York Stock Exchange or the Nasdaq Stock Market conditions specified in this Section 5 shall not have been suspendedfulfilled when and as required by this Agreement to be fulfilled, and minimum this Agreement may be terminated by the Agent on notice to the Company at any time at or maximum prices for trading shall prior to the Initial Closing Time or any subsequent Closing Time, or, if the Agent so elects, the Agent may waive in writing any such conditions that have not have been fixedfulfilled, or maximum ranges for prices for securities have been requiredmay extend the time of their fulfillment. If the Agent terminates this Agreement as provided herein, by either such termination shall be without liability of said Exchanges or by order of the Commission or any party to any other governmental authorityparty, except as provided in Section 4. Notwithstanding any such termination, the provisions of Sections 4, 6, 7 and a banking moratorium 11 of this Agreement shall not have been declared by Federal, Massachusetts or New York authoritiesremain in effect.
Appears in 2 contracts
Sources: Sales Agent Agreement (Florida Savings Bancorp Inc), Sales Agent Agreement (Florida Savings Bancorp Inc)
Conditions of Agent’s Obligations. The Company, the MHCMutual Holding Company, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC Mutual Holding Company and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC Mutual Holding Company and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC Mutual Holding Company and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, Statement shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, Prospectus shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the FRBCommission or the OTS, and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇▇▇▇ Lovells US ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, the MHC Mutual Holding Company and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on as attached as Exhibit A hereto.:
(2) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ Procter & ▇▇▇▇▇▇ LLP, counsel for the Agent, with respect to the matters set forth in Section 5(b)(1)(i), (iv), (v), (vi), (ix), (xi), (xiv) and (xvi) and such other matters as the Agent may reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇▇▇▇▇▇▇▇▇ Lovells US ▇▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ Procter & ▇▇▇▇▇▇ LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇▇▇▇▇▇▇ Lovells US ▇▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ Procter & ▇▇▇▇▇▇ LLP may rely as to matters of fact on certificates of officers and directors of the Company, the MHC Mutual Holding Company, the Bank and the Bank Subsidiaries and certificates of public officials, and ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ Procter & ▇▇▇▇▇▇ LLP may also rely on the opinion of ▇▇▇▇▇▇▇▇▇▇ Lovells US LLP▇▇▇▇▇▇▇▇ LLP with respect to matters set forth in paragraphs (i), (iv), (v), (vi), (vii), (viii), (ix), (xi), (xiii), (xiv), (xv), (xvi) and (xvii).
(c) At the Closing Time referred to in Section 2, the Company, the MHC Mutual Holding Company and the Bank shall have completed in all material respects the conditions precedent to the Conversion Reorganization and Minority Stock Issuance in accordance with the Plan, the applicable Conversion OTS Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Reorganization and Minority Stock Issuance imposed upon the Company, the Mutual Holding Company or the Bank by the FRBOTS, or any other regulatory authority other than those which the FRB or the Division OTS permits to be completed after the ConversionReorganization and Minority Stock Issuance.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC and Mutual Holding Company, the Bank, the Subsidiaries and Fairfield County Trust I, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC Mutual Holding Company and of the Bank and the Chief Financial Officer chief financial or chief accounting officer of the Company, of the MHC, Mutual Holding Company and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the MHC Mutual Holding Company or the Bank from the latest date as of which the financial condition of the Company, the MHC Mutual Holding Company or the Bank, as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, practice (iii) neither the Company, the Mutual Holding Company nor the Bank shall have received from the FRB OTS any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC Mutual Holding Company or the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC Mutual Holding Company and the Bank has have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission, and (vii) no order suspending the Subscription and Community Offering or the Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or, to their knowledge, or threatened by the FRB OTS and no person has sought to obtain regulatory or judicial review of the action of the Division OTS in approving the Plan in accordance with the OTS Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB OTS in approving the Holding Company ApplicationPlan.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer and President of the Company, of the MHC Mutual Holding Company and of the Bank and the Chief Financial Officer of the Company, of the MHC Mutual Holding Company and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus fairly present the financial condition and results of operations of the MHC Bank and the subsidiaries Subsidiaries as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus.
(f) At the time of the execution of this Agreement, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C., KPMG LLP a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHCCompany, the Company Mutual Holding Company, the Bank and the Bank Subsidiaries within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the OTS Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. KPMG LLP set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC Company included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and Act, the Securities Act Regulations and the OTS Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC and the Bank Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings net worth of the MHC and the BankCompany, in each case as compared with the amounts shown in the consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from [ ]January 1, 2014 2010 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCCompany, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the MHC Company, the Mutual Holding Company and the Bank identified in such letter.
(g) At the Closing Time, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. KPMG LLP a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(h) At the Closing Time, the Securities shall have been approved for trading quotation on the Nasdaq Capital Global Market upon notice of issuance.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, Massachusetts Connecticut or New York authorities.
Appears in 2 contracts
Sources: Agency Agreement (Fairfield County Bank Corp.), Agency Agreement (Fairfield County Bank Corp.)
Conditions of Agent’s Obligations. The Company, the MHC, the Bank Partners Trust Parties and the Agent agree that the issuance and the sale of Securities and the issuance of the Exchange Shares and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC and the Bank Partners Trust Parties herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC and the Bank Partners Trust Parties made pursuant to the provisions hereof, to the performance by the Company, the MHC and the Bank Partners Trust Parties of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, Statement shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, Prospectus shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the FRB, OTS and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇ Lovells US LLP& ▇▇▇▇▇▇▇, L.L.P., special counsel for the Company, the MHC and the BankPartners Trust Parties, in form and substance satisfactory to counsel for the Agent, set forth on Exhibit A hereto.
(2) The favorable opinion, dated as of Closing Time, of Wachtell Lipton ▇▇▇▇▇ & ▇▇▇▇, counsel for BSB and BSB Bank, in form and substance satisfactory to the Agent.
(3) The favorable opinion, dated as of Closing Time, of ▇▇▇▇▇▇▇ Procter ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Agent, with respect in form and substance satisfactory to such matters as the Agent may reasonably requireAgent.
(34) In addition to giving their opinions required by subsections (b)(l) and (b)(2b)(3), respectively, of this Section, ▇▇▇▇▇ Lovells US LLP & ▇▇▇▇▇▇▇, L.L.P. and ▇▇▇▇▇▇▇ Procter ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or and at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇▇ Lovells US LLP and & ▇▇▇▇▇▇▇, L.L.P., ▇▇▇▇▇▇▇ Procter ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP and Wachtell Lipton ▇▇▇▇▇ & ▇▇▇▇ may rely as to matters of fact on certificates of officers and directors of the CompanyPartners Trust Parties or BSB and BSB Bank, the MHC and the Bank as applicable, and certificates of public officials, and ▇▇▇▇▇▇▇ Procter ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may also rely on the opinion of ▇▇▇▇▇ Lovells US LLP& ▇▇▇▇▇▇▇, L.L.P. The opinions of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P., Wachtell Lipton ▇▇▇▇▇ & ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall be governed by the provisions of The Legal Opinion Accord (the “Accord”) of the American Bar Association Section of Business Law (1991) and the clause “to such counsel’s knowledge,” or similar terms and phrases as used herein shall have the meaning set forth in the Accord for the term “Actual Knowledge.”
(c) At the Closing Time referred to in Section 2, the Company, the MHC and the Bank Partners Trust Parties shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations Regulations, and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company or the Bank Partners Trust Parties by the FRBOTS, or any other regulatory authority other than those which the FRB or the Division OTS permits to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC Partners Trust Parties and the Bank, Subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of PTFG, the Company, of the MHC Company and of the Bank and the Chief Financial Officer principal financial or principal accounting officer of PTFG, the Company, of the MHC, Company and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, ; (ii) there shall have been no material transaction transactions entered into by the Company, the MHC or the Bank Partners Trust Parties from the latest date as of which the financial condition of the Company, the MHC or the Bank, as Partners Trust Parties is set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, ; (iii) neither the Company nor the Bank Partners Trust Parties shall not have received from the FRB OTS any order or direction (oral or written) to make any material change in the method of conducting its business with which it has they have not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the businessbusiness affairs, financial condition, results of operations or prospects of the Company, the MHC Partners Trust Parties or the Bank, Subsidiaries; (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, ; (v) each of the Company, the MHC and the Bank has Partners Trust Parties have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, ; (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission, ; and (vii) no order suspending the Subscription and Community Offering or the Syndicated Community Offering Offerings or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or, to their knowledge, or threatened by the FRB OTS and no person has sought to obtain regulatory or judicial review of the action of the Division OTS in approving the Plan in accordance with the Conversion Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB OTS in approving the Holding Company Application.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of PTFG, the Company, of the MHC Company and of the Bank and the Chief Financial Officer principal financial officer or principal accounting officer of PTFG, the Company, of the MHC Company and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus fairly present the financial condition and results of operations of the MHC Partners Trust Parties and the subsidiaries Subsidiaries as of and for the dates and periods covered by the Registration Statement and the General Disclosure PackageProspectus; (iv) they are responsible for establishing and maintaining internal controls; (v) they have designed such internal controls to ensure that material information relating to the Partners Trust Parties and the Subsidiaries is made known to them; (vi) they have evaluated the effectiveness of their internal controls; and (vii) they have disclosed to KPMG and the audit committee (A) all significant deficiencies in the design or operation of internal controls which could adversely affect the Partners Trust Parties’ ability to record, including process, summarize, and report financial data, and have identified for the ProspectusPartners Trust Parties’ auditors any material weaknesses in internal controls and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Partners Trust Parties’ internal controls.
(f) At the time of the execution of this Agreement, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C., KPMG a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: that (i) they are independent public accountants with respect to the MHCPartners Trust Parties, the Company Subsidiaries, BSB, BSB Bank and the Bank BSB Subsidiaries within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations, they are registered with Regulations and the PCAOB, Conversion Regulations and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. KPMG set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC Partners Trust Parties and their Subsidiaries and BSB and BSB Bank and its subsidiaries included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and Act, the Securities Act Regulations and the Conversion Regulations or are not presented in conformity with generally accepted accounting principles used in the United States applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other DataData of Partners Trust Financial” and “Selected Consolidated Financial and Other Data of BSB Bancorp and Subsidiaries” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long-long term or short-short term debt of the MHC PTFG and the Bank Subsidiaries or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings of the MHC PTFG, and the BankSubsidiaries, in each case as compared with the amounts shown in the consolidated statements of financial conditions December 31, 2003 balance sheet included in the Registration Statement orStatement, (D) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long term or short term debt of BSB and its subsidiaries or any decrease in consolidated total assets, the allowance for loan losses, total deposits or stockholder’s equity of BSB and its subsidiaries in each case as compared with the amounts shown in the December 31, 2003 balance sheet included in the Registration Statement, (E) during the period from [ ]December 31, 2014 2003 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of PTFG and the MHCSubsidiaries, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus disclose have occurred or may occur; , or (F) during the period from December 31, 2003 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of BSB and its subsidiaries, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur, and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the MHC Partners Trust Parties and the Bank Subsidiaries and of BSB and its subsidiaries identified in such letter.
(g) At the Closing Time, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. KPMG a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five days prior to the Closing Time.
(h) At the Closing Time, the Securities and the Exchange Shares shall have been approved for trading listing on the Nasdaq Capital National Market upon notice of issuance.
(i) At the Closing Time, the Agent shall have received a letter from the AppraiserR.P. Financial, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation issuance of the Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities Securities, the issuance of the Exchange Shares and the Foundation Shares Merger as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by Federal, Massachusetts either Federal or New York authorities.
Appears in 2 contracts
Sources: Agency Agreement (Partners Trust Financial Group Inc), Agency Agreement (Partners Trust Financial Group Inc)
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC Company and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC Company and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC Company and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, Statement shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, Prospectus shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the FRB, OTS and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇▇▇▇ Lovells US LLP▇▇▇▇▇▇▇▇, counsel for the Company, the MHC Company and the Bank, in form and substance satisfactory to counsel for the Agent, to the effect set forth on Exhibit A hereto.in Appendix A.
(2) The favorable opinion, dated as of the Closing Time, of SNR ▇▇▇▇▇▇▇ Procter LLP, counsel for the Agent, with respect to the matters set forth in clauses (i), (ii), (v), (vii), (viii) (solely as to preemptive rights arising by operation of law), (xv), (xvi) and (xviii) of Appendix A and such other matters as the Agent may reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇▇▇▇▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇▇ Procter LLP and SNR ▇▇▇▇▇▇ shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statementsstatements and schedules, notes to financial statements, stock valuation information and schedules and other financial or statistical data included thereintherein or omitted therefrom, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statementsstatements and schedules, notes to financial statements, stock valuation information and schedules and other financial or statistical data included thereintherein or omitted therefrom, as to which counsel need make no statement), at the time the Registration Statement became effective or at the Closing Time, or that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. To the extent not inconsistent with the assumptions, qualifications and limitations which shall be set forth in the opinion, the opinions of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and SNR ▇▇▇▇▇▇ will be governed by, and shall be interpreted in accordance with, the Legal Opinion Accord (the “Accord”) of the American Bar Association Section of Business Law (1991). The clause “to counsel’s knowledge,” “to such counsel’s actual knowledge” or similar terms used in said opinion shall have the meaning set forth in the Accord for the term “Actual Knowledge.” In giving their opinions, ▇▇▇▇▇▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇▇ Procter LLP and SNR ▇▇▇▇▇▇ may rely as to matters of fact on certificates of officers and directors of the Company, the MHC Company and the Bank and certificates of public officials, and ▇SNR ▇▇▇▇▇▇ Procter LLP may also rely on the opinion of ▇▇▇▇▇▇▇▇▇▇ Lovells US LLP▇▇▇▇▇▇▇▇.
(c) At the Closing Time referred to in Section 2, the Company, the MHC Company and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company or the Bank by the FRBOTS, or any other regulatory authority other than those which the FRB or the Division OTS permits to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC Bank and the Bank, Subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President Chairman and Chief Executive Officer of the Company, of the MHC and of the Bank and the President and Chief Financial Operating Officer of the Company, of the MHC, Company and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the MHC Bank or the Bank Subsidiaries from the latest date as of which the financial condition of the Company, the MHC Company or the Bank, Bank as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither the Company nor the Bank shall have received from the FRB OTS or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the businessbusiness affairs, financial condition, results of operations or prospects of the Company, the MHC Company or the Bank, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC Company and the Bank has complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission, Commission and (vii) no order suspending the Subscription and Community Offering Offerings or the Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or, to their knowledge, or threatened by the FRB OTS and no person has sought to obtain regulatory or judicial review of the action of the Division OTS in approving the Plan in accordance with the Conversion Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB OTS in approving the Holding Company Application.
(e) At the Closing Time, the Agent shall have received a certificate of the President Chairman and Chief Executive Officer of the Company, of the MHC and of the Bank and the President and Chief Financial Operating Officer of the Company, of the MHC Company and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the Prospectus and the General Disclosure Package, including the Prospectus; (ii) based on their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on their knowledge, the financial statements and other financial information included in the Registration Statement and the Prospectus and the General Disclosure Package, including the Prospectus, Package fairly present the financial condition and results of operations of the MHC and the subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the General Disclosure PackageProspectus; (iv) they are responsible for establishing and maintaining internal controls; (v) they have designed such internal controls to ensure that material information relating to the Company and the Bank is made known to them; (vi) they have evaluated the effectiveness of their internal controls; and (vii) they have disclosed to ▇▇▇▇▇▇▇ & Company and the audit committee (A) all significant deficiencies in the design or operation of internal controls which could adversely affect the Company’s and the Bank’s ability to record, including process, summarize, and report financial data, and have identified for the ProspectusCompany’s and the Bank’s auditors any material weaknesses in internal controls and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s and the Bank’s internal controls.
(f) At the time of the execution of this Agreement, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C., Company a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: that (i) they are independent public accountants with respect to the MHC, the Company and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public Accountants, the Securities Act and Act, the Securities Act Regulations, and the Conversion Regulations and they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions opinion therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. Company set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC Bank included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and Act, the Securities Act Regulations and the Conversion Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” or under “Recent Developments” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions caption or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC and the Bank or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings of the MHC and the Bank, in each case as compared with the amounts shown in the consolidated statements of financial conditions balance sheet included in the Registration Statement or, (D) during the period from [ ]September 30, 2014 2010 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCBank, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and the General Disclosure Package, including the Prospectus Prospectus, and which are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the MHC Company and the Bank identified in such letter.
(g) At the Closing Time, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. Company a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five days prior to the Closing Time.
(h) At the Closing Time, the Securities shall have been approved for trading on the Nasdaq Capital Market OTC Bulletin Board upon notice of issuance, provided that the Agent has timely filed the application for such trading.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by Federal, Massachusetts or New York or Maryland authorities.
Appears in 2 contracts
Sources: Agency Agreement (Fraternity Community Bancorp Inc), Agency Agreement (Fraternity Community Bancorp Inc)
Conditions of Agent’s Obligations. The Company, the MHCBank, the Bank MHC and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC Bank and the Bank MHC herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC Bank and the Bank MHC made pursuant to the provisions hereof, to the performance by the Company, the MHC Company and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, threatened by the FRB, Commission or the FRB and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of L▇▇▇ ▇▇▇▇▇ Lovells US LLP▇▇, PC, counsel for the Company, the MHC Bank and the BankMHC, in form and substance satisfactory to counsel for the Agent, set forth on as attached hereto as Exhibit A hereto.A.
(2) The favorable opinion, dated as of the Closing Time, of R▇▇▇▇▇▇▇ Procter LLP▇▇▇▇▇▇▇ Van Deuren s.c., counsel for the Agent, with respect as to such matters as the Agent may reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, L▇▇▇ ▇▇▇▇▇ Lovells US LLP ▇▇, PC and R▇▇▇▇▇▇▇ Procter LLP ▇▇▇▇▇▇▇ Van Deuren s.c. shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial financial, pro forma or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial financial, pro forma or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective effective, as of the date of the Prospectus or at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, L▇▇▇ ▇▇▇▇▇ Lovells US LLP ▇▇, PC and R▇▇▇▇▇▇▇ Procter LLP ▇▇▇▇▇▇▇ Van Deuren s.c. may rely as to matters of fact on certificates of officers and directors of the Company, the MHC Company and the Bank and certificates of public officials, and . R▇▇▇▇▇▇▇ Procter LLP ▇▇▇▇▇▇▇ Van Deuren s.c. may also rely on the opinion of L▇▇▇ ▇▇▇▇▇ Lovells US LLP▇▇, PC.
(c) At the Closing Time referred to in Section 22 hereof, the Company, the MHC Bank and the Bank MHC shall have completed in all material respects the conditions precedent to the Conversion Reorganization in accordance with the Plan, the applicable Conversion MHC Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Reorganization imposed upon the Company Company, the Bank or the Bank MHC by the FRB, the OCC or the FDIC or any other regulatory authority other than those which the FRB FRB, the OCC or the Division permits FDIC or any such other regulatory authority permit to be completed after the ConversionReorganization.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC and the Bank, considered as one enterpriseMaterial Adverse Effect, whether or not arising in the ordinary course of business consistent with past practicebusiness, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the Bank and the MHC and of the Bank and the Chief Financial Officer of the Company, of the Bank and the MHC, and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse changeMaterial Adverse Effect, (ii) there shall have been no material transaction entered into by the Company, the MHC Bank or the Bank MHC from the latest date as of which the financial condition of the Company, the MHC Company or the Bank, as set forth in the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither none of the Company nor Company, the Bank or the MHC shall have received from the FRB FRB, the OCC or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC Bank or the BankMHC, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC Bank and the Bank has MHC have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company, the Bank or the MHC, threatened by the Commission, and (vii) no order suspending the Subscription FRB’s approval of the Holding Company Application and Community Offering the MHC Notice, the OCC’s approval of the OCC Applications and the FDIC’s approval of the FDIC Application or the Syndicated Community Offering or the authorization for final use of the Prospectus transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to their knowledgethe knowledge of the Company, the Bank or the MHC, threatened by the FRB FRB, the OCC or the FDIC and no person has sought to obtain regulatory or judicial review of the action of the Division FRB in approving the Plan in accordance with the MHC Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the MHC Notice or the Holding Company Application, and (viii) no order suspending the Offerings or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the FRB.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the Bank and the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC Bank and of the BankMHC, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package fairly present the financial condition and results of operations of the MHC and the subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the General Disclosure PackageProspectus; (iv) they are responsible for establishing and maintaining disclosure controls and procedures; (v) they have designed such disclosure controls and procedures to ensure that material information relating to the Company and the Bank is made known to them; (vi) they have evaluated the effectiveness of their disclosure controls and procedures; and (vii) they have disclosed to Wipfli and the audit committee (A) all significant deficiencies in the design or operation of disclosure controls and procedures which are reasonably likely to adversely affect the Bank’s ability to record, including process, summarize, and report financial data, and have identified for the ProspectusCompany’s and the Bank’s independent registered public accounting firm any material weaknesses in disclosure controls and procedures and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s and the Bank’s disclosure controls and procedures.
(f) At the time As of the execution of this Agreementdate hereof, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C., Wipfli a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHC, the Company and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the MHC Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇S▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. Wipfli set forth in detail in such letterletters, nothing has come to their attention which causes them to believe that that, except as set forth in such letters, (A) the unaudited consolidated financial statements and supporting schedules of the MHC included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “"Selected Consolidated Financial and Other Data” " or under "Recent Developments" in the Registration Statement Prospectus and Prospectus the General Disclosure Package do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited consolidated financial statements included in the Registration Statement, the Prospectus and the General Disclosure Package, (CB) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC and the Bank or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings of the MHC and the Bank, in each case as compared with the amounts shown in the consolidated June 30, 2017 unaudited statements of financial conditions included condition presented under the "Recent Developments" caption in the Registration Statement orStatement, or (D) during the period from [ ]June 30, 2014 2017 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCBank, except in all instances for increases or decreases which the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement Statement, Prospectus and the General Disclosure Package, including the Prospectus Package and which that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the MHC Company and the Bank identified in such letter.
(g) At the Closing Time, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. Wipfli a letter, letter dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter letters furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(h) At the Closing Time, the Securities and the Foundation Shares shall have been approved for trading listing on the Nasdaq Capital Market upon notice of issuanceMarket.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the issuance and contribution of the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either any of the NYSE MKT, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either any of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by Federal, Massachusetts either Federal or New York Wisconsin authorities.
Appears in 2 contracts
Sources: Agency Agreement (FFBW, Inc.), Agency Agreement (FFBW, Inc.)
Conditions of Agent’s Obligations. The Company, the MHCBank, the Bank MHC and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC Bank and the Bank MHC herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC Mid-Tier Company, the Bank and the Bank MHC made pursuant to the provisions hereof, to the performance by the Company, the MHC Mid-Tier Company, the Bank and the Bank MHC of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, threatened by the FRB, Commission or the FRB and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇ ▇▇ Lovells US LLP▇▇▇▇▇, PC, counsel for the Company, the MHC Mid-Tier Company, the Bank and the BankMHC, in form and substance satisfactory to counsel for the Agent, set forth on as attached hereto as Exhibit A hereto.A.
(2) The favorable opinion, dated as of the Closing Time, of Silver, ▇▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇ Procter LLP, counsel for the Agent, with respect as to such matters as the Agent may reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇▇▇ ▇▇▇▇▇▇, PC and Silver, ▇▇▇▇▇▇▇▇, ▇▇▇▇ Lovells US LLP and & ▇▇▇▇▇▇▇ Procter LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial financial, pro forma, appraisal or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial financial, pro forma, appraisal or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective effective, as of the date of the Prospectus or at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇ ▇▇▇▇▇▇, PC and Silver, ▇▇▇▇▇▇▇▇, ▇▇▇▇ Lovells US LLP and & ▇▇▇▇▇▇▇ Procter LLP may rely as to matters of fact on certificates of officers and directors of the Company, the MHC Company and the Bank and certificates of public officials. Silver, and ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ Procter LLP may also rely on the opinion of ▇▇▇▇ ▇▇ Lovells US LLP▇▇▇▇▇, PC.
(c) At the Closing Time referred to in Section 22 hereof, the Company, the MHC Mid-Tier Company, the Bank and the Bank MHC shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion FRB Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company Company, the Mid-Tier Company, the Bank or the Bank MHC by the FRB, FRB or any other regulatory authority other than those which the FRB or the Division permits any such other regulatory authority permit to be completed after the consummation of the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC and the Bank, considered as one enterpriseMaterial Adverse Effect, whether or not arising in the ordinary course of business consistent with past practicebusiness, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the Mid-Tier Company, the Bank and the MHC and of the Bank and the Chief Financial Officer of the Company, of the Mid-Tier Company, the Bank and the MHC, and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse changeMaterial Adverse Effect, (ii) there shall have been no material transaction entered into by the Company, the MHC Mid-Tier Company, the Bank or the Bank MHC from the latest date as of which the financial condition of the Company, the MHC Mid-Tier Company or the Bank, as set forth in the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither none of the Company nor Company, the Mid-Tier Company, the Bank or the MHC shall have received from the FRB FRB, the OCC or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which would materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC Mid-Tier Company the Bank or the BankMHC, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC Mid-Tier Company, the Bank and the Bank has MHC have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company, the Mid-Tier Company, the Bank or the MHC, threatened by the Commission, and (vii) no order suspending the Subscription FRB’s approval of the Holding Company Application and Community Offering the Conversion Application or the Syndicated Community Offering or the authorization for final use of the Prospectus transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to their knowledgethe knowledge of the Company, the Mid-Tier Company, the Bank or the MHC, threatened by the FRB and no person has sought to obtain regulatory or judicial review of the action of the Division FRB in approving the Plan in accordance with the FRB Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Conversion Application or the Holding Company Application, and (viii) no order suspending the Subscription and Community Offering or the Syndicated Offering or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the FRB.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the Mid-Tier Company, the Bank and the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC Bank and of the BankMHC, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the consolidated financial statements and other financial information included in the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package fairly present the financial condition and results of operations of the MHC Mid-Tier Company and the subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the General Disclosure PackageProspectus; (iv) they are responsible for establishing and maintaining disclosure controls and procedures; (v) they have designed such disclosure controls and procedures to ensure that material information relating to the Mid-Tier Company and the Bank is made known to them; (vi) they have evaluated the effectiveness of their disclosure controls and procedures; and (vii) they have disclosed to Wipfli and the audit committee (A) all significant deficiencies in the design or operation of disclosure controls and procedures which are reasonably likely to adversely affect the Mid-Tier Company’s and the Bank’s ability to record, including process, summarize, and report financial data, and have identified for the ProspectusMid-Tier Company’s and the Bank’s independent registered public accounting firm any material weaknesses in disclosure controls and procedures and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Mid-Tier Company’s and the Bank’s disclosure controls and procedures.
(f) At the time As of the execution of this Agreementdate hereof, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C., Wipfli a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHCCompany, the Company Mid-Tier Company, the Bank and the Bank MHC within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the FRB Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. Wipfli set forth in detail in such letter, nothing has come to their attention which causes them to believe that that, except as set forth in such letter, (A) the unaudited consolidated financial statements and supporting schedules of the MHC included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” or under “Recent Developments” in the Registration Statement Prospectus and Prospectus the General Disclosure Package do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited consolidated financial statements included in the Registration Statement, the Prospectus and the General Disclosure Package, (CB) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC and the Bank Mid-Tier Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings stockholders’ equity of the MHC and the BankMid-Tier Company, in each case as compared with the amounts shown in the consolidated September 30, 2020 unaudited statements of financial conditions included condition presented under the “Recent Developments” caption in the Registration Statement or, (D) during the period from [ ]September 30, 2014 2020 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCMid-Tier Company or increases in interest expense or the provision for loan losses, except in all instances for increases or decreases which the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement Statement, Prospectus and the General Disclosure Package, including the Prospectus Package and which that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the MHC Company, the Mid-Tier Company, the Bank and the MHC identified in such letter. In addition, as of the date hereof, the Agent shall have received from PKM a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the Company, the Mid-Tier Company, the Bank and the MHC within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the FRB Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinion therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and PKM set forth in detail in such letter, nothing has come to their attention which causes them to believe that, except as set forth in such letter, the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” in the Prospectus and the General Disclosure Package do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited consolidated financial statements included in the Registration Statement, the Prospectus and the General Disclosure Package to which their opinion applied; and (iv) in addition to the examination referred to in their opinion and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information that are included in the Registration Statement, Prospectus and the General Disclosure Package and that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the Mid-Tier Company, the Bank and the MHC identified in such letter.
(g) At the Closing Time, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. each of Wipfli and PKM a letter, letter dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter letters furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(h) At the Closing Time, the Securities and the Exchange Shares shall have been approved for trading listing on the Nasdaq Capital Market upon notice of issuanceStock Market.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by Federal, Massachusetts or New York authorities.sale
Appears in 2 contracts
Sources: Agency Agreement (Community First Bancshares, Inc.), Agency Agreement (Affinity Bancshares, Inc.)
Conditions of Agent’s Obligations. The Company, the Mid-Tier Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and the issuance of the Exchange Shares and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the Mid-Tier Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the FRB, Commission or the Federal Reserve Board and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of Elias, Matz, T▇▇▇▇▇▇ Lovells US LLP& H▇▇▇▇▇▇ L.L.P., counsel for the Company, the Mid-Tier Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on Agent as attached hereto as Exhibit A hereto.C.
(2) The favorable opinion, dated as of the Closing Time, of L▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Procter LLP& S▇▇▇▇▇, PC, counsel for the Agent, with respect as to such matters as the Agent may shall reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Elias, Matz, T▇▇▇▇▇▇ Lovells US LLP & H▇▇▇▇▇▇ L.L.P. and L▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Procter LLP & S▇▇▇▇▇, PC shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at Closing Time, or (if applicable) that the Closing General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, Elias, Matz, T▇▇▇▇▇▇ Lovells US LLP & H▇▇▇▇▇▇ L.L.P. and L▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Procter LLP & S▇▇▇▇▇, PC may rely as to matters of fact on certificates of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank and certificates of public officials, and . L▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Procter LLP & S▇▇▇▇▇, PC may also rely on the opinion of Elias, Matz, T▇▇▇▇▇▇ Lovells US LLP.& H▇▇▇▇▇▇ L.L.P.
(c) At the Closing Time referred to in Section 22 hereof, the Company, the Mid-Tier Company, the MHC and the Bank shall have completed in all material respects with the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion FRB Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company Company, the Mid-Tier Company, the MHC or the Bank by the FRBFederal Reserve Board, the Pennsylvania Banking Department or any other regulatory authority other than those which the FRB Federal Reserve Board or the Division Pennsylvania Banking Department permits to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC and the Bank, considered as one enterpriseMaterial Adverse Effect, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer and President of the Company, of the Mid-Tier Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHCMid-Tier Company, of the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the Mid-Tier Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the Mid-Tier Company, the MHC or the Bank, as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, practice (iii) neither the Company Company, the Mid-Tier Company, the MHC nor the Bank shall have received from the FRB Federal Reserve Board, the Pennsylvania Banking Department or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the Mid-Tier Company, the MHC or the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the Mid-Tier Company, the MHC and the Bank has have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission, Commission and (vii) no order suspending the Subscription and Community Offering Federal Reserve Board’s approval of the Holding Company Application or the Syndicated Community Offering Pennsylvania Banking Department’s approval of the Pennsylvania Application, or the authorization for final use of the Prospectus transactions contemplated thereby, has been issued and no proceedings for that purpose have been initiated or, to their knowledge, or threatened by the FRB Federal Reserve Board or the Pennsylvania Banking Department and no person has sought to obtain regulatory or judicial review of the action of the Division Federal Reserve Board or the Pennsylvania Banking Department in approving the Plan in accordance with the FRB Regulations or the Pennsylvania Banking Department regulations, as applicable, nor has any person sought to obtain regulatory or judicial review of the action of the FRB Federal Reserve Board in approving the Holding Company Application or the Pennsylvania Banking Department in approving the Pennsylvania Application.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer and President of the Mid-Tier Company, of the MHC Company and of the Bank and the Chief Financial Officer of the Mid-Tier Company, of the Company, the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus fairly present the financial condition and results of operations of the MHC Mid-Tier Company and the subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus.
(f) At the time As of the execution of this Agreementdate hereof, the Agent shall have received from ▇S.R. S▇▇▇▇▇▇▇▇, ▇.▇▇▇▇▇▇ & Company, P.C., . a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHCCompany, the Company Mid-Tier Company, the MHC and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the FRB Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇S▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇S.R. S▇▇▇▇▇▇▇▇, ▇.▇▇▇▇▇▇ & Company, P.C. . set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC Mid-Tier Company included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and Act, the Securities Act Regulations and the FRB Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” or under “Recent Developments” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-long term or short-short term debt of the MHC and the Bank Mid-Tier Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings net worth of the MHC and the BankMid-Tier Company, in each case as compared with the amounts shown in the June 30, 2013 consolidated statements of financial conditions balance sheets included in the Registration Statement or, (D) during the period from [ ]June 30, 2014 2013 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCMid-Tier Company, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the Mid-Tier Company, the MHC and the Bank identified in such letter.
(g) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between the Agent and the persons set forth on Exhibit E hereto, relating to sales and certain other dispositions of shares of Common Stock, Mid-Tier Company Common Stock or certain other securities, shall be delivered to the Agent on or before the date hereof and shall be in full force and effect on the Closing Time.
(h) At the Closing Time, the Agent shall have received from ▇S.R. S▇▇▇▇▇▇▇▇, ▇.▇▇▇▇▇▇ & Company, P.C. . a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(hi) At the Closing Time, the Securities and Exchange Shares shall have been approved for trading quotation on the Nasdaq Capital Global Market upon notice of issuance.
(ij) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisalAppraisal.
(jk) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Exchange Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(kl) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, Massachusetts Pennsylvania or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the Mid-Tier Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and the issuance of the Exchange Shares and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the Mid-Tier Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, Statement shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the Commission, no order suspending the Offerings Subscription and Community Offering or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, Prospectus shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the FRB, Commission or the OTS and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇▇▇▇ Lovells US ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, the Mid-Tier Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on Agent as attached hereto as Exhibit A hereto.A.
(2) The favorable opinion, dated as of the Closing Time, of Silver, ▇▇▇▇▇▇▇▇ Procter LLP& Taff, L.L.P., counsel for the Agent, with respect to such matters as the Agent may reasonably require.attached hereto as Exhibit B.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇▇▇▇▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇▇ Procter & ▇▇▇▇▇▇▇▇ LLP and Silver, ▇▇▇▇▇▇▇▇ & Taff, L.L.P. shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at Closing Time, or (if applicable) that the Closing General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter LLP 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, and ▇▇▇▇▇▇▇ Procter LLP may also rely on the opinion of ▇▇▇▇▇ Lovells US LLP.
(c) At the Closing Time referred to in Section 22 hereof, the Company, the Mid-Tier Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion OTS Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company Company, the Mid-Tier Company, the MHC or the Bank by the FRBOTS, or any other regulatory authority other than those which the FRB or the Division OTS permits to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, operations or business affairs or prospects of the Company, the Mid-Tier Company, the MHC and the Bank, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the Mid-Tier Company, of the MHC and of the Bank and the Chief Financial Officer chief financial or chief accounting officer of the Company, of the MHCMid-Tier Company, of the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the Mid-Tier Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the Mid-Tier Company, the MHC or the Bank, as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, practice (iii) neither the Company Company, the Mid-Tier Company, the MHC nor the Bank shall have received from the FRB OTS any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, condition or results of operations or prospects of the Company, the Mid-Tier Company, the MHC or the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the Mid-Tier Company, the MHC and the Bank has have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission, Commission and (vii) no order suspending the Subscription and Community Offering or the Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or, to their knowledge, or threatened by the FRB OTS and no person has sought to obtain regulatory or judicial review of the action of the Division OTS in approving the Plan in accordance with the OTS Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB OTS in approving the Holding Company Conversion Application.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer and President of the Mid-Tier Company, of the MHC Company and of the Bank and the Chief Financial Officer of the Mid-Tier Company, of the MHC Company and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus fairly present the financial condition and results of operations of the MHC Mid-Tier Company and the subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus.
(f) At the time As of the execution of this Agreementdate hereof, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C., ParenteBeard LLC a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) for the two-year period ended September 30, 2010, they are were the independent public accountants with respect to the MHCMid-Tier Company, the Company MHC and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the OTS Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. ParenteBeard LLC set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC Mid-Tier Company included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and Act, the Securities Act Regulations and the OTS Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-long term or short-short term debt of the MHC and the Bank Mid-Tier Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings net worth of the MHC and the BankMid-Tier Company, in each case as compared with the amounts shown in the September 30, 2010 consolidated statements of financial conditions condition included in the Registration Statement or, (D) during the period from [ ]September 30, 2014 2010 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCMid-Tier Company, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus disclose have occurred or may occur; and (iviii) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iiiii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the Mid-Tier Company, the MHC and the Bank identified in such letter.
(g) At the Closing Time, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. ParenteBeard LLC a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(h) At the Closing Time, the Securities shall have been approved for trading on the Nasdaq Capital Market upon notice of issuance.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(ji) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Exchange Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(kj) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, Massachusetts Pennsylvania or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the Mid-Tier Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the Mid-Tier Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, Statement shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, Prospectus shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the FRB, Commission or the OTS and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of Luse Gorman Pomeren▇ & ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇ Lovells US LLP▇▇▇ th▇ ▇▇▇▇any, counsel for the Mid-Tier Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on Agent as attached hereto as Exhibit A hereto.B.
(2) The favorable opinion, dated as of the Closing Time, of Bingham McCutchen, ▇▇▇▇▇▇▇ Procter LLP, counsel for the AgentAg▇▇▇, with respect to such matters ▇▇ ▇ttached hereto as the Agent may reasonably require.Exhibit C.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Luse Gorman Pomerenk & ▇▇▇▇▇▇, ▇.▇. ▇▇▇ Bingham McCu▇▇▇▇▇ Lovells US LLP and shall e▇▇▇ ▇▇▇i▇▇▇▇▇▇▇▇ Procter LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at Closing Time, or (if applicable) that the Closing General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter LLP 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, and ▇▇▇▇▇▇▇ Procter LLP may also rely on the opinion of ▇▇▇▇▇ Lovells US LLP.
(c) At the Closing Time referred to in Section 22 hereof, the Company, the Mid-Tier Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion OTS Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company Company, the Mid-Tier Company, the MHC or the Bank by the FRBOTS, or any other regulatory authority other than those which the FRB or the Division OTS permits to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the Mid-Tier Company, the MHC and the Bank, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and and/or Chief Executive Officer of the Company, of the Mid-Tier Company, of the MHC and of the Bank and the Chief Financial Officer chief financial or chief accounting officer of the Company, of the MHCMid-Tier Company, of the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the Mid-Tier Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the Mid-Tier Company, the MHC or the Bank, as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, practice (iii) neither the Company Company, the Mid-Tier Company, the MHC nor the Bank shall have received from the FRB OTS any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the Mid-Tier Company, the MHC or the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the Mid-Tier Company, the MHC and the Bank has have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission, Commission and (vii) no order suspending the Subscription and Community Offering or the Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or, to their knowledge, or threatened by the FRB OTS and no person has sought to obtain regulatory or judicial review of the action of the Division OTS in approving the Plan in accordance with the OTS Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB OTS in approving the Holding Company Conversion Application.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer and/or President of the MHC, the Mid-Tier Company, of the MHC Company and of the Bank and the Chief Financial Officer of the MHC, the Mid-Tier Company, of the MHC Company and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus fairly present the financial condition and results of operations of the MHC MHC, the Mid-Tier Company and the subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus.
(f) At the time As of the execution of this Agreementdate hereof, the Agent shall have received from ▇▇▇▇▇▇▇▇Shatswell, MacLeod & Compan▇, ▇.▇. a ▇▇▇▇▇▇ & Company, P.C., a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHCCompany, the Company Mid-Tier Company, the MHC and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the OTS Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇Sarbanes-▇▇▇▇▇ Oxley Act; (ii) it is their opinion ▇▇ ▇▇▇▇▇ ▇▇inion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇Shatswell, MacLeod & Company, ▇.▇. ▇et ▇▇▇▇▇ & Company, P.C. set forth in ▇n detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and Act, the Securities Act Regulations and the OTS Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “"Selected Consolidated Financial and Other Data” " in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-long term or short-short term debt of the MHC and the Bank or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings net worth of the MHC and the BankMHC, in each case as compared with the amounts shown in the December 31, 2009 consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from [ ]December 31, 2014 2009 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHC, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the Mid-Tier Company, the MHC and the Bank identified in such letter.
(g) At the Closing Time, the Agent shall have received from Shatswell, MacLeod & Company, ▇.▇▇▇▇. ▇ le▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(h) At the Closing Time, the Securities shall have been approved for trading quotation on the Nasdaq Capital Market upon notice of issuance.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, Massachusetts or Maryland, New York or Massachusetts authorities.
(l) A memorandum relating to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Securities under applicable state securities law (the "Blue Sky Survey") from Luse Gorman Pomerenk & Sch▇▇▇, ▇.▇. ▇▇▇▇▇▇▇g to ▇▇▇ Offering, including Agent's participation therein, shall have been furnished prior to the mailing of the Prospectus to the Company with a copy thereof addressed to Agent or upon which Luse Gorman Pomerenk & Schick, ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇ ▇he ▇▇▇▇▇ may rely.
Appears in 1 contract
Sources: Agency Agreement (Peoples Federal Bancshares, Inc.)
Conditions of Agent’s Obligations. The Company, the MHC, the Bank Merc▇▇ ▇▇▇ual and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC Company and the Bank Merc▇▇ ▇▇▇ual herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC Company and the Bank Merc▇▇ ▇▇▇ual made pursuant to the provisions hereof, to the performance by the Company, the MHC Company and the Bank Merc▇▇ ▇▇▇ual of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, Statement shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, Conversion shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the FRBDepartment, and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of Stev▇▇▇ & ▇ee, ▇▇unsel for the Company and Merc▇▇ ▇▇▇▇▇ Lovells US LLP, counsel for the Company, the MHC and the Bankual, in form and substance satisfactory to counsel for the Agent, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Pennsylvania with full corporate power and authority to own, lease and operate its properties and
(ii) An opinion to the same general effect as subsection 5(b)(1)(i) in respect of each of the Merc▇▇ Companies.
(iii) Merc▇▇ ▇▇▇ual has all requisite power and authority to carry on an insurance business pursuant to and to the extent of the certificates of authority issued under the laws of the States of Pennsylvania and New Jersey; MIC has all requisite power and authority to carry on an insurance business pursuant to and to the extent of the certificates of authority issued under the laws of the State of New Jersey; the Company and each of the Merc▇▇ ▇▇▇panies has obtained all licenses, permits and other governmental authorizations currently required for the conduct of their respective businesses.
(iv) The Securities have been duly and validly authorized for issuance and sale and, when issued and delivered by the Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be duly and validly issued and fully paid and non-assessable; and all corporate actions required to be taken for the authorization, issue and sale of the Securities have been validly and sufficiently taken.
(v) The issuance of the Securities is not subject to preemptive or other similar rights arising by operation of law or, to the best of their knowledge and information, otherwise.
(vi) Upon consummation of the Conversion, the authorized, issued and outstanding capital stock of the Company will be as set forth in the Prospectus under "Capitalization" and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Time.
(vii) All of the issued and outstanding capital stock of each of QHC and MIC has been duly authorized and validly issued and, to such counsel's best knowledge, is fully paid and non-assessable and is owned by Merc▇▇ ▇▇▇ual, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity.
(viii) Upon consummation of the Conversion, all of the issued and outstanding capital stock of Merc▇▇ ▇▇▇ual when issued and delivered pursuant to the Plan against payment of consideration as set forth in the Plan and set forth in the -18- 19 Prospectus, will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity.
(ix) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, including without limitation the Conversion, have been duly and validly authorized by all necessary action on Exhibit A heretothe part of each of the Company and Merc▇▇ Mutual, and this Agreement constitutes the legal, valid and binding agreement of each of the Company and Merc▇▇ ▇▇▇ual, enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws and the availability of equitable remedies); the execution and delivery of this Agreement, the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein, including without limitation the Conversion, will not result in any violation of the provisions of the charter or by-laws of the Company or any of the Merc▇▇ ▇▇▇panies; and, to the best of such counsel's knowledge, the execution and delivery of this Agreement, the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein, including without limitation the Conversion, will not conflict with or constitute a breach of, or default under, and no event has occurred which, with notice or lapse of time or both, would constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance, that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business affairs of the Company and the Merc▇▇ ▇▇▇panies considered as one enterprise, upon any property or assets of the Company or any of the Merc▇▇ Companies pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or any of the Merc▇▇ ▇▇▇panies is a party or by which any of them may be bound, or to which any of the property or assets of the Company or any of the Merc▇▇ ▇▇▇panies is subject.
(x) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act or, to the best of such counsel's knowledge, proceedings therefor initiated or threatened by the Commission.
(xi) 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, the issuance of the Securities and the consummation of the Conversion, except as may be required under the securities or Blue Sky laws of various jurisdictions as to which no opinion need be rendered.
(xii) At the time the Registration Statement became effective, the Registration Statement (other than the financial statements and statistical data included therein, as to which no opinion need be rendered) complied as to form in all -19- 20 material respects with the requirements of the Securities Act and the Securities Act Regulations and the Conversion Act.
(xiii) The Common Stock conforms to the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xiv) To the best of such counsel's knowledge, there are no legal or governmental proceedings pending or threatened against or affecting the Company or any of the Merc▇▇ ▇▇▇panies which are required, individually or in the aggregate, to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein, and all pending legal or governmental proceedings to which the Company or any of the Merc▇▇ ▇▇▇panies is a party or to which any of their property is subject which are not described in the Registration Statement, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material.
(xv) The information in the Prospectus under "Business-- Regulation," "The Conversion--Effect of Conversion on Policyholders," "The Conversion--Tax Effects," "Certain Restrictions on Acquisition of the Company" and "Description of Capital Stock," to the extent that it constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by them and is complete and accurate in all material respects.
(xvi) To the best of such counsel's knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Registration Statement or to be filed as exhibits thereto other than those described or referred to therein or filed as exhibits thereto, the descriptions thereof or references thereto are correct, and no default exists, and no event has occurred which, with notice or lapse of time or both, would constitute a default, in the due performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument so described, referred to or filed.
(xvii) The Conversion Application complies with the applicable requirements of the Conversion Act, includes all documents required to be filed as exhibits thereto, and is, to the best of such counsel's knowledge and information, truthful, accurate and complete. The Plan has been duly authorized by all necessary actions, and all necessary consents thereto and approvals thereof have been obtained and the Conversion has been consummated; Merc▇▇ ▇▇▇ual's charter has been amended to authorize the issuance of permanent capital stock; to the best of such counsel's knowledge, the Company and Merc▇▇ ▇▇▇ual have conducted the Conversion in all material respects in accordance with applicable requirements of the Conversion Act, the Plan and all other applicable regulations, decisions and orders thereunder, including all material applicable terms, conditions, requirements and
(xviii) Neither the Company nor any of the Merc▇▇ Companies is in violation of its charter (and Merc▇▇ ▇▇▇ual will not be in violation of its charter upon consummation of the Conversion) or, to the best of such counsel's knowledge, in default (nor has any event occurred which, with notice or lapse of time or both, would constitute a default) in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or any of the Merc▇▇ ▇▇▇panies is a party or by which the Company or any of the Merc▇▇ ▇▇▇panies or any of their property may be bound.
(xix) The Company is not required to be registered as an investment company under the Investment Company Act of 1940.
(2) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇ Procter LLPLord, Bissell & Brook, counsel for the Agent, with respect to such matters as the Agent may reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇Stev▇▇▇ Lovells US LLP and & ▇▇▇▇ee ▇▇▇ Procter LLP Lord, Bissell & Brook shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇Stev▇▇▇ Lovells US LLP and & ▇▇▇▇ee ▇▇▇ Procter LLP Lord, Bissell & Brook may rely as to matters of fact on certificates of officers and directors of the Company, the MHC Company and the Bank Merc▇▇ ▇▇▇ual and certificates of public officials, which opinions shall be in form and ▇▇▇▇▇▇▇ Procter LLP substance satisfactory to counsel for the Agent, and Lord, Bissell & Brook may also rely on the opinion of Stev▇▇▇ & ▇ee ▇▇▇▇▇ Lovells US LLParding matters of Pennsylvania law.
(c) At the Closing Time referred to in Section 2, the Company, Plan shall have been approved by the MHC policyholders of Merc▇▇ ▇▇▇ual and the Bank Merc▇▇ Mutual shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations Act and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company or the Bank by the FRB, or any other regulatory authority other than those which the FRB or the Division permits to be completed after the Conversion.upon
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, operations or business affairs or prospects of the Company, the MHC Company and the Bank, Merc▇▇ ▇▇▇panies considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practicebusiness, and the Agent shall have received a certificate of the President and Chief Executive Officer of the CompanyCompany and of Merc▇▇ ▇▇▇ual, the President of the MHC Company and Merc▇▇ ▇▇▇ual and the chief financial or chief accounting officer of the Company and of the Bank and the Chief Financial Officer of the Company, of the MHC, and of the BankMerc▇▇ ▇▇▇ual, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the MHC Company or the Bank Merc▇▇ ▇▇▇ual from the latest date as of which the financial condition of the Company, the MHC Company or the Bank, Merc▇▇ ▇▇▇ual as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course cause of business consistent with past practicebusiness, (iii) neither the Company nor the Bank Merc▇▇ ▇▇▇ual shall have received from the FRB Department any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, condition or results of operations or prospects of the Company, the MHC Company or the BankMerc▇▇ ▇▇▇ual, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC Company and the Bank has Merc▇▇ ▇▇▇ual have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission, Commission and (vii) no order suspending any of the Subscription and Community Offering or the Syndicated Community Offering Offerings or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or, to their knowledge, or threatened by the FRB Department and no person has sought to obtain regulatory or judicial review of the action of the Division Department in approving the Plan nor has any person sought to obtain regulatory or judicial review of in accordance with the action of the FRB in approving the Holding Company ApplicationConversion Act.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, fairly present the financial condition and results of operations of the MHC and the subsidiaries as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus.
(f) At the time of the execution of this Agreement, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C., KPMG Peat Marwick LLP a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: that (i) they are independent public accountants with respect to the MHC, the Company and the Bank Merc▇▇ ▇▇▇panies within the meaning of the Code of Ethics of the American Institute of Certified Public Accountants, the Securities Act and the Securities Act Regulations, they are registered with Regulations and the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Conversion Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. KPMG Peat Marwick set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC and the Bank or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings of the MHC and the Bank, in each case as compared with the amounts shown in the consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from [ ], 2014 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHC, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the MHC and the Bank identified in such letter.
(g) At the Closing Time, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five days prior to the Closing Time.
(h) At the Closing Time, the Securities shall have been approved for trading on the Nasdaq Capital Market upon notice of issuance.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by Federal, Massachusetts or New York authorities.s
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the Mid-Tier Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the Mid-Tier Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, Statement shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, Prospectus shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the FRB, Commission or the OTS and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇ ▇▇▇▇▇▇ Lovells US LLP▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., counsel for the Company, the Mid-Tier Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on Agent as attached hereto as Exhibit A hereto.B.
(2) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇ Procter LLP▇▇▇▇▇▇▇▇▇, counsel for the Agent, with respect to such matters as the Agent may reasonably require.attached hereto as Exhibit C.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇▇▇ ▇▇▇▇▇▇ Lovells US LLP ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. and ▇▇▇▇▇▇▇ Procter ▇▇▇▇▇▇▇▇▇ LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at Closing Time, or (if applicable) that the Closing General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter LLP 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, and ▇▇▇▇▇▇▇ Procter LLP may also rely on the opinion of ▇▇▇▇▇ Lovells US LLP.
(c) At the Closing Time referred to in Section 22 hereof, the Company, the Mid-Tier Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion OTS Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company Company, the Mid-Tier Company, the MHC or the Bank by the FRBOTS, or any other regulatory authority other than those which the FRB or the Division OTS permits to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the Mid-Tier Company, the MHC and the Bank, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the Mid-Tier Company, of the MHC and of the Bank and the Chief Financial Officer chief financial or chief accounting officer of the Company, of the MHCMid-Tier Company, of the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the Mid-Tier Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the Mid-Tier Company, the MHC or the Bank, as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, practice (iii) neither the Company Company, the Mid-Tier Company, the MHC nor the Bank shall have received from the FRB OTS any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the Mid-Tier Company, the MHC or the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the Mid-Tier Company, the MHC and the Bank has have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission, Commission and (vii) no order suspending the Subscription and Community Offering or the Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or, to their knowledge, or threatened by the FRB OTS and no person has sought to obtain regulatory or judicial review of the action of the Division OTS in approving the Plan in accordance with the OTS Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB OTS in approving the Holding Company Conversion Application.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer and President of the MHC, the Mid-Tier Company, of the MHC Company and of the Bank and the Chief Financial Officer of the MHC, the Mid-Tier Company, of the MHC Company and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus fairly present the financial condition and results of operations of the MHC MHC, the Mid-Tier Company and the subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus.
(f) At the time As of the execution of this Agreementdate hereof, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C., P.C. a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHCCompany, the Company Mid-Tier Company, the MHC and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the OTS Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and Act, the Securities Act Regulations and the OTS Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-long term or short-short term debt of the MHC and the Bank or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings net worth of the MHC and the BankMHC, in each case as compared with the amounts shown in the December 31, 2009 consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from [ ]December 31, 2014 2009 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHC, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the Mid-Tier Company, the MHC and the Bank identified in such letter.
(g) At the Closing Time, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(h) At the Closing Time, the Securities shall have been approved for trading quotation on the Nasdaq Capital Market upon notice of issuance.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, Massachusetts or Maryland, New York or Massachusetts authorities.
(l) A memorandum relating to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Securities under applicable state securities law (the “Blue Sky Survey”) from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. shall state the Agent may rely.
Appears in 1 contract
Sources: Agency Agreement (Peoples Federal Bancshares, Inc.)
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, Statement shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, Prospectus shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the FRBCommission or the OTS, and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable written opinion, dated as of the Closing Time, of M▇▇▇▇▇▇ Lovells US M▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & A▇▇▇▇▇▇ LLP, counsel for the Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, as to the matters set forth on Exhibit A hereto.
(2) The favorable written opinion, dated as of the Closing Time, of ▇M▇▇▇▇▇▇ Procter LLPSpidi & F▇▇▇▇, PC, counsel for the Agent, with respect to such the matters as the Agent may reasonably requireset forth on Exhibit B hereto.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, M▇▇▇▇▇▇ Lovells US LLP and M▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Procter & A▇▇▇▇▇▇ LLP and M▇▇▇▇▇▇ Spidi & F▇▇▇▇, PC shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter LLP 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, and ▇▇▇▇▇▇▇ Procter LLP may also rely on the opinion of ▇▇▇▇▇ Lovells US LLP.
(c) At the Closing Time referred to in Section 2, the Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion Offerings in accordance with the Plan, the applicable Conversion OTS Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Offerings imposed upon the Company Company, the MHC or the Bank by the FRBOTS, or any other regulatory authority other than those which the FRB or the Division OTS permits to be completed after the ConversionOfferings.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC MHC, the Bank and the BankSubsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC and of the Bank and the Chief Financial Officer chief financial or chief accounting officer of the Company, of the MHC, MHC and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the MHC or the Bank, as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, practice (iii) neither the Company Company, the MHC nor the Bank shall have received from the FRB OTS any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC or the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC and the Bank has have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission, and (vii) no order suspending the Subscription and Community Offering or the Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or, to their knowledge, or threatened by the FRB OTS and no person has sought to obtain regulatory or judicial review of the action of the Division OTS in approving the Plan in accordance with the OTS Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB OTS in approving the Holding Company ApplicationPlan.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer and President of the Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus fairly present the financial condition and results of operations of the MHC Bank and the subsidiaries Subsidiaries as of and for the dates and periods covered by the Registration Statement and the General Disclosure PackageProspectus; (iv) they are responsible for establishing and maintaining internal controls; (v) they have designed such internal controls to ensure that material information relating to the Company, including the ProspectusMHC, the Bank and the Subsidiaries is made known to them; (vi) they have evaluated the effectiveness of their internal controls; and (vii) they have disclosed to B▇▇▇▇ M▇▇▇▇▇ Company LLP and the audit committee (A) all significant deficiencies in the design or operation of internal controls which could adversely affect the Company’s, the MHC’s and the Bank’s ability to record, process, summarize, and report financial data, and have identified for the Company’s, the MHC’s and the Bank’s auditors any material weaknesses in internal controls and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s, the MHC’s and the Bank’s internal controls.
(f) At the time of the execution of this Agreement, the Agent shall have received from B▇▇▇▇▇▇▇▇▇, ▇▇▇ M▇▇▇▇▇ & Company, P.C., Company LLP a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the Company, the MHC, the Company Bank and the Bank Subsidiaries within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the OTS Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇S▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and B▇▇▇▇▇▇▇▇▇, ▇▇▇ M▇▇▇▇▇ & Company, P.C. Company LLP set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC Company included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and Act, the Securities Act Regulations and the OTS Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC and the Bank Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings net worth of the MHC and the BankCompany, in each case as compared with the amounts shown in the consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from [ ]December 31, 2014 2003 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCCompany, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the MHC and the Bank identified in such letter.
(g) At the Closing Time, the Agent shall have received from B▇▇▇▇▇▇▇▇▇, ▇▇▇ M▇▇▇▇▇ & Company, P.C. Company LLP a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(h) At the Closing Time, the Securities shall have been approved for trading quotation on the Nasdaq Capital Market OTC Bulletin Board upon notice of issuance.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, Massachusetts Maryland or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the Mid-Tier Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and the issuance of the Exchange Shares and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the Mid-Tier Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, threatened by the FRB, Commission or the FRB and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇▇▇▇ Lovells US ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, the Mid-Tier Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on as attached hereto as Exhibit A hereto.A.
(2) The favorable opinion, dated as of the Closing Time, of Silver, ▇▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇ Procter LLP, counsel for the Agent, with respect as to such matters as the Agent may reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇▇▇▇▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇▇ Procter & ▇▇▇▇▇▇▇▇ LLP and Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial financial, pro forma or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial financial, pro forma or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective effective, as of the date of the Prospectus or at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇▇▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇▇ Procter & ▇▇▇▇▇▇▇▇ LLP and Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ LLP may rely as to matters of fact on certificates of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank and certificates of public officials. Silver, and ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ Procter LLP may also rely on the opinion of ▇▇▇▇▇▇▇▇▇▇ Lovells US ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP.
(c) At the Closing Time referred to in Section 22 hereof, the Company, the Mid-Tier Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion FRB Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company Company, the Mid-Tier Company, the MHC or the Bank by the FRB, FRB or any other regulatory authority other than those which the FRB or the Division any such other regulatory authority permits to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC and the Bank, considered as one enterpriseMaterial Adverse Effect, whether or not arising in the ordinary course of business consistent with past practicebusiness, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the Mid-Tier Company, the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHCMid-Tier Company, the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse changeMaterial Adverse Effect, (ii) there shall have been no material transaction entered into by the Company, the Mid-Tier Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the Mid-Tier Company, the MHC or the Bank, as set forth in the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, practice (iii) neither the Company Company, the Mid-Tier Company, the MHC nor the Bank shall have received from the FRB FRB, the OCC or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the Mid-Tier Company, the MHC or the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the Mid-Tier Company, the MHC and the Bank has have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company, the Mid-Tier Company, the MHC or the Bank, threatened by the Commission, and (vii) no order suspending the Subscription and Community Offering FRB’s approval of the Conversion Application, the Holding Company Application or the Syndicated Community Offering or the authorization for final use of the Prospectus transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to their knowledgethe knowledge of the Company, the Mid-Tier Company, the MHC or the Bank, threatened by the FRB and no person has sought to obtain regulatory or judicial review of the action of the Division FRB in approving the Plan in accordance with the FRB Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Conversion Application or the Holding Company Application, and (viii) no order suspending the Subscription and Community Offering or the Syndicated Offering or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the FRB.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of the Mid-Tier Company, of the MHC Company and of the Bank and the Chief Financial Officer of the Mid-Tier Company, of the MHC Company and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package fairly present the financial condition and results of operations of the MHC Mid-Tier Company and the subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the General Disclosure PackageProspectus; (iv) they are responsible for establishing and maintaining disclosure controls and procedures; (v) they have designed such disclosure controls and procedures to ensure that material information relating to the Company’s, including the ProspectusMid-Tier Company and the Bank is made known to them; (vi) they have evaluated the effectiveness of their disclosure controls and procedures; and (vii) they have disclosed to RSM US LLP and the audit committee (A) all significant deficiencies in the design or operation of disclosure controls and procedures which are reasonably likely to adversely affect the Mid-Tier Company’s and the Bank’s ability to record, process, summarize, and report financial data, and have identified for the Company’s, the Mid-Tier Company’s and the Bank’s independent registered public accounting firm any material weaknesses in disclosure controls and procedures and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s, the Mid-Tier Company’s and the Bank’s disclosure controls and procedures.
(f) At the time As of the execution of this Agreementdate hereof, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C., RSM US LLP a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHCCompany, the Company Mid-Tier Company, the MHC and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the FRB Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. RSM US LLP set forth in detail in such letterletters, nothing has come to their attention which causes them to believe that that, except as set forth in such letters, (A) the unaudited consolidated financial statements and supporting schedules of the MHC Mid-Tier Company included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and Act, the Securities Act Regulations and the FRB Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” or under “Recent Developments” in the Registration Statement Prospectus and Prospectus the General Disclosure Package do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited consolidated financial statements included in the Registration Statement, the Prospectus and the General Disclosure Package, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC and the Bank Mid-Tier Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings stockholders’ equity of the MHC and the BankMid-Tier Company, in each case as compared with the amounts shown in the March 31, 2016 unaudited consolidated statements of financial conditions included condition presented under the “Recent Developments” caption in the Registration Statement or, (D) during the period from [ ]March 31, 2014 2016 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCCompany’s Mid-Tier Company, except in all instances for increases or decreases which the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement Statement, Prospectus and the General Disclosure Package, including the Prospectus Package and which that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the Company’s Mid-Tier Company, the MHC and the Bank identified in such letter.
(g) The “lock-up” agreements, each substantially in the form of Exhibit B hereto, between the Agent and the persons set forth on Exhibit C hereto, relating to sales and certain other dispositions of shares of Common Stock, Mid-Tier Company Common Stock or certain other securities, shall be delivered to the Agent on or before the date hereof and shall be in full force and effect on the Closing Time.
(h) At the Closing Time, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. RSM US LLP a letter, letter dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter letters furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(hi) At the Closing Time, all notices required to be filed to permit the Securities shall have been approved for trading and the Exchange Shares to be listed on the Nasdaq Capital Market upon notice of issuanceshall have been timely filed.
(ij) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(jk) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Exchange Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(kl) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either any of the NYSE MKT, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either any of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, Massachusetts Maryland or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the Mid-Tier Company, the MHC, the Bank and the Agent Agents agree that the issuance and the sale of Securities and the issuance of the Exchange Shares and all obligations of the Agent Agents hereunder are subject to the accuracy of the representations and warranties of the Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the Mid-Tier Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the FRB, Commission or the Federal Reserve Board and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent Agents shall have received:
(1) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇ ▇▇▇▇▇▇ Lovells US LLP▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., counsel for the Company, the Mid-Tier Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on Agents as attached hereto as Exhibit A hereto.C.
(2) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇▇▇▇ Procter ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the AgentAgents, with respect as to such matters as the Agent may Agents shall reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇▇▇ ▇▇▇▇▇▇ Lovells US LLP ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. and ▇▇▇▇▇▇▇▇▇▇ Procter ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at Closing Time, or (if applicable) that the Closing General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇ ▇▇▇▇▇▇ Lovells US LLP ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. and ▇▇▇▇▇▇▇▇▇▇ Procter ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely as to matters of fact on certificates of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank and certificates of public officials, and . ▇▇▇▇▇▇▇▇▇▇ Procter ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may also rely on the opinion of ▇▇▇▇ ▇▇▇▇▇▇ Lovells US LLP.▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C.
(c) At the Closing Time referred to in Section 22 hereof, the Company, the Mid-Tier Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion FRB Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company Company, the Mid-Tier Company, the MHC or the Bank by the FRBFederal Reserve Board, or any other regulatory authority other than those which the FRB or the Division Federal Reserve Board permits to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC and the Bank, considered as one enterpriseMaterial Adverse Effect, whether or not arising in the ordinary course of business consistent with past practice, and the Agent Agents shall have received a certificate of the President and Chief Executive Officer of the Company, of the Mid-Tier Company, of the MHC and of the Bank and the Executive Vice President, Chief Operating and Chief Financial Officer of the Company, of the MHCMid-Tier Company, of the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the Mid-Tier Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the Mid-Tier Company, the MHC or the Bank, as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, practice (iii) neither the Company Company, the Mid-Tier Company, the MHC nor the Bank shall have received from the FRB Federal Reserve Board, the OCC or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the AgentAgents) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the Mid-Tier Company, the MHC or the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the Mid-Tier Company, the MHC and the Bank has have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission, Commission and (vii) no order suspending the Subscription and Community Offering Federal Reserve Board’s approval of the Conversion Application, or the Syndicated Community Offering or the authorization for final use of the Prospectus transactions contemplated thereby, has been issued and no proceedings for that purpose have been initiated or, to their knowledge, or threatened by the FRB Federal Reserve Board and no person has sought to obtain regulatory or judicial review of the action of the Division Federal Reserve Board in approving the Plan in accordance with the FRB Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB Federal Reserve Board in approving the Holding Company Conversion Application.
(e) At the Closing Time, the Agent Agents shall have received a certificate of the President and Chief Executive Officer of the Mid-Tier Company, of the MHC Company and of the Bank and the Executive Vice President and Chief Financial Officer of the Mid-Tier Company, of the MHC Company and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus fairly present the financial condition and results of operations of the MHC Mid-Tier Company and the subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus.
(f) At the time As of the execution of this Agreementdate hereof, the Agent Agents shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C., KPMG LLP a letter dated such date, in form and substance satisfactory to the AgentAgents, to the effect that: (i) they are independent public accountants with respect to the MHCCompany, the Company Mid-Tier Company, the MHC and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the FRB Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent Agents and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. KPMG LLP set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC Mid-Tier Company included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and Act, the Securities Act Regulations and the FRB Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” or under “Recent Developments” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-long term or short-short term debt of the MHC and the Bank Mid-Tier Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings net worth of the MHC and the BankMid-Tier Company, in each case as compared with the amounts shown in the June 30, 2012 consolidated statements of financial conditions balance sheets included in the Registration Statement or, (D) during the period from [ ]June 30, 2014 2012 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCMid-Tier Company, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which that are specified by the AgentAgents, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the Mid-Tier Company, the MHC and the Bank identified in such letter.
(g) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between the Agents and the persons set forth on Exhibit E hereto, relating to sales and certain other dispositions of shares of Common Stock, Mid-Tier Company Common Stock or certain other securities, shall be delivered to the Agents on or before the date hereof and shall be in full force and effect on the Closing Time.
(h) At the Closing Time, the Agent Agents shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. KPMG LLP a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(hi) At the Closing Time, the Securities and Exchange Shares shall have been approved for trading quotation on the Nasdaq Capital Global Select Market upon notice of issuance.
(ij) At the Closing Time, the Agent Agents shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisalAppraisal.
(jk) At the Closing Time, counsel for the Agent Agents shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Exchange Shares as herein contemplated shall be satisfactory in form and substance to the Agent Agents and counsel for the AgentAgents.
(kl) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the AgentAgents, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, Massachusetts New Jersey or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the Mid-Tier Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and the issuance of the Exchange Shares, the contribution to the Foundation, and all obligations of the Agent Agents hereunder are subject to the accuracy of the representations and warranties of the Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the Mid-Tier Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, Statement shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings Offerings, the contribution to the Foundation or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, Prospectus shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the FRB, Commission or the OTS and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent Agents shall have received:
(1) The favorable opinion, dated as of the Closing Time, of Silver, ▇▇▇▇▇▇▇▇ Lovells US LLP& Taff, L.L.P, counsel for the Company, the Mid-Tier Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on Agents as attached hereto as Exhibit A hereto.A.
(2) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇▇▇▇ Procter ▇▇▇▇▇▇▇▇ LLP, counsel for the AgentAgents, with respect as to such matters as the Agent may Agents shall reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Silver, ▇▇▇▇▇▇▇▇ Lovells US LLP & Taff, L.L.P. and ▇▇▇▇▇▇▇▇▇▇ Procter ▇▇▇▇▇▇▇▇ LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at Closing Time, or (if applicable) that the Closing General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter LLP 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, and ▇▇▇▇▇▇▇ Procter LLP may also rely on the opinion of ▇▇▇▇▇ Lovells US LLP.
(c) At the Closing Time referred to in Section 22 hereof, the Company, the Mid-Tier Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion OTS Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company Company, the Mid-Tier Company, the MHC or the Bank by the FRBOTS, or any other regulatory authority other than those which the FRB or the Division OTS permits to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the Mid-Tier Company, the MHC and the Bank, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent Agents shall have received a certificate of the President and Chief Executive Officer of the Company, of the Mid-Tier Company, of the MHC and of the Bank and the Executive Vice President and Chief Financial Officer of the Company, of the MHCMid-Tier Company, of the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the Mid-Tier Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the Mid-Tier Company, the MHC or the Bank, as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, practice (iii) neither the Company Company, the Mid-Tier Company, the MHC nor the Bank shall have received from the FRB OTS any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the AgentAgents) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the Mid-Tier Company, the MHC or the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the Mid-Tier Company, the MHC and the Bank has have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission, Commission and (vii) no order suspending the Subscription and Community Offering or Syndicated Offering, the Syndicated Community Offering contribution to the Foundation, or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or, to their knowledge, or threatened by the FRB OTS and no person has sought to obtain regulatory or judicial review of the action of the Division OTS in approving the Plan in accordance with the OTS Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB OTS in approving the Holding Company Conversion Application.
(e) At the Closing Time, the Agent Agents shall have received a certificate of the President and Chief Executive Officer of the Mid-Tier Company, of the MHC Company and of the Bank and the Executive Vice President and Chief Financial Officer of the Mid-Tier Company, of the MHC Company and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus fairly present the financial condition and results of operations of the MHC Mid-Tier Company and the subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus.
(f) At the time As of the execution of this Agreementdate hereof, the Agent Agents shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Deloitte & Company, P.C., Touche LLP a letter dated such date, in form and substance satisfactory to the AgentAgents, to the effect that: (i) for the three-year period ended September 30, 2009 and the six month period ended March 31, 2010, they are were the independent public accountants with respect to the MHCCompany, the Company Mid-Tier Company, the MHC and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the OTS Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements for the three-year period ended September 30, 2009 and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent Agents and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Deloitte & Company, P.C. Touche LLP set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and 28 supporting schedules of the MHC Mid-Tier Company included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and Act, the Securities Act Regulations and the OTS Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-long term or short-short term debt of the MHC and the Bank Mid-Tier Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings net worth of the MHC and the BankMid-Tier Company, in each case as compared with the amounts shown in the March 31, 2010 consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from [ ]March 31, 2014 2010 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCMid-Tier Company, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which that are specified by the AgentAgents, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the Mid-Tier Company, the MHC and the Bank identified in such letter.
(g) The “lock-up” agreements, each substantially in the form of Exhibit C hereto, between the Agents and the persons set forth on Exhibit D hereto, relating to sales and certain other dispositions of shares of Common Stock, Mid-Tier Company Common Stock or certain other securities, shall be delivered to the Agents on or before the date hereof and shall be in full force and effect on the Closing Time.
(h) At the Closing Time, the Agent Agents shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Deloitte & Company, P.C. Touche LLP a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(hi) At the Closing Time, the Securities and Exchange Shares shall have been approved for trading quotation on the Nasdaq Capital Global Select Market upon notice of issuance.
(ij) At the Closing Time, the Agent Agents shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisalAppraisal.
(jk) At the Closing Time, counsel for the Agent Agents shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and Exchange Shares and the contribution to the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent Agents and counsel for the AgentAgents.
(kl) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the AgentAgents, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, Massachusetts Maryland or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, Company the MHC and the Bank of their obligations hereunder, and to the following further conditions:
21 22 (a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, Statement shall have been issued under the Securities 1933 Act or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, Prospectus shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the FRB, Superintendent or the FDIC and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of ▇▇Elias, Matz, Tier▇▇▇ Lovells US LLP& ▇err▇▇▇ ▇.▇.P., counsel for the Company, the MHC Company and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on Exhibit A heretoto the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware.
(2ii) The favorable opinionCompany has full corporate power and authority to own, dated lease and operate its properties and to conduct its business as of the Closing Time, of ▇▇▇▇▇▇▇ Procter LLP, counsel for the Agent, with respect to such matters as the Agent may reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter LLP 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, and ▇▇▇▇▇▇▇ Procter LLP may also rely on the opinion of ▇▇▇▇▇ Lovells US LLP.
(c) At the Closing Time referred to in Section 2, the Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company or the Bank by the FRB, or any other regulatory authority other than those which the FRB or the Division permits to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given described in the Registration Statement and Prospectus and to enter into and perform its obligations under this Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact business and is in good standing in the General Disclosure PackageState of New York, including and in each other jurisdiction in which such qualification is required whether by reason of the Prospectusownership or leasing of property or the conduct of business, any except where the failure to be so qualified would not have a material adverse change in effect upon the financial condition, results of operations, operation or business affairs or prospects of the Company, the MHC and the Bank, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC and of the Bank and the Chief Financial Officer Subsidiaries, taken as a whole.
(iv) Upon consummation of the CompanyConversion, and issuance of the MHCFoundation Shares to the Foundation immediately upon completion thereof, the authorized, issued and outstanding capital stock of the Bank, dated as of Company will be within the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the MHC or the Bank, as range set forth in the Registration Statement Prospectus under "Capitalization" and the General Disclosure Package, including the Prospectus, other than transactions referred to or contemplated therein and transactions in the ordinary course no shares of business consistent with past practice, (iii) neither the Company nor the Bank shall have received from the FRB any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall Common Stock have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC or the Bank, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC and the Bank has complied with all agreements and satisfied all conditions on their part to will be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission, and (vii) no order suspending the Subscription and Community Offering or the Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or, to their knowledge, threatened by the FRB and no person has sought to obtain regulatory or judicial review of the action of the Division in approving the Plan nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Holding Company Application.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, fairly present the financial condition and results of operations of the MHC and the subsidiaries as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus.
(f) At the time of the execution of this Agreement, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C., a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHC, the Company and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public Accountants, the Securities Act and the Securities Act Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC and the Bank or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings of the MHC and the Bank, in each case as compared with the amounts shown in the consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from [ ], 2014 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHC, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the MHC and the Bank identified in such letter.
(g) At the Closing Time, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five days remain outstanding prior to the Closing Time.
(hv) At the Closing Time, the Securities shall have been approved for trading on the Nasdaq Capital Market upon notice of issuance.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the The Securities and the Foundation Shares as herein contemplated have been duly and related proceedingsvalidly authorized for issuance and sale and, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; when issued and all proceedings taken delivered by the Company in connection with pursuant to the issuance and sale Plan against payment of the Securities and consideration calculated as set forth in the Foundation Shares as herein contemplated shall be satisfactory in form and substance Plan, or contributed by the Company pursuant to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change Plan in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment case of the Agent, is so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by Federal, Massachusetts or New York authorities.Foundation
Appears in 1 contract
Sources: Agency Agreement (Independence Community Bank Corp)
Conditions of Agent’s Obligations. The Company, the Mid-Tier Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and the issuance of the Exchange Shares and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the Mid-Tier Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the Commission, ; no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the FRB, Commission or the Federal Reserve Board and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of K▇▇▇▇▇▇▇▇▇ Lovells US T▇▇▇▇▇▇▇ & S▇▇▇▇▇▇▇ LLP, counsel for the Company, the Mid-Tier Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on Agent as attached hereto as Exhibit A hereto.A.
(2) The favorable opinion, dated as of the Closing Time, of L▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Procter LLP& S▇▇▇▇▇, P.C., counsel for the Agent, with respect to such matters as the Agent may reasonably require.attached hereto as Exhibit B.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, K▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter T▇▇▇▇▇▇▇ & S▇▇▇▇▇▇▇ LLP and L▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & S▇▇▇▇▇, P.C. shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at Closing Time, or (if applicable) that the Closing General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter LLP 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, and ▇▇▇▇▇▇▇ Procter LLP may also rely on the opinion of ▇▇▇▇▇ Lovells US LLP.
(c) At the Closing Time referred to in Section 22 hereof, the Company, the Mid-Tier Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Federal Reserve Board Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company Company, the Mid-Tier Company, the MHC or the Bank by the FRBFederal Reserve Board, or any other regulatory authority other than those which the FRB or the Division Federal Reserve Board permits to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the Mid-Tier Company, the MHC and the Bank, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the Mid-Tier Company, of the MHC and of the Bank and the Chief Financial Officer chief financial or chief accounting officer of the Company, of the MHCMid-Tier Company, of the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the Mid-Tier Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the Mid-Tier Company, the MHC or the Bank, as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, practice (iii) neither the Company Company, the Mid-Tier Company, the MHC nor the Bank shall have received from the FRB Federal Reserve Board, the OCC or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the Mid-Tier Company, the MHC or the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the Mid-Tier Company, the MHC and the Bank has have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission, Commission and (vii) no order suspending the Subscription and Community Offering Federal Reserve Board’s approval of the Conversion Application, or the Syndicated Community Offering or the authorization for final use of the Prospectus transactions contemplated thereby, has been issued and no proceedings for that purpose have been initiated or, to their knowledge, or threatened by the FRB Federal Reserve Board and no person has sought to obtain regulatory or judicial review of the action of the Division Federal Reserve Board in approving the Plan in accordance with the Federal Reserve Board Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB Federal Reserve Board in approving the Holding Company Conversion Application.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer and President of the Mid-Tier Company, of the MHC Company and of the Bank and the Chief Financial Officer of the Mid-Tier Company, of the MHC Company and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus fairly present the financial condition and results of operations of the MHC Mid-Tier Company and the subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus.
(f) At the time As of the execution of this Agreementdate hereof, the Agent shall have received from ▇S.R. S▇▇▇▇▇▇▇▇, ▇.▇▇▇▇▇▇ & Company, P.C., . a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHCCompany, the Company Mid-Tier Company, the MHC and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the Federal Reserve Board Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇S▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇S.R. S▇▇▇▇▇▇▇▇, ▇.▇▇▇▇▇▇ & Company, P.C. . set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC Mid-Tier Company included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and Act, the Securities Act Regulations and the Federal Reserve Board Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” or under “Recent Developments” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-long term or short-short term debt of the MHC and the Bank Mid-Tier Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings net worth of the MHC and the BankMid-Tier Company, in each case as compared with the amounts shown in the March 31, 2012 consolidated statements of financial conditions balance sheets included in the Registration Statement or, (D) during the period from [ ]March 31, 2014 2012 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCMid-Tier Company, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the Mid-Tier Company, the MHC and the Bank identified in such letter.
(g) At the Closing Time, the Agent shall have received from ▇S.R. S▇▇▇▇▇▇▇▇, ▇.▇▇▇▇▇▇ & Company, P.C. . a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(h) At the Closing Time, the Securities and Exchange Shares shall have been approved for trading quotation on the Nasdaq Capital Market OTC Bulletin Board upon notice of issuance.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Exchange Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, Massachusetts Pennsylvania or New York authorities.
(l) The “lock-up” agreements, each substantially in the form of Exhibit C hereto, between the Agent and the persons set forth on Exhibit D hereto, relating to sales and certain other dispositions of shares of Common Stock or certain other securities, shall be delivered to the Agent on or before the date hereof and shall be in full force and effect at the Closing Time.
Appears in 1 contract
Sources: Agency Agreement (Polonia Bancorp)
Conditions of Agent’s Obligations. The CompanyMHC, the MHCCompany, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the CompanyMHC, the MHC Company and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors trustees of the Company, Bank and the MHC and the Bank officers and directors of the Company made pursuant to the provisions hereof, to the performance by the CompanyMHC, the MHC Company and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, threatened by the FRBCommission, or the FRB and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of L▇▇▇ ▇▇▇▇▇ Lovells US LLP▇▇, PC, counsel for the CompanyMHC, the MHC Company and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on as attached hereto as Exhibit A hereto.B.
(2) The favorable opinion, dated as of the Closing Time, of Silver, F▇▇▇▇▇▇▇, T▇▇▇ Procter & T▇▇▇▇▇▇ LLP, counsel for the Agent, with respect as to such matters as the Agent may reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇L▇▇▇ Lovells US LLP and ▇▇▇▇▇▇, PC and Silver, F▇▇▇▇▇▇▇, T▇▇▇ Procter & T▇▇▇▇▇▇ LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial financial, pro forma, appraisal or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial financial, pro forma, appraisal or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective effective, as of the date of the Prospectus or at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇L▇▇▇ Lovells US LLP and ▇▇▇▇▇▇, PC and Silver, F▇▇▇▇▇▇▇, T▇▇▇ Procter & T▇▇▇▇▇▇ LLP may rely as to matters of fact on certificates of officers officers, trustees and directors directors, as applicable, of the CompanyMHC, the MHC Company and the Bank and certificates of public officials. Silver, and F▇▇▇▇▇▇▇, Taff & T▇▇▇▇▇▇ Procter LLP may also rely on the opinion of L▇▇▇ ▇▇▇▇▇ Lovells US LLP▇▇, PC.
(c) At the Closing Time referred to in Section 22 hereof, the Company, the MHC Bank and the Bank MHC shall have completed in all material respects the conditions precedent to the Conversion Reorganization in accordance with the Plan, the applicable provisions of New York Conversion Regulations Law, the Conversion Regulations, FRB Regulations, Banking Law and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Reorganization imposed upon the Company Company, the MHC or the Bank by the FRB, the NYSDFS, the FDIC or any other regulatory authority other than those which the FRB FRB, the FDIC, the NYSDFS or the Division permits any such other regulatory authority permit to be completed after the ConversionOfferings.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC and the Bank, considered as one enterpriseMaterial Adverse Effect, whether or not arising in the ordinary course of business consistent with past practicebusiness, and the Agent shall have received a certificate of the President and Chief Executive Officer of the CompanyMHC, of the MHC Company and of the Bank and the Chief Financial Officer of the Company, of the MHC, the Company and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse changeMaterial Adverse Effect, (ii) there shall have been no material transaction entered into by the CompanyMHC, the MHC Company or the Bank from the latest date as of which the financial condition of the Company, the MHC Company or the Bank, as set forth in the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither none of the Company nor Company, the MHC or the Bank shall have received from the FRB FRB, the NYSDFS or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which would materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC or and the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC and the Bank has have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company, the MHC or the Bank, threatened by the Commission, and (vii) no order suspending the Subscription and Community Offering FRB’s and/or the NYSDFS’ approvals of the Holding Company Applications or the Syndicated Community Offering transactions contemplated thereby or the authorization for final use NYSDFS’ approval of the Prospectus Conversion Application or the FDIC’s non-objection to the Conversion Application or the transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to their knowledgethe knowledge of the Company, the MHC or the Bank, threatened by the FRB FRB, the NYSDFS or the FDIC and no person has sought to obtain regulatory or judicial review of the action of the Division NYSDFS in approving the Plan in accordance with the New York Conversion Law nor has any person sought to obtain regulatory or judicial review of the action of the FRB or the NYSDFS in approving the Holding Company ApplicationApplications or the NYSDFS approving or the FDIC issuing its non-objection to the Conversion Applications, and (viii) no order suspending the Subscription and Community Offering or the Syndicated Offering, if any, or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the FRB, the NYSDFS or the FDIC.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of the CompanyMHC, of the MHC Company and of the Bank and the Chief Financial Officer of the CompanyMHC, of the MHC Company and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package fairly present the financial condition and results of operations of the MHC and the subsidiaries Company as of and for the dates and periods covered by the Registration Statement and the General Disclosure PackageProspectus; (iv) they are responsible for establishing and maintaining disclosure controls and procedures; (v) they have designed such disclosure controls and procedures to ensure that material information relating to the Company, including the ProspectusMHC and the Bank is made known to them; (vi) they have evaluated the effectiveness of their disclosure controls and procedures; and (vii) they have disclosed to B▇▇▇▇▇▇ & Co., LLP and the audit committee (A) all significant deficiencies in the design or operation of disclosure controls and procedures which are reasonably likely to adversely affect the Bank’s ability to record, process, summarize, and report financial data, and have identified for the Company’s and the Bank’s independent registered public accounting firm any material weaknesses in disclosure controls and procedures and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s and the Bank’s disclosure controls and procedures.
(f) At the time As of the execution of this Agreementdate hereof, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇B▇▇▇▇▇▇ & CompanyCo., P.C., LLP a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHC, the Company and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the Conversion Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇S▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇, ▇B▇▇▇▇▇▇ & CompanyCo., P.C. LLP set forth in detail in such letterletters, nothing has come to their attention which causes them to believe that that, except as set forth in such letters, (A) the unaudited consolidated financial statements and supporting schedules of the MHC included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” or under “Recent Developments” in the Registration Statement Prospectus and Prospectus the General Disclosure Package do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited consolidated financial statements included in the Registration Statement, the Prospectus and the General Disclosure Package, (CB) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC and the Bank or any decrease in consolidated total assets, investment securities, total loans, the allowance for loan losses, total deposits or retained earnings net worth of the MHC and the Bank, in each case as compared with the amounts shown in the March 31, 2019 unaudited consolidated statements of financial conditions included condition presented under the “Recent Developments” caption in the Registration Statement or, (DC) during the period from [ ]April 1, 2014 2019 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCBank, or increases in interest expense, or the provisions for loan losses or except in all instances for increases or decreases which the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement Statement, Prospectus and the General Disclosure Package, including the Prospectus Package and which that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the MHC Company and the Bank identified in such letter.
(g) At the Closing Time, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇B▇▇▇▇▇▇ & CompanyCo., P.C. LLP a letter, letter dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter letters furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five three (3) business days prior to the Closing Time.
(h) At the Closing Time, the Securities and the Foundation Shares shall have been approved for trading listing on the Nasdaq Capital Market upon notice of issuanceStock Market.
(i) At the Closing Time, the Agent Bank shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the issuance and contribution of the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either any of the NYSE American, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either any of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by Federal, Massachusetts either Federal or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The CompanyMHC, the MHCCompany, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the CompanyMHC, the MHC Company and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors trustees of the Company, Bank and the MHC and the Bank officers and directors of the Company made pursuant to the provisions hereof, to the performance by the CompanyMHC, the MHC Company and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, threatened by the FRBCommission, or the FRB and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of L▇▇▇ ▇▇▇▇▇ Lovells US LLP▇▇, PC, counsel for the CompanyMHC, the MHC Company and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on as attached hereto as Exhibit A hereto.B.
(2) The favorable opinion, dated as of the Closing Time, of Silver, F▇▇▇▇▇▇▇, T▇▇▇ Procter & T▇▇▇▇▇▇ LLP, counsel for the Agent, with respect as to such matters as the Agent may reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇L▇▇▇ Lovells US LLP and ▇▇▇▇▇▇, PC and Silver, F▇▇▇▇▇▇▇, T▇▇▇ Procter & T▇▇▇▇▇▇ LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial financial, pro forma, appraisal or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial financial, pro forma, appraisal or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective effective, as of the date of the Prospectus or at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇L▇▇▇ Lovells US LLP and ▇▇▇▇▇▇, PC and Silver, F▇▇▇▇▇▇▇, T▇▇▇ Procter & T▇▇▇▇▇▇ LLP may rely as to matters of fact on certificates of officers and directors of the CompanyMHC, the MHC Company and the Bank and certificates of public officials. Silver, and F▇▇▇▇▇▇▇, Taff & T▇▇▇▇▇▇ Procter LLP may also rely on the opinion of L▇▇▇ ▇▇▇▇▇ Lovells US LLP▇▇, PC.
(c) At the Closing Time referred to in Section 22 hereof, the Company, the MHC Bank and the Bank MHC shall have completed in all material respects the conditions precedent to the Conversion Reorganization in accordance with the Plan, the applicable provisions of New York Conversion Regulations Law, the Conversion Regulations, FRB Regulations, Banking Law and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Reorganization imposed upon the Company Company, the MHC or the Bank by the FRB, the NYSDFS, the FDIC or any other regulatory authority other than those which the FRB FRB, the NYSDFS or the Division permits any such other regulatory authority permit to be completed after the ConversionOfferings.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC and the Bank, considered as one enterpriseMaterial Adverse Effect, whether or not arising in the ordinary course of business consistent with past practicebusiness, and the Agent shall have received a certificate of the President and Chief Executive Officer of the CompanyMHC, of the MHC Company and of the Bank and the Chief Financial Officer of the Company, of the MHC, the Company and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse changeMaterial Adverse Effect, (ii) there shall have been no material transaction entered into by the CompanyMHC, the MHC Company or the Bank from the latest date as of which the financial condition of the Company, the MHC Company or the Bank, as set forth in the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither none of the Company nor Company, the MHC or the Bank shall have received from the FRB FRB, the NYSDFS or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which would materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC or and the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC and the Bank has have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company, the MHC or the Bank, threatened by the Commission, and (vii) no order suspending the Subscription and Community Offering FRB’s and/or the NYSDFS’ approvals of the Holding Company Applications or the Syndicated Community Offering transactions contemplated thereby or the authorization for final use NYSDFS’ approval of the Prospectus Conversion Application or the FDIC’s non-objection to the Conversion Application or the transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to their knowledgethe knowledge of the Company, the MHC or the Bank, threatened by the FRB FRB, the NYSDFS or the FDIC and no person has sought to obtain regulatory or judicial review of the action of the Division NYSDFS in approving the Plan in accordance with the New York Conversion Law nor has any person sought to obtain regulatory or judicial review of the action of the FRB or the NYSDFS in approving the Holding Company ApplicationApplications or the NYSDFS approving or the FDIC issuing its non-objection to the Conversion Applications, and (viii) no order suspending the Subscription and Community Offering or the Syndicated Offering, if any, or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the FRB, the NYSDFS or the FDIC.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of the CompanyMHC, of the MHC Company and of the Bank and the Chief Financial Officer of the CompanyMHC, of the MHC Company and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package fairly present the financial condition and results of operations of the MHC and the subsidiaries Company as of and for the dates and periods covered by the Registration Statement and the General Disclosure PackageProspectus; (iv) they are responsible for establishing and maintaining disclosure controls and procedures; (v) they have designed such disclosure controls and procedures to ensure that material information relating to the Company, including the ProspectusMHC and the Bank is made known to them; (vi) they have evaluated the effectiveness of their disclosure controls and procedures; and (vii) they have disclosed to B▇▇▇▇▇▇ & Co., LLP and the audit committee (A) all significant deficiencies in the design or operation of disclosure controls and procedures which are reasonably likely to adversely affect the Bank’s ability to record, process, summarize, and report financial data, and have identified for the Company’s and the Bank’s independent registered public accounting firm any material weaknesses in disclosure controls and procedures and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s and the Bank’s disclosure controls and procedures.
(f) At the time As of the execution of this Agreementdate hereof, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇B▇▇▇▇▇▇ & CompanyCo., P.C., LLP a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHC, the Company and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the FRB Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇S▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇, ▇B▇▇▇▇▇▇ & CompanyCo., P.C. LLP set forth in detail in such letterletters, nothing has come to their attention which causes them to believe that that, except as set forth in such letters, (A) the unaudited consolidated financial statements and supporting schedules of the MHC included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” or under “Recent Developments” in the Registration Statement Prospectus and Prospectus the General Disclosure Package do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited consolidated financial statements included in the Registration Statement, the Prospectus and the General Disclosure Package, (CB) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC and the Bank or any decrease in consolidated total assets, investment securities, total loans, the allowance for loan losses, total deposits or retained earnings total net worth of the MHC and the Bank, in each case as compared with the amounts shown in the March 31, 2019 unaudited consolidated statements of financial conditions included condition presented under the “Recent Developments” caption in the Registration Statement or, (DC) during the period from [ ]March 31, 2014 2019 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCBank, or increases in interest expense, or the provisions for loan losses or except in all instances for increases or decreases which the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement Statement, Prospectus and the General Disclosure Package, including the Prospectus Package and which that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the MHC Company and the Bank identified in such letter.
(g) At the Closing Time, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇B▇▇▇▇▇▇ & CompanyCo., P.C. LLP a letter, letter dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter letters furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five three (3) business days prior to the Closing Time.
(h) At the Closing Time, the Securities and the Foundation Shares shall have been approved for trading listing on the Nasdaq Capital Market upon notice of issuanceStock Market.
(i) At the Closing Time, the Agent Bank shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the issuance and contribution of the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either any of the NYSE MKT, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either any of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by Federal, Massachusetts either Federal or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of the Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, Statement shall have been issued under the Securities 1933 Act or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, Prospectus shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the FRB, OTS and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ Lovells US LLP& ▇▇▇▇▇▇▇▇, counsel for the Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on Exhibit A heretoproviding that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware.
(2ii) The favorable opinion, dated Company has full corporate power and authority to own its properties and to conduct its business as of described in the Closing Time, of ▇▇▇▇▇▇▇ Procter LLP, counsel for the Agent, with respect Registration Statement and Prospectus and to such matters as the Agent may reasonably requireenter into and perform its obligations under this Agreement.
(3iii) In addition The Company is duly qualified as a foreign corporation to giving their opinions required by subsections (b)(l) transact business and (b)(2)is in good standing in the State of New Jersey and in each other jurisdiction in which such qualification is required, respectively, of this Section, ▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter LLP shall each additionally state that nothing has come except where the failure to their attention that so qualify would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of not have a material fact adverse effect upon the financial condition, results of operations or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter LLP may rely as to matters of fact on certificates of officers and directors business of the Company, the Bank and the Subsidiary, taken as a whole.
(iv) Upon consummation of the Conversion and Reorganization, the authorized, issued and outstanding capital stock of the Company will be within the range as set forth in the Prospectus under "Capitalization," and no shares of Common Stock have been issued and outstanding prior to the Closing Time.
(v) The Securities and the Exchange Shares have been duly and validly authorized for issuance and sale; the Securities, when issued and delivered by the Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be duly and validly issued and fully paid and non-assessable; the Exchange Shares, when issued, will be duly and validly issued and fully paid and non-assessable.
(vi) The issuance of the Securities and the Exchange Shares is not subject to preemptive or other similar rights arising by operation of law or, to such counsel's knowledge and information, otherwise.
(vii) The MHC has been duly organized and is validly existing and in good standing under the laws of the United States of America as a mutual holding company, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business of the MHC.
(viii) The Bank has been at all times since the date hereof and prior to the Closing Time organized, and is validly existing, under the laws of the State of New Jersey as a state-chartered savings and loan association of stock form, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus; and the Bank and certificates is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of public officials, and ▇▇▇▇▇▇▇ Procter LLP may also rely on the opinion operations or business of ▇▇▇▇▇ Lovells US LLP.
(c) At the Closing Time referred to in Section 2, the Company, the MHC MHC, the Bank and the Subsidiary, taken as a whole.
(ix) The Bank shall is a member of the Federal Home Loan Bank of New York and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(x) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of Interim B will have completed been duly authorized and validly issued and fully paid and unassessable, and to such counsel's knowledge all such capital stock will be converted into shares of Bank Common Stock upon the merger of Interim B with the Bank and is not subject to any security interest, mortgage, pledge, lien, encumbrance or claim.
(xi) The Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the laws of the state of New Jersey, has full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify would have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank and the Subsidiary, taken as a whole; the activities of the Subsidiary as described in the Prospectus are permitted to subsidiaries of a savings and loan holding company and of a New Jersey chartered savings bank by the rules, regulations, resolutions and practices of the OTS and by New Jersey law and the rules, regulations, resolutions and practices of the New Jersey Department of Banking; all of the issued and outstanding capital stock of the Subsidiary has been duly authorized and validly issued, is fully paid and nonassessable and is owned directly by the Bank, to such counsel's knowledge, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim.
(xii) Upon consummation of the Conversion and Reorganization, all of the issued and outstanding capital stock of the Bank will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim.
(xiii) The OTS has approved the Holding Company Application and the Conversion Application (including the formation and merger of Interim A and Interim B), such approvals remain in full force and effect and no action is pending or, to such counsel's knowledge, threatened respecting the Holding Company Application or the Conversion Application or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion Application comply as to form in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations and all other applicable lawsrequirements of the OTS, regulationsand, decisions to such counsel's knowledge, include all documents required to be filed as exhibits thereto, excluding the Prospectus and orders, including any related marketing materials filed as a part of the Holding Company Application or the Conversion Application as to which no opinion need be given; the Company is duly authorized to become a savings and loan holding company and is duly authorized to own all terms, conditions, requirements of the issued and provisions precedent outstanding capital stock of the Bank pursuant to the Conversion imposed upon the Company or the Bank by the FRB, or any other regulatory authority other than those which the FRB or the Division permits to be completed after the ConversionPlan.
(dxiv) At The New Jersey Department of Banking has approved the Closing TimeNew Jersey Application, there shall not have beenand such approval remains in full force and effect and no action is pending or, since to such counsel's knowledge, threatened respecting the date hereof or since New Jersey Application; the respective dates New Jersey Application complies as to form in all material respects with New Jersey law and regulations and all other applicable requirements of which information is given in the Registration Statement New Jersey Department of Banking, and, to such counsel's knowledge, includes all documents required to be filed as exhibits thereto.
(xv) The execution and delivery of this Agreement and the General Disclosure Packageconsummation of the transactions contemplated hereby, including (A) have been duly and validly authorized by all necessary action on the Prospectus, any material adverse change in the financial condition, results part of operations, business affairs or prospects each of the Company, the MHC and the Bank, considered as one enterpriseand this Agreement constitutes the legal, whether or not arising in the ordinary course valid and binding agreement of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC, and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the MHC or the Bank, as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither the Company nor the Bank shall have received from the FRB any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC or the Bank, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC and the Bank, enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws and the availability of equitable remedies), (B) to such counsel's knowledge, will not conflict with or constitute a breach of, or default under, and no event has occurred which, with notice or lapse of time or both, would constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the MHC, the Bank or the Subsidiary pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC, the Bank or the Subsidiary is a party or by which any of them may be bound, or to which any of the property or assets of the Company, the MHC, the Bank or the Subsidiary is subject that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business of the Company, the Bank and the Subsidiary, taken as a whole, and (C) will not result in any violation of the provisions of the certificate or articles of incorporation, charter or bylaws of the Company, the MHC, the Bank or the Subsidiary.
(xvi) The Prospectus has complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior been duly authorized by the OTS for final use pursuant to the Closing TimeConversion Regulations and no action has been taken, or is pending or, to such counsel's knowledge, threatened, by the OTS to revoke such authorization.
(vixvii) The Registration Statement is effective under the 1933 Act and no stop order suspending the effectiveness of the Registration Statement has been issued and no under the 1933 Act nor have proceedings for that purpose have been initiated or threatened by the Commission, and (vii) no order suspending the Subscription and Community Offering or the Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have therefor been initiated or, to their such counsel's knowledge, threatened by the FRB and no person has sought to obtain regulatory or judicial review of the action of the Division in approving the Plan nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Holding Company ApplicationCommission.
(exviii) At the Closing TimeNo further approval, the Agent shall have received a certificate authorization, consent or other order of the President and Chief Executive Officer of the Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, do not contain any untrue statement of a material fact public board or omit to state a material fact necessary body is required in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, fairly present the financial condition and results of operations of the MHC and the subsidiaries as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus.
(f) At the time of connection with the execution and delivery of this Agreement, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C., a letter dated such date, in form and substance satisfactory to issuance of the Agent, to the effect that: (i) they are independent public accountants with respect to the MHCSecurities, the Company Exchange Shares and the Bank within the meaning consummation of the Code Conversion and Reorganization, except as may be required under the securities or Blue Sky laws of Ethics of various jurisdictions as to which no opinion need be rendered.
(xix) At the American Institute of Certified Public Accountants, the Securities Act and the Securities Act Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in time the Registration Statement became effective, the Registration Statement (other than the financial statements, appraisal and covered by their opinions therein comply statistical data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the applicable accounting requirements of the Securities 1933 Act and the Securities 1933 Act Regulations; .
(iiixx) based upon limited procedures as agreed upon by The Common Stock conforms to the Agent description thereof contained in the Prospectus, and ▇▇▇▇▇▇▇▇▇the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xxi) To such counsel's knowledge, ▇▇▇▇▇▇▇ & there are no legal or governmental proceedings pending or threatened against or affecting the Company, P.C. set forth the MHC, the Bank or the Subsidiary that are required, individually or in detail in such letterthe aggregate, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC included be disclosed in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as other than those disclosed therein, and all pending legal or governmental proceedings to form in all material respects with which the applicable accounting requirements Company, the MHC, the Bank or the Subsidiary is a party or to which any of the Securities Act and the Securities Act Regulations or their property is subject which are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included described in the Registration Statement, (C) at a specified date not more than five days prior including ordinary routine litigation incidental to the date of this Agreementbusiness, there has been any increase are, considered in the consolidated longaggregate, not material.
(xxii) The information in the Prospectus describing the liquidation account under the captions "The Conversion and Reorganization - Liquidation Rights" and "- Effects of Conversion and Reorganization - "Effect on Liquidation Rights" and the information under "Risk Factors - Financial Institution Regulation and Possible Legislation," "- Certain Anti-term or short-term debt Takeover Provisions Which May Discourage Takeover Attempts," " - Possible Adverse Income Tax Consequences of the MHC Distribution of Subscription Rights," "Dividend Policy," "Federal and the Bank or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings State Taxation," "Regulation," "The Conversion and Reorganization," "Restrictions on Acquisition of the MHC Company and the Bank, in each case as compared with ," "Description of Capital Stock of the amounts shown in Company" and "Description of Capital Stock of the consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from [ ], 2014 to a specified date not more than five days prior Bank" to the date extent that it constitutes matters of this Agreementlaw, there were any decreasessummaries of legal matters, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense documents or net income of the MHC, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the MHC and the Bank identified in such letter.
(g) At the Closing Time, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five days prior to the Closing Time.
(h) At the Closing Time, the Securities shall have been approved for trading on the Nasdaq Capital Market upon notice of issuance.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agentlegal conclusions, is so correct in all material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by Federal, Massachusetts or New York authoritiesrespects.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, Statement shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, Prospectus shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the FRBCommission, and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇ ▇▇▇▇▇▇ Lovells US LLP▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., counsel for the Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on Exhibit A heretoto the effect that:
(i) The Company has been duly organized and is validly existing as a stock holding company chartered under the laws of the State of Delaware; the MHC has been duly organized and is validly existing as a mutual holding company chartered under the laws of the State of New Jersey; the Bank has been duly organized and is validly existing as a savings bank chartered under the laws of the State of New Jersey.
(2ii) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇ Procter LLP, counsel for the Agent, with respect to such matters as the Agent may reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter LLP may rely as to matters of fact on certificates of officers and directors Each of the Company, the MHC and the Bank has full corporate power and certificates of public officialsauthority to own, lease and ▇▇▇▇▇▇▇ Procter LLP may also rely on operate its properties and to conduct its business as described in the opinion of ▇▇▇▇▇ Lovells US LLPRegistration Statement and the Prospectus and to enter into and perform its obligations under this Agreement and the transactions contemplated hereby.
(ciii) At Each of the Closing Time referred MHC and the Bank is duly qualified as a domestic or foreign corporation to transact business and is in Section 2good standing under the laws of the State of New Jersey and in each other jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a Material Adverse Effect.
(iv) The Company is duly qualified as a domestic and foreign corporation to transact business and is in good standing under the law of the State of Delaware, in the State of New Jersey and in each other jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a Material Adverse Effect.
(v) The authorized capital stock of the Company consists of 200,000,000 shares of Common Stock and 50,000,000 shares of preferred stock, par value $.01 per share, and the issued and outstanding capital stock of the Company is 50 shares of Common Stock, all of which are owned beneficially and of record by the MHC free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim; upon consummation of the Offerings, and the issuance of the Foundation Shares to the Foundation immediately upon completion thereof, the issued and outstanding capital stock of the Company will be within the range set forth in the Prospectus under "Capitalization."
(vi) The authorized capital stock of the Bank consists of 5,000,000 shares of common stock, par value $2.00 per share, and the issued and outstanding capital stock of the Bank is 250,000 shares of common stock, all of which are owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim. All of the issued and outstanding capital stock of the Bank has been duly authorized, validly issued and fully paid and nonassessable and has been issued in compliance with all federal and state securities laws.
(vii) The Securities and the Foundation Shares have been duly and validly authorized for issuance and sale; the Securities, when issued and delivered by the Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, or contributed by the Company pursuant to the Plan in the case of the Foundation Shares, will be duly and validly issued and fully paid and nonassessable.
(viii) The issuance of the Securities and the Foundation Shares is not subject to preemptive rights arising by operation of law, or, to such counsel's knowledge after due inquiry, otherwise, except for subscription rights granted pursuant to the Plan.
(ix) The issuance of the Securities and the Foundation Shares is in compliance with all conditions imposed upon the Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company or the Bank by the FRBFRB under the terms of their written approval, or any other regulatory authority other than those which the FRB or the Division permits to be completed after the Conversionas applicable.
(dx) At Each of the Closing TimeCompany and the MHC is registered as a bank holding company under the Bank Holding Company Act of 1956, there shall not have beenas amended.
(xi) The Bank is a member of the Federal Home Loan Bank of New York and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(xii) Each Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, since and each of the date hereof or since the respective dates Subsidiaries has full corporate power and authority to own, lease and operate its properties and to conduct its business as of which information is given described in the Registration Statement and Prospectus, and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the General Disclosure Packageownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a Material Adverse Effect; the activities of each Subsidiary as described in the Registration Statement and Prospectus are permitted to subsidiaries of a New Jersey chartered savings bank, in the case of the Bank, and a Delaware chartered stock holding company, in the case of the Company, by the rules, regulations, resolutions and practices of the FRB; all of the issued and outstanding capital stock of each Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and is owned by the MHC or the Bank, as the case may be, directly, free and clear of any security interest, mortgage, pledge, lien, encumbrance, or legal or equitable claim.
(xiii) The Foundation is duly incorporated and is validly existing as a non-stock corporation in good standing under the laws of the State of Delaware with corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus; the Foundation is not a bank holding company within the meaning of 12 C.F.R. Section 225.2(c) as a result of the issuance of shares of Common Stock to it in accordance with the terms of the Plan and in the amounts as described in the Prospectus; no approvals are required to establish the Foundation and to contribute the Foundation Shares thereto as described in the Prospectus other than those set forth in any written notice or order of approval or non-objection of the Modification, a copy of which was provided to the Agent prior to the Closing Time; and the issuance of the Foundation Shares to the Foundation is registered pursuant to the Registration Statement.
(xiv) The FRB has duly approved the Modification and the Plan; to such counsel's knowledge, such approval remains in full force and effect and no action is pending, or to the best of such counsel's knowledge, threatened respecting the Modification, including the ProspectusPlan. The Modification complies as to form in all material respects with the applicable requirements of the FRB, any material adverse change in includes all documents required to be filed as exhibits thereto, and is, to the financial conditionbest of such counsel's knowledge after due inquiry, results truthful, accurate and complete.
(xv) The execution and delivery of operationsthis Agreement, business affairs or prospects the incurrence of the obligations herein set forth, and the consummation of the transactions contemplated hereby, (A) have been duly and validly authorized by all necessary corporate action on the part of each of the Company, the MHC and the Bank, considered as one enterpriseand this Agreement constitutes the legal, whether or not arising in the ordinary course valid and binding agreement of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC, and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the MHC or the Bank, as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither the Company nor the Bank shall have received from the FRB any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC or the Bank, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC and the Bank, enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws and the availability of equitable remedies); (B) will not result in any violation of the provisions of the certificate of incorporation, articles of incorporation or charter, as the case may be, or bylaws of the Company, the MHC, the Bank or any Subsidiary; and, (C) will not conflict with or constitute a breach of, or default under, and no event has complied occurred which, with all agreements and satisfied all conditions on their part notice or lapse of time or both, would constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the MHC, the Bank or the Subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC, the Bank or the Subsidiaries is a party or by which any of them may be performed bound, or satisfied at to which any of the property or prior assets of the Company, the MHC, the Bank or the Subsidiaries is subject that, individually or in the aggregate, would have a Material Adverse Effect.
(xvi) No approval of any other regulatory or supervisory or other public authority is required in connection with the final use of the Prospectus.
(xvii) The Registration Statement is effective under the Securities Act and, to the Closing Timebest of such counsel's knowledge, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no under the Securities Act or, proceedings for that purpose have been therefor initiated or threatened by the Commission, and (vii) no order suspending the Subscription and Community Offering or the Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or, to their knowledge, threatened by the FRB and no person has sought to obtain regulatory or judicial review of the action of the Division in approving the Plan nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Holding Company Application.
(exviii) At the Closing TimeNo further approval, the Agent shall have received a certificate authorization, consent or other order of the President and Chief Executive Officer of the Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, do not contain any untrue statement of a material fact public board or omit to state a material fact necessary body is required in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, fairly present the financial condition and results of operations of the MHC and the subsidiaries as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus.
(f) At the time of connection with the execution and delivery of this Agreement, the Agent shall have received from ▇▇▇▇▇▇▇▇▇issuance of the Securities and the consummation of the transactions contemplated by the Plan, ▇▇▇▇▇▇▇ & Company, P.C., a letter dated such date, in form and substance satisfactory except as may be required under the securities or "Blue Sky" laws of various jurisdictions as to which no opinion need be rendered.
(xix) At the Agent, to time the effect that: (i) they are independent public accountants with respect to the MHCRegistration Statement became effective, the Company and Registration Statement (other than the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public Accountants, the Securities Act and the Securities Act Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules statistical data included in the Registration Statement and covered by their opinions therein comply therein, as to which no opinion need be rendered) complied as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; .
(iiixx) based upon limited procedures as agreed upon by The Common Stock conforms to the Agent description thereof contained in the Prospectus, and ▇▇▇▇▇▇▇▇▇the form of certificate used to evidence the Common Stock complies with all applicable statutory requirements.
(xxi) To our actual knowledge, ▇▇▇▇▇▇▇ & there are no legal or governmental proceedings pending or threatened against or affecting the Company, P.C. set forth the MHC, the Bank or the Subsidiaries which are required, individually or in detail in such letterthe aggregate, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC included be disclosed in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as other than those disclosed therein, and all pending legal or governmental proceedings to form in all material respects with which the applicable accounting requirements Company, the MHC, the Bank or any Subsidiary is a party or to which any of the Securities Act and the Securities Act Regulations or their property is subject which are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included described in the Registration Statement, (C) at a specified date not more than five days prior including ordinary routine litigation incidental to the date of this Agreementbusiness, there has been any increase are, considered in the consolidated long-term or short-term debt of the MHC and the Bank or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings of the MHC and the Bank, in each case as compared with the amounts shown in the consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from [ ], 2014 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHC, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified proceduresaggregate, not constituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the MHC and the Bank identified in such lettermaterial.
(gxxii) At The information in the Closing TimeProspectus under "Risk Factors - Persons Who Purchase Stock in the Offering Will Own a Minority of Investors Bancorp Inc.'s Common Stock and Will Not Be Able to Exercise Voting Control over Most Matters Put to a Vote of Stockholders," "Our Stock Value May be Negatively Affected by Federal Regulations Restrictively Takeovers and Our Mutual Holding Company Structure," "Our Policy Regarding Dividends," "Supervision and Regulation," "Federal and State Taxation," "The Offering," "Restrictions on the Acquisition of Investors Bancorp, the Agent shall have received from ▇▇▇▇▇▇▇▇▇Inc. and Investors Savings Bank," "Description of Capital Stock of Investors Bancorp, ▇▇▇▇▇▇▇ & Company, P.C. a letter, dated as of the Closing Time, Inc." and "Legal and Tax Matters" to the effect extent that they reaffirm the statements made in the letter furnished pursuant to subsection (f) it constitutes matters of this Sectionlaw, except that the specified date referred to shall be a date not more than five days prior to the Closing Time.
(h) At the Closing Timesummaries of legal matters, the Securities shall have been approved for trading on the Nasdaq Capital Market upon notice of issuance.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related or proceedings, or legal conclusions, has been reviewed by them and is complete and accurate in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agentmaterial respects.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by Federal, Massachusetts or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent Agents to act and continue to act as Agents hereunder are shall be subject to the accuracy of the representations and warranties made herein on the part of the Company, the MHC and the Bank herein contained as of Company at the date hereof of this agreement and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC and the Bank made pursuant to the provisions hereofany Settlement Date, to the performance by the Company, the MHC and the Bank Company of their its obligations to be performed hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration StatementStatement shall be in effect, including any post-effective amendment theretoand no proceedings for that purpose shall be pending before, or threatened by, the Commission; and the Agents shall have been issued under received a certificate, dated the Securities Act date of this agreement and signed by an officer of the Company, to the effect that no such stop order is in effect and that no proceedings for such purpose are pending before, or proceedings therefor initiated or, to the knowledge of the CompanyCompany threatened by, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, threatened by the FRB, and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇ Lovells US LLP, counsel for the Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on Exhibit A hereto.
(2) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇ Procter LLP, counsel for the Agent, with respect to such matters as the Agent may reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, date of this Section, ▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter LLP shall each additionally state that nothing has come to their attention that would lead them to believe that agreement the Registration Statement (except for financial statements, notes to financial statements, stock valuation information and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter LLP 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, and ▇▇▇▇▇▇▇ Procter LLP may also rely on the opinion of ▇▇▇▇▇ Lovells US LLP.
(c) At the Closing Time referred to in Section 2, the Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company or the Bank by the FRB, or any other regulatory authority other than those which the FRB or the Division permits to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC and the Bank, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC, and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the MHC or the Bank, as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither the Company nor the Bank Agents shall have received from the FRB any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC or the Bank, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC and the Bank has complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission, and (vii) no order suspending the Subscription and Community Offering or the Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or, to their knowledge, threatened by the FRB and no person has sought to obtain regulatory or judicial review of the action of the Division in approving the Plan nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Holding Company Application.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, fairly present the financial condition and results of operations of the MHC and the subsidiaries as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus.
(f) At the time of the execution of this Agreement, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, P.C., a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHC, the Company and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public Accountants, the Securities Act and the Securities Act Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇, L.L.P., general counsel for the Company, ▇▇▇▇ & Priest LLP, of counsel to the Company, and Winthrop, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ Act; & ▇▇▇▇▇▇▇, Counsel for the Agents, opinions in substantially the form and substance prescribed in Schedules I, II and III hereto (i) with such changes therein as may be agreed upon by the Company and the Agents, with the approval of Counsel for the Agents, and (ii) it is if the Prospectus relating to the Securities shall be supplemented or amended after the Prospectus shall have been filed with, or transmitted for filing to, the Commission pursuant to Rule 424 of the General Rules and Regulations under the Securities Act (Rule 424), with any changes therein necessary to reflect such supplementation or amendment.
(c) At the date of this agreement, the Agents shall have received from Deloitte & Touche LLP a letter to the effect that (i) they are independent certified public accountants with respect to the Company, within the meaning of the Securities Act and the applicable published rules and regulations thereunder, (ii) in their opinion that opinion, the consolidated financial statements audited by them and supporting schedules included or incorporated by reference in the Registration Statement and covered by their opinions therein Prospectus comply as to form in all material respects with the applicable accounting requirements of the Securities Exchange Act and the Securities Act Regulations; published rules and regulations thereunder, (iii) based upon limited procedures as agreed upon on the basis of a reading of the unaudited amounts of operating revenues and net income included or incorporated by reference in the Agent Prospectus and ▇▇▇▇▇▇▇▇▇the related financial statements from which these amounts were derived, ▇▇▇▇▇▇▇ & the latest available unaudited financial statements of the Company, P.C. set forth the minute books of the Company, and inquiries of officers of the Company who have respon- sibility for financial and accounting matters (it being understood that the foregoing procedures do not constitute an audit made in detail accordance with generally accepted auditing standards and they would not necessarily reveal matters of significance with respect to the comments made in such letter, and accordingly that Deloitte & Touche LLP makes no representation as to the sufficiency of such procedures for the Agents' purposes), nothing has come to their attention which causes caused them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC included incorporated by reference in the Registration Statement and the General Disclosure Package, including the Prospectus, do Prospectus were not comply as to form determined in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations or are not presented in conformity accordance with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included corresponding amounts in the Registration Statement and the General Disclosure Package, including the Prospectuslatest available audited financial statements, (B) the unaudited amounts of net interest income operating revenues and net income set forth under “Selected Consolidated Financial and Other Data” of the Company included or incorporated by reference in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining of the corresponding amounts in the audited financial statements included of income incorporated by reference in the Registration StatementProspectus, (C) for the twelve months ended as of the date of the latest available financial statements of the Company, there were any decreases in operating revenues or net income as compared with the comparable period of the preceding year, and (D) at a specified date not more than five seven days prior to the date of this Agreementsuch letter, there has been was any increase change in the consolidated longcapital stock of the Company, short-term bank loans, commercial paper, notes payable to Texas Utilities Company or shortlong-term debt of the MHC and the Bank Company or any decrease in consolidated total its net assets, the allowance for loan losses, total deposits or retained earnings of the MHC and the Bank, in each case as compared with the amounts shown in the consolidated statements of financial conditions included most recent balance sheet incorporated by reference in the Registration Statement or, (D) during the period from [ ], 2014 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCProspectus, except in all instances for increases changes or decreases which that the Registration Statement and the General Disclosure Package, including the Prospectus, disclose Prospectus discloses have occurred or may occur; , or which are occasioned by the decla- ration of a regular quarterly dividend or the acquisition of long-term debt for sinking fund purposes, or which are de- scribed in such letter, and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain compared the dollar amounts (or percentages or ratios derived from such dollar amounts, percentages ) and other financial information which are included or incorporated by reference in the Registration Statement and the General Disclosure Package, including the Prospectus and which are specified as reasonably requested by the AgentAgents (in each case to the extent that such dollar amounts, percentages and other financial information are derived from the general accounting records of the Company subject to the internal controls of the Company's accounting system or are derived indirectly from such records by analysis or computation) with the results obtained from inquiries, a reading of such general accounting records and other procedures specified in such letter, and have found such dollar amounts, percentages and other financial information to be in agreement with the relevant accountingsuch results, financial and other records of the MHC and the Bank identified except as otherwise specified in such letter.
(gd) At Since the Closing Timemost recent dates as of which information is given in the Registration Statement or the Prospectus there shall not have been any material adverse change in the business, property or financial condition of the Agent Company and, since such dates, there shall not have been any material transaction entered into by the Company, in each case other than transactions in the ordinary course of business or transactions contemplated by the Registration Statement or Prospectus and at the date of this agreement the Agents shall have received a certificate to such effect, signed by an officer of the Company.
(e) On and as of each Settlement Date, the Agents shall have received (i) from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company▇▇▇▇▇▇▇▇▇▇, P.C. L.L.P. their opinion confirming the matters set forth in paragraph 5 of Schedule I hereto, and (ii) a letter, dated as certificate of an officer of the Closing Time, Company to the effect that they reaffirm the statements made resolutions of the Company's Board of Directors adopted at a meeting held are still in the letter furnished pursuant to subsection full force and effect and have not been altered, amended or rescinded or certifying any amendments or alterations thereto or any resolutions superseding such prior resolutions.
(f) of this Section, except that the specified date referred All legal proceedings to shall be a date not more than five days prior to the Closing Time.
(h) At the Closing Time, the Securities shall have been approved for trading on the Nasdaq Capital Market upon notice of issuance.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be have been satisfactory in form and substance to the Agent and counsel Counsel for the Agent.
(k) At Agents. In case any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the New York Stock Exchange or the Nasdaq Stock Market conditions specified above in this Section 7 shall not have been suspendedfulfilled, and minimum or maximum prices for trading the Agents shall not have been fixedno further obligation to proceed with any offering, sale, or maximum ranges for prices for securities have been requiredany solicitation of purchase, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by Federal, Massachusetts or New York authoritiesSecurities.
Appears in 1 contract
Sources: Distribution Agreement (Texas Utilities Electric Co)
Conditions of Agent’s Obligations. The Company, the Mid-Tier Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the Mid-Tier Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, Statement shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the Commission, no order suspending the Offerings or the authorization for final use effectiveness of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, Prospectus shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the FRBCommission or the OTS, and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinionopinion contained in Exhibit 1 hereof, dated as of the Closing Time, of ▇▇▇▇▇▇▇ Lovells US ▇▇▇▇▇▇ & Aguggia LLP, special counsel for the Company, the Mid-Tier Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on Exhibit A hereto.
(2) The favorable opinionopinion contained in Exhibit 2 hereof, dated as of the Closing Time, of ▇▇▇▇ ▇▇▇▇▇▇ Procter LLP▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., counsel for the Patapsco Parties, in form and substance satisfactory to the counsel for the Agent.
(3) The favorable opinion contained in Exhibit 3 hereof, dated as of Closing Time, of Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P, counsel for the Agent, with respect in form and substance satisfactory to such matters as the Agent may reasonably requireAgent.
(34) In addition to giving their opinions required by subsections (b)(l) and (b)(2b)(3), respectively, of this Section, ▇▇▇▇▇▇▇ Lovells US ▇▇▇▇▇▇ & Aguggia LLP and Elias, Matz, ▇▇▇▇▇▇▇ Procter LLP & ▇▇▇▇▇▇▇ L.L.P. shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at the Closing Time, or that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇ & Aguggia LLP, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Procter LLP & ▇▇▇▇▇▇, P.C. and Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. may rely as to matters of fact on certificates of officers and directors of the Company, the MHC Mid-Tier Company, the MHC, the Bank and the Bank Subsidiaries, or the Patapsco Parties, as applicable, and certificates of public officials, and Elias, Matz, ▇▇▇▇▇▇▇ Procter LLP & ▇▇▇▇▇▇▇ L.L.P. may also rely on the opinion of ▇▇▇▇▇▇▇ Lovells US LLP▇▇▇▇▇▇ & Aguggia LLP with respect to matters set forth in paragraphs (i), (ii), (iii), (iv),(vii), (viii), (ix), (xvii), (xviii) and (xxi) therein.
(c) At the Closing Time referred to in Section 2, the Company, the Mid-Tier Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion Offerings in accordance with the Plan, the applicable Conversion OTS Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Offerings imposed upon the Company Company, the Mid-Tier Company, the MHC or the Bank by the FRBOTS, or any other regulatory authority other than those which the FRB or the Division OTS permits to be completed after the ConversionOfferings.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC Mid-Tier Company, the MHC, the Bank and the BankSubsidiaries, considered as one enterprise, or the Patapsco Parties, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the Mid-Tier Company, of the MHC and of the Bank and the Chief Financial or Chief Accounting Officer of the Company, of the MHCMid-Tier Company, of the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the MHC MHC, the Bank or the Bank Patapsco Parties from the latest date as of which the financial condition of the Company, the MHC or the Bank, as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, practice (iii) neither the Company Company, the Mid-Tier Company, the MHC, the Bank nor the Bank Patapsco Parties shall have received from the OTS, the Maryland Commissioner, the FDIC or the FRB any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC Mid-Tier Company, the MHC, the Bank and the Subsidiaries, considered as one enterprise, or the BankPatapsco Parties, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the Mid-Tier Company, the MHC and the Bank has complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or or, to the best of their knowledge after inquiry, threatened by the Commission, and (vii) no order suspending the Subscription and Community Offering or the Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or, to the best of their knowledge, threatened by the FRB OTS and no person has sought to obtain regulatory or judicial review of the action of the Division OTS in approving the Plan nor has any person sought to obtain regulatory or judicial review of in accordance with the action of the FRB in approving the Holding Company ApplicationOTS Regulations.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer and President of the Company, of the Mid-Tier Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the Mid-Tier Company, of the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus fairly present the financial condition and results of operations of the MHC and any subsidiary, and the subsidiaries Patapsco Parties, as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus.
(f1) At the time of the execution of this Agreement, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C., a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the Company, the Mid-Tier Company, the MHC, the Company Bank and the Bank Subsidiaries within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the OTS Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and Act, the Securities Act Regulations and the OTS Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other DataData of Bradford Bank MHC” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt or non-performing assets of the MHC and the Bank Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings of the MHC and the BankMHC, in each case as compared with the amounts shown in the consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from [ ]March 31, 2014 2007 to a specified date not more than five (5) days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHC, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the Mid-Tier Company, the MHC and the Bank identified in such letter.
(g2) At the Closing Timetime of the execution of this Agreement, the Agent shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇ a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to Patapsco, Patapsco Bank and the Patapsco Subsidiaries within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the applicable regulations of the FDIC and the FRB, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinion therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇ ▇▇▇▇▇▇ set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of Patapsco included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations and the OTS Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data of Patapsco Bancorp” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) days prior to the date of this Agreement, there has been any increase in the long-term or short-term debt or non-performing asset of Patapsco or any decrease in consolidated total assets, the allowance for loan losses, total deposits or stockholders’ equity of Patapsco, in each case as compared with the amounts shown in the consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from March 31, 2007 to a specified date not more than five (5) days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of Patapsco, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and Prospectus and which are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of Patapsco and Patapsco Bank identified in such letter.
(g) At Closing Time, the Agent shall have received from each of ▇▇▇▇▇▇▇ & Company, P.C. and ▇▇▇▇▇ ▇▇▇▇▇▇ a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(h) At the Closing Time, the Securities shall have been approved for trading on the Nasdaq Capital Market upon notice of issuance.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by Federal, Massachusetts or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC Company and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC Company and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC Company and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, Statement shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, Prospectus shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the Division, the FDIC or the FRB, and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1i) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇ Lovells US LLP, counsel for the Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on Exhibit A hereto.
(2) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇ Procter LLP, counsel for the Company, the Bank, and the MHC in form and substance satisfactory to counsel for the Agent, as set forth in Exhibit A hereto.
(ii) The favorable opinion, dated as of Closing Time, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Wood LLP ("▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇"), counsel for the Agent, with respect to such the matters as the Agent may reasonably require.
(3iii) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇▇▇▇▇▇ Lovells US LLP Procter and ▇▇▇▇▇▇▇ Procter LLP ▇▇▇▇▇▇▇▇ shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, effective or that the Prospectus and the General Disclosure Package as of the Applicable Timeeffectiveness of the Registration Statement and as of the Closing Date, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information and schedules and other financial financial, tabular or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇▇▇▇ Lovells US LLP Procter and ▇▇▇▇▇▇▇ Procter LLP ▇▇▇▇▇▇▇▇ may rely as to matters of fact on certificates of officers and directors of the Company, the MHC Company and the Bank Bank, certificates of the officers and trustees of the MHC, and certificates of public officials, and ▇▇▇▇▇▇▇ Procter LLP ▇▇▇▇▇▇▇▇ may also rely on the opinion of ▇▇▇▇▇▇▇ Lovells US LLPProcter.
(c) At the Closing Time referred to in Section 2, the Company, the MHC Company and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company or the Bank by the FRBDivision, or any other regulatory authority other than those which the FRB or the Division permits to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC Bank and the Bank, MHC considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC and of the Bank and the MHC, and the Chief Financial Officer and Principal Accounting Officer of the Company, of the Bank and the MHC, and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the MHC Bank or the Bank MHC from the latest date as of which the financial condition of the Company, the MHC Company or the Bank, Bank as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither none of the Company nor Company, the Bank or the MHC shall have received from the Division, the FDIC or the FRB any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the businessbusiness affairs, financial condition, results of operations or prospects of the Company, the MHC Bank or the BankMHC, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC Bank and the Bank has MHC have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission, Commission and (vii) no order suspending the Subscription and Community Offering or the Syndicated Community Offering Offerings or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or, to their knowledge, or threatened by the Division, the FDIC or the FRB and no person has sought to obtain regulatory or judicial review of the action of the Division in approving the Plan in accordance with the Conversion Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Holding Company Application.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the Bank and the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC Bank and of the BankMHC, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, fairly present the financial condition and results of operations of the MHC Company, the Bank and the subsidiaries MHC as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus.
(f) At the time of the execution of this Agreement, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Wolf & Company, P.C., P.C. a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: that (i) they are independent public accountants with respect to the MHCCompany, the Company Bank and the Bank MHC within the meaning of the Code of Ethics of the American Institute of Certified Public Accountants, the Securities Act and Act, the Securities Act Regulations and the Conversion Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions opinion therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Wolf & Company, P.C. set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC and the Bank included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and Act, the Securities Act Regulations and the Conversion Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “"Selected Consolidated Financial and Other Financial Data” " or under "Recent Developments" in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions caption or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long-long term or short-short term debt of the MHC and the Bank or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings net worth of the MHC Bank and the BankMHC, in each case as compared with the amounts shown in the consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from [ ]October 1, 2014 2007 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCMHC and the Bank, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and the General Disclosure Package, including the Prospectus Prospectus, and which are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the MHC Company, the Bank and the Bank MHC identified in such letter.
(g) At the Closing Time, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Wolf & Company, P.C. a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (fd) of this Section, except that the specified date referred to shall be a date not more than five days prior to the Closing Time.
(h) At the Closing Time, the Securities shall have been approved for trading listing on the Nasdaq Capital Global Market upon notice of issuance.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Global Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, Massachusetts or New York or Massachusetts authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, Statement shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, Prospectus shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the FRBCommission or the OTS, and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of M▇▇▇▇▇▇ Lovells US ▇▇▇▇▇▇ Aguggia LLP, counsel for the Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, as set forth on in Exhibit A hereto.A.
(2) The favorable opinion, dated as of the Closing Time, of L▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Procter LLP& S▇▇▇▇▇, P.C., counsel for the Agent, with respect to such the matters as the Agent may reasonably require.set forth in Exhibit B.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, M▇▇▇▇▇▇ Lovells US ▇▇▇▇▇▇ & Aguggia LLP and L▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Procter LLP & S▇▇▇▇▇, P.C. shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter LLP 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, and ▇▇▇▇▇▇▇ Procter LLP may also rely on the opinion of ▇▇▇▇▇ Lovells US LLP.
(c) At the Closing Time referred to in Section 2, the Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion Reorganization and the Offerings in accordance with the Plan, the applicable Conversion OTS Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Reorganization and the Offerings imposed upon the Company Company, the MHC or the Bank by the FRBOTS, or any other regulatory authority other than those which the FRB or the Division OTS permits to be completed after the ConversionReorganization and the Offerings.
(d) At the Closing Time, there shall not have been, since the date hereof November 9, 2007 or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC MHC, the Bank and the BankSubsidiary, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC and of the Bank and the Chief Financial Officer chief financial or chief accounting officer of the Company, of the MHC, MHC and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the MHC or the Bank, as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither the Company Company, the MHC nor the Bank shall have received from the FRB OTS any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC or the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC and the Bank has have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or or, to the best of their knowledge after due inquiry, threatened by the Commission, and (vii) no order suspending the Subscription and Community Offering or the Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated orinitiated, or to the best of their knowledgeknowledge after due inquiry, threatened by the FRB OTS and no person has sought to obtain regulatory or judicial review of the action of the Division OTS in approving the Plan in accordance with the OTS Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB OTS in approving the Holding Company ApplicationPlan.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer and President of the Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus fairly present the financial condition and results of operations of the MHC Bank and the subsidiaries Subsidiary as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus.
(f) At the time of the execution of this Agreement, the Agent shall have received from ▇S▇▇▇▇▇▇▇▇, ▇M▇▇▇▇▇▇ & Company, P.C., P.C. a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the Company, the MHC, the Company Bank and the Bank Subsidiary within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the OTS Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇S▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇S▇▇▇▇▇▇▇▇, ▇M▇▇▇▇▇▇ & Company, P.C. set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC Bank included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and Act, the Securities Act Regulations and the OTS Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC and the Bank or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings net worth of the MHC and the Bank, in each case as compared with the amounts shown in the consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from [ ]June 30, 2014 2007 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCBank, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the MHC and the Bank identified in such letter.
(g) At the Closing Time, the Agent shall have received from ▇S▇▇▇▇▇▇▇▇, ▇M▇▇▇▇▇▇ & Company, P.C. a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(h) At the Closing Time, the Securities shall have been approved for trading quotation on the Nasdaq Capital Market OTC Bulletin Board upon notice of issuance.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, Massachusetts New Hampshire or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC Company and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, Company and the MHC officers and trustees of the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC Company and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, threatened by the FRBCommission, the Department, the FDIC or the FRB and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇ ▇▇ Lovells US LLP▇▇▇▇▇, PC, counsel for the Company, the MHC Company and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on as attached hereto as Exhibit A hereto.A.
(2) The favorable opinion, dated as of the Closing Time, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ Procter LLP, counsel for the Agent, with respect as to such matters as the Agent may reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇▇▇ ▇▇▇▇▇▇, PC and Silver, ▇▇▇▇▇▇▇▇, ▇▇▇▇ Lovells US LLP and & ▇▇▇▇▇▇▇ Procter LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information and schedules financial tables and other financial tabular, financial, pro forma, appraisal, accounting or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information and schedules statements and other financial tabular financial, pro forma, appraisal, accounting or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective effective, as of the date of the Prospectus or at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇ ▇▇▇▇▇▇, PC and Silver, ▇▇▇▇▇▇▇▇, ▇▇▇▇ Lovells US LLP and & ▇▇▇▇▇▇▇ Procter LLP may rely as to matters of fact on certificates of officers and directors of the Company, the MHC Company and the Bank and certificates of public officials. Silver, and ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ Procter LLP may also rely on the opinion of ▇▇▇▇ ▇▇ Lovells US LLP▇▇▇▇▇, PC.
(c) At the Closing Time referred to in Section 22 hereof, the Company, the MHC Company and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the Pennsylvania Conversion Law, the applicable Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company or the Bank by the FRB, the Department or the FDIC or any other regulatory authority other than those which the FRB FRB, the Department or the Division permits FDIC or any such other regulatory authority permit to be completed after the consummation of the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC and the Bank, considered as one enterpriseMaterial Adverse Effect, whether or not arising in the ordinary course of business consistent with past practicebusiness, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC Company and of the Bank and the Chief Financial Officer of the Company, of the MHC, Company and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse changeMaterial Adverse Effect, (ii) there shall have been no material transaction entered into by the Company, the MHC Company or the Bank from the latest date as of which the financial condition of the Company, the MHC Company or the Bank, as set forth in the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither the Company nor the Bank shall have received from the FRB FRB, the Department or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which would materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC or Company and the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC Company and the Bank has have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company or the Bank, threatened by the Commission, and (vii) no order suspending the Subscription and Community Offering FRB’s or the Syndicated Community Offering Department’s respective approval of the Holding Company Applications, the Department’s approval of the Pennsylvania Conversion Application, the FDIC’s letter of intent to issue a non-objection or non-objection to the FDIC Notice or the authorization for final use of the Prospectus respective transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to their knowledgethe knowledge of the Company or the Bank, threatened by the Department, the FDIC or the FRB and no person has sought to obtain regulatory or judicial review of the action of the Division Department in approving the Plan in accordance with the Pennsylvania Conversion Law nor has any person sought to obtain regulatory or judicial review of the action of the Department in approving the Pennsylvania Conversion Application or the action of the FRB or the Department in approving the Holding Company ApplicationApplications, and (viii) no order suspending the Subscription and Community Offering or the Syndicated Offering or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the Department, the FDIC or the FRB.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC Company and of the Bank and the Chief Financial Officer of the Company, of the MHC Company and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package fairly present the financial condition and results of operations of the MHC and the subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the General Disclosure PackageProspectus; (iv) they are responsible for establishing and maintaining disclosure controls and procedures; (v) they have designed such disclosure controls and procedures to ensure that material information relating to the Company and the Bank is made known to them; (vi) they have evaluated the effectiveness of their disclosure controls and procedures; and (vii) they have disclosed to YHB and the audit committee (A) all significant deficiencies in the design or operation of disclosure controls and procedures which are reasonably likely to adversely affect the Bank’s ability to record, including process, summarize, and report financial data, and have identified for the ProspectusCompany’s and the Bank’s independent registered public accounting firm any material weaknesses in disclosure controls and procedures and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s and the Bank’s disclosure controls and procedures.
(f) At the time As of the execution of this Agreementdate hereof, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C., YHB a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHC, the Company and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the Conversion Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. YHB set forth in detail in such letter, nothing has come to their attention which causes them to believe that that, except as set forth in such letters, (A) the unaudited consolidated financial statements and supporting schedules of the MHC included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other DataData of Prosper Bank” or under “Recent Developments” in the Registration Statement Prospectus and Prospectus the General Disclosure Package do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, the Prospectus and the General Disclosure Package, (CB) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC and the Bank or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings of the MHC and the Bank, in each case as compared with the amounts shown in the consolidated March 31, 2021 unaudited statements of financial conditions included condition presented under the “Recent Developments” caption in the Registration Statement or, (D) during the period from [ ]March 31, 2014 2021 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCBank or increases in interest expense or the provision for loan losses, except in all instances for increases or decreases which the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement Statement, Prospectus and the General Disclosure Package, including the Prospectus Package and which that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the MHC Company and the Bank identified in such letter.
(g) At the Closing Time, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. YHB a letter, letter dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter letters furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(h) At the Closing Time, the Securities shall have been approved for trading listing on the Nasdaq Capital Market upon notice of issuanceStock Market.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either any of the NYSE MKT, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either any of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, Massachusetts Pennsylvania or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC Company and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC Company and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC Company and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, Statement shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, Prospectus shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the FRB, OTS and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇▇▇▇ Lovells US LLP▇▇▇▇▇▇▇▇, counsel for the Company, the MHC Company and the Bank, in form and substance satisfactory to counsel for the Agent, to the effect set forth on Exhibit A hereto.in Appendix A.
(2) The favorable opinion, dated as of the Closing Time, of Elias, Matz, ▇▇▇▇▇▇▇ Procter LLP& ▇▇▇▇▇▇▇ L.L.P. (“▇▇▇▇▇ ▇▇▇▇”), counsel for the Agent, with respect to the matters set forth in clauses (i), (ii), (v), (vii), (viii) (solely as to preemptive rights arising by operation of law), (xv), (xvi) and (xviii) of Appendix A and such other matters as the Agent may reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇▇▇▇▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇▇ Procter LLP and ▇▇▇▇▇ ▇▇▇▇ shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statementsstatements and schedules, notes to financial statements, stock valuation information and schedules and other financial or statistical data included thereintherein or omitted therefrom, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statementsstatements and schedules, notes to financial statements, stock valuation information and schedules and other financial or statistical data included thereintherein or omitted therefrom, as to which counsel need make no statement), at the time the Registration Statement became effective or at the Closing Time, or that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. To the extent not inconsistent with the assumptions, qualifications and limitations which shall be set forth in the opinion, the opinions of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇ will be governed by, and shall be interpreted in accordance with, the Legal Opinion Accord (the “Accord”) of the American Bar Association Section of Business Law (1991). The clause “to counsel’s knowledge,” “to such counsel’s actual knowledge” or similar terms used in said opinion shall have the meaning set forth in the Accord for the term “Actual Knowledge.” In giving their opinions, ▇▇▇▇▇▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇▇ Procter LLP and ▇▇▇▇▇ ▇▇▇▇ may rely as to matters of fact on certificates of officers and directors of the Company, the MHC Company and the Bank and certificates of public officials, and ▇▇▇▇▇ ▇▇▇▇ Procter LLP may also rely on the opinion of ▇▇▇▇▇▇▇▇▇▇ Lovells US LLP▇▇▇▇▇▇▇▇.
(c) At the Closing Time referred to in Section 2, the Company, the MHC Company and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company or the Bank by the FRBOTS, or any other regulatory authority other than those which the FRB or the Division OTS permits to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change Material Adverse Change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC Bank and the Bank, Subsidiary considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC Company and of the Bank and the Chief Financial Officer and Principal Accounting Officer of the Company, of the MHC, Company and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse changeMaterial Adverse Change, (ii) there shall have been no material transaction entered into by the Company, the MHC Bank or the Bank Subsidiary from the latest date as of which the financial condition of the Company, the MHC Company or the Bank, Bank as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither the Company nor the Bank shall have received from the FRB OTS or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the businessbusiness affairs, financial condition, results of operations or prospects of the Company, the MHC Company or the Bank, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC Company and the Bank has complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission, Commission and (vii) no order suspending the Subscription and Community Offering or the Syndicated Community Offering Offerings or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or, to their knowledge, or threatened by the FRB OTS and no person has sought to obtain regulatory or judicial review of the action of the Division OTS in approving the Plan in accordance with the Conversion Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB OTS in approving the Holding Company Application.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC Company and of the Bank and the Chief Financial Officer and Principal Accounting Officer of the Company, of the MHC Company and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the Prospectus and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the Prospectus and the General Disclosure Package, including the Prospectus, Package fairly present the financial condition and results of operations of the MHC and the subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the General Disclosure PackageProspectus; (iv) they are responsible for establishing and maintaining internal controls; (v) they have designed such internal controls to ensure that material information relating to the Company and the Bank is made known to them; (vi) they have evaluated the effectiveness of their internal controls; and (vii) they have disclosed to ▇▇▇▇▇▇ & Company, including LLP and the Prospectusaudit committee (A) all significant deficiencies in the design or operation of internal controls which could adversely affect the Company’s and the Bank’s ability to record, process, summarize, and report financial data, and have identified for the Company’s and the Bank’s auditors any material weaknesses in internal controls and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s and the Bank’s internal controls.
(f) At the time of the execution of this Agreement, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C., LLP a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: that (i) they are independent public accountants with respect to the MHC, the Company and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public Accountants, the Securities Act and Act, the Securities Act Regulations, and the Conversion Regulations and they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions opinion therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. LLP set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC Bank included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and Act, the Securities Act Regulations and the Conversion Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” or under “Recent Developments” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions caption or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC and the Bank or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings of the MHC and the Bank, in each case as compared with the amounts shown in the consolidated statements of financial conditions balance sheet included in the Registration Statement or, (D) during the period from [ ]June 30, 2014 2010 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCBank, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and the General Disclosure Package, including the Prospectus Prospectus, and which are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the MHC Company and the Bank identified in such letter.
(g) At the Closing Time, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. LLP a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five days prior to the Closing Time.
(h) At the Closing Time, the Securities shall have been approved for trading listing on the Nasdaq Capital Market OTC Bulletin Board upon notice of issuance.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by Federal, Massachusetts or New York or Maryland authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHCBank, the Bank MHC and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC Bank and the Bank MHC herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC Mid-Tier Company, the Bank and the Bank MHC made pursuant to the provisions hereof, to the performance by the Company, the MHC Mid-Tier Company, the Bank and the Bank MHC of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, threatened by the FRB, Commission or the FRB and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇ Lovells US Lord LLP, counsel for the Company, the MHC Mid-Tier Company, the Bank and the BankMHC, in form and substance satisfactory to counsel for the Agent, set forth on as attached hereto as Exhibit A hereto.A.
(2) The favorable opinion, dated as of the Closing Time, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ Procter LLP, counsel for the Agent, with respect as to such matters as the Agent may reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇▇▇▇ Lovells US Lord LLP and Silver, ▇▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇ Procter LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial financial, pro forma, appraisal or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial financial, pro forma, appraisal or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective effective, as of the date of the Prospectus or at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇▇ Lovells US Lord LLP and Silver, ▇▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇ Procter LLP may rely as to matters of fact on certificates of officers and directors of the Company, the MHC and the Bank ▇▇▇▇▇ Parties and certificates of public officials. Silver, and ▇▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇ Procter LLP may also rely on the opinion of ▇▇▇▇▇ Lovells US Lord LLP.
(c) At the Closing Time referred to in Section 22 hereof, the Company, the MHC Mid-Tier Company, the Bank and the Bank MHC shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion FRB Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company Company, the Mid-Tier Company, the Bank or the Bank MHC by the FRB, FRB or any other regulatory authority other than those which the FRB or the Division permits any such other regulatory authority permit to be completed after the consummation of the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC and the Bank, considered as one enterpriseMaterial Adverse Effect, whether or not arising in the ordinary course of business consistent with past practicebusiness, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the Mid-Tier Company, the Bank and the MHC and of the Bank and the Chief Financial Officer of the Company, of the Mid-Tier Company, the Bank and the MHC, and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse changeMaterial Adverse Effect, (ii) there shall have been no material transaction entered into by the Company, the MHC Mid-Tier Company, the Bank or the Bank MHC from the latest date as of which the financial condition of the Company, the MHC Mid-Tier Company or the Bank, as set forth in the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither none of the Company nor Company, the Mid-Tier Company, the Bank or the MHC shall have received from the FRB FRB, the OCC or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which would materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC Mid-Tier Company the Bank or the BankMHC, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC Mid-Tier Company, the Bank and the Bank has MHC have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company, the Mid-Tier Company, the Bank or the MHC, threatened by the Commission, and (vii) no order suspending the Subscription FRB’s approval of the Holding Company Application and Community Offering the Conversion Application or the Syndicated Community Offering or the authorization for final use of the Prospectus transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to their knowledgethe knowledge of the Company, the Mid-Tier Company, the Bank or the MHC, threatened by the FRB and no person has sought to obtain regulatory or judicial review of the action of the Division FRB in approving the Plan in accordance with the FRB Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Conversion Application or the Holding Company Application, and (viii) no order suspending the Subscription and Community Offering or the Syndicated Offering or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the FRB.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the Mid-Tier Company, the Bank and the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC Bank and of the BankMHC, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the consolidated financial statements and other financial information included in the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package fairly present the financial condition and results of operations of the MHC Mid-Tier Company and the subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the General Disclosure PackageProspectus; (iv) they are responsible for establishing and maintaining disclosure controls and procedures; (v) they have designed such disclosure controls and procedures to ensure that material information relating to the Mid-Tier Company and the Bank is made known to them; (vi) they have evaluated the effectiveness of their disclosure controls and procedures; and (vii) they have disclosed to Mazars and the audit committee (A) all significant deficiencies in the design or operation of disclosure controls and procedures which are reasonably likely to adversely affect the Mid-Tier Company’s and the Bank’s ability to record, including process, summarize, and report financial data, and have identified for the ProspectusMid-Tier Company’s and the Bank’s independent registered public accounting firm any material weaknesses in disclosure controls and procedures and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Mid-Tier Company’s and the Bank’s disclosure controls and procedures.
(f) At the time As of the execution of this Agreementdate hereof, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C., Mazars a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHCCompany, the Company Mid-Tier Company, the Bank and the Bank MHC within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the FRB Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. Mazars set forth in detail in such letter, nothing has come to their attention which causes them to believe that that, except as set forth in such letter, (A) the unaudited consolidated financial statements and supporting schedules of the MHC included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” or under “Recent Developments” in the Registration Statement Prospectus and Prospectus the General Disclosure Package do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited consolidated financial statements included in the Registration Statement, the Prospectus and the General Disclosure Package, (CB) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any change in the common stock or preferred stock, increase in advances with the consolidated Federal Home Loan Bank of New York or other long-term or short-term debt of the MHC and the Bank or any decrease decreases in consolidated total assets, the allowance for of loan losses, total loans, total deposits or retained earnings stockholders’ equity of the MHC and the BankMid-Tier Company, in each case as compared with the amounts shown in the consolidated September 30, 2021 unaudited statements of financial conditions included condition presented under the “Recent Developments” caption in the Registration Statement or, (D) during the period from [ ]October 1, 2014 2021 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total consolidated interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCMid-Tier Company or increases in interest expense or the provision for loan losses, except in all instances for increases or decreases which the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement Statement, Prospectus and the General Disclosure Package, including the Prospectus Package and which that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the MHC Company, the Mid-Tier Company, the Bank and the Bank MHC identified in such letter.
(g) At the Closing Time, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. Mazars a letter, letter dated as of the Closing Time, to the effect that they reaffirm it reaffirms the statements made in the letter letters furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(h) The “lock-up” agreements, each substantially in the form of Exhibit B hereto, between the Agent and the persons set forth on Exhibit C hereto, relating to sales and certain other dispositions of shares of Common Stock, Mid-Tier Company Common Stock or certain other securities, shall be delivered to the Agent on or before the date hereof and shall be in full force and effect at the Closing Time.
(i) At the Closing Time, the Securities and the Exchange Shares shall have been approved for trading listing on the Nasdaq Capital Market upon notice of issuanceStock Market.
(ij) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(jk) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Exchange Shares and the contribution of the Foundation Shares to the Foundation as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Exchange Shares and the contribution of the Foundation Shares to the Foundation as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(kl) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either any of the NYSE MKT, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either any of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by Federal, Massachusetts either Federal or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The CompanyMHC, the MHCCompany, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy in of the representations and warranties of the CompanyMHC, the MHC Company and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy in of the statements of officers and trustees of the MHC, the officers and directors of the Company, the MHC Company and the Bank made pursuant to the provisions hereof, to the performance by the CompanyMHC, the MHC Company and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, ; no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, or the FRB, ; and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of L▇▇▇ ▇▇▇▇▇ Lovells US LLP▇▇, PC, counsel for the CompanyMHC, the MHC Company and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on as attached hereto as Exhibit A hereto.C.
(2) The favorable opinion, dated as of the Closing Time, of Silver, F▇▇▇▇▇▇▇, Taff & T▇▇▇▇▇▇ Procter LLP, counsel for the Agent, with respect as to such matters as the Agent may reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇L▇▇▇ Lovells US LLP and ▇▇▇▇▇▇, PC and Silver, F▇▇▇▇▇▇▇, T▇▇▇ Procter & T▇▇▇▇▇▇ LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial financial, pro forma, appraisal or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial financial, pro forma, appraisal or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective effective, as of the date of the Prospectus or at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇L▇▇▇ Lovells US LLP and ▇▇▇▇▇▇, PC and Silver, F▇▇▇▇▇▇▇, T▇▇▇ Procter & T▇▇▇▇▇▇ LLP may rely as to matters of fact on certificates of officers and directors of the CompanyMHC, the MHC Company and the Bank and certificates of public officials. Silver, and F▇▇▇▇▇▇▇, Taff & T▇▇▇▇▇▇ Procter LLP may also rely on the opinion of L▇▇▇ ▇▇▇▇▇ Lovells US LLP▇▇, PC.
(c) At the Closing Time referred to in Section 22 hereof, the Company, the MHC Bank and the Bank MHC shall have completed in all material respects the conditions precedent to the Conversion Reorganization in accordance with the Plan, the applicable Conversion Regulations FRB Regulations, New York Banking Law and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Reorganization imposed upon the Company Company, the MHC or the Bank by the FRB, the New York Department or any other regulatory authority other than those which the FRB FRB, the New York Department or the Division permits any such other regulatory authority permit to be completed after the ConversionOfferings.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC and the Bank, considered as one enterpriseMaterial Adverse Effect, whether or not arising in the ordinary course of business consistent with past practicebusiness, and the Agent shall have received a certificate of the President and Chief Executive Officer of the CompanyMHC, of the MHC Company and of the Bank and the Chief Financial Officer of the Company, of the MHC, the Company and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse changeMaterial Adverse Effect, (ii) there shall have been no material transaction entered into by the CompanyMHC, the MHC Company or the Bank from the latest date as of which the financial condition of the Company, the MHC Company or the Bank, as set forth in the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package other than transactions referred to or contemplated therein and transactions in the ordinary course of business substantially consistent with past practice, (iii) neither none of the Company nor Company, the MHC or the Bank shall have received from the FRB FRB, the New York Department or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which would materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC or and the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC and the Bank has have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the Knowledge of the Company, the MHC or the Bank, threatened by the Commission, and (vii) no order suspending the Subscription and Community Offering FRB’s approval of the Holding Company Application or the Syndicated Community Offering transactions contemplated thereby or the authorization for final use New York Department’s approval of the Prospectus New York Application or the transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to their knowledgethe knowledge of the Company, the MHC or the Bank, threatened by the FRB or the New York Department and no person has sought to obtain regulatory or judicial review of the action of the Division FRB or the New York Department in approving the Plan in accordance with the FRB Regulations and New York Banking Law nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Holding Company Application or the New York Department approving the New York Application, and (viii) no order suspending the Subscription and Community Offering, the Syndicated Offering or the Public Offering or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the FRB or the New York Department.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of the CompanyMHC, of the MHC Company and of the Bank and the Chief Financial Officer of the CompanyMHC, of the MHC Company and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package fairly present the financial condition and results of operations of the MHC and the subsidiaries Company as of and for the dates and periods covered by the Registration Statement and the General Disclosure PackageProspectus; (iv) they are responsible for establishing and maintaining disclosure controls and procedures; (v) they have designed such disclosure controls and procedures to ensure that material information relating to the Company, including the ProspectusMHC and the Bank is made known to them; (vi) they have evaluated the effectiveness of their disclosure controls and procedures; and (vii) they have disclosed to B▇▇▇▇ T▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLP and the audit committee (A) all significant deficiencies in the design or operation of disclosure controls and procedures which are reasonably likely to adversely affect the Bank’s ability to record, process, summarize, and report financial data, and have identified for the Company’s and the Bank’s independent registered public accounting firm any material weaknesses in disclosure controls and procedures and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s and the Bank’s disclosure controls and procedures.
(f) At the time As of the execution of this Agreementdate hereof, the Agent shall have received from B▇▇▇▇ T▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C., LLP a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHC, the Company and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the FRB Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇S▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and B▇▇▇▇ T▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. LLP set forth in detail in such letterletters, nothing has come to their attention which causes them to believe that that, except as set forth in such letter, (A) the unaudited consolidated financial statements and supporting schedules of the MHC included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” or under “Recent Developments” in the Registration Statement Prospectus and Prospectus the General Disclosure Package do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited consolidated financial statements included in the Registration Statement, the Prospectus and the General Disclosure Package, (CB) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC and the Bank or any decrease in consolidated total assets, investment securities, total loans, the allowance for loan losses, total deposits or retained earnings total stockholders’ equity of the MHC and the BankMHC, in each case as compared with the amounts shown in the June 30, 2018 unaudited consolidated statements of financial conditions included condition presented in the Registration Statement or, (DC) during the period from [ ]June 30, 2014 2018 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense losses or net income of the MHC, except in all instances for increases or decreases which the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions opinion and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement Statement, Prospectus and the General Disclosure Package, including the Prospectus Package and which that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the MHC Company and the Bank identified in such letter.
(g) At the Closing Time, the Agent shall have received from B▇▇▇▇ T▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. LLP a letter, letter dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five three (3) business days prior to the Closing Time.
(h) At As of the date hereof and at the Closing Time, the Securities Agent shall have been approved for trading on received from the Nasdaq Capital Market upon notice Company’s Chief Financial Officer a certificate dated the respective dates of issuancedelivery thereof and addressed to the Agent, in form and substance satisfactory to the Agent, with respect to certain financial information of the Company and the Subsidiaries included in the Registration Statement, the Prospectus and the Disclosure Package, in form and substance satisfactory to the Agent.
(i) At the Closing Time, the Agent Securities and the Foundation Shares shall have been approved for listing on the Nasdaq Stock Market.
(j) At the Closing Time, the MHC shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(jk) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the issuance and contribution of the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(kl) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either any of the NYSE MKT, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either any of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by Federal, Massachusetts either Federal or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the Mid-Tier Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and the issuance of the Exchange Shares and all obligations of the Agent Agents hereunder are subject to the accuracy of the representations and warranties of the Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the Mid-Tier Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, Statement shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, Prospectus shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the FRB, Commission or the OTS and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent Agents shall have received:
(1) The favorable opinion, dated as of the Closing Time, of Silver, ▇▇▇▇▇▇▇▇ Lovells US LLP& ▇▇▇▇, L.L.P, counsel for the Company, the Mid-Tier Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on Agents as attached hereto as Exhibit A hereto.A.
(2) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇▇▇▇ Procter LLP▇▇▇▇▇▇▇▇ LLP , counsel for the AgentAgents, with respect to such matters as the Agent may reasonably require.attached hereto as Exhibit B.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Silver, ▇▇▇▇▇▇▇▇ Lovells US LLP & ▇▇▇▇, L.L.P. and ▇▇▇▇▇▇▇▇▇▇ Procter ▇▇▇▇▇▇▇▇ LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at Closing Time, or (if applicable) that the Closing General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter LLP 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, and ▇▇▇▇▇▇▇ Procter LLP may also rely on the opinion of ▇▇▇▇▇ Lovells US LLP.
(c) At the Closing Time referred to in Section 22 hereof, the Company, the Mid-Tier Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion OTS Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company Company, the Mid-Tier Company, the MHC or the Bank by the FRBOTS, or any other regulatory authority other than those which the FRB or the Division OTS permits to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the Mid-Tier Company, the MHC and the Bank, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent Agents shall have received a certificate of the President and Chief Executive Officer of the Company, of the Mid-Tier Company, of the MHC and of the Bank and the Chief Financial Officer chief financial or chief accounting officer of the Company, of the MHCMid-Tier Company, of the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the Mid-Tier Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the Mid-Tier Company, the MHC or the Bank, as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, practice (iii) neither the Company Company, the Mid-Tier Company, the MHC nor the Bank shall have received from the FRB OTS any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the AgentAgents) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the Mid-Tier Company, the MHC or the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the Mid-Tier Company, the MHC and the Bank has have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission, Commission and (vii) no order suspending the Subscription and Community Offering or the Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or, to their knowledge, or threatened by the FRB OTS and no person has sought to obtain regulatory or judicial review of the action of the Division OTS in approving the Plan in accordance with the OTS Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB OTS in approving the Holding Company Conversion Application.
(e) At the Closing Time, the Agent Agents shall have received a certificate of the President and Chief Executive Officer and President of the Mid-Tier Company, of the MHC Company and of the Bank and the Chief Financial Officer of the Mid-Tier Company, of the MHC Company and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus fairly present the financial condition and results of operations of the MHC Mid-Tier Company and the subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus.
(f) At the time As of the execution of this Agreementdate hereof, the Agent Agents shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C., Howath LLP a letter dated such date, in form and substance satisfactory to the AgentAgents, to the effect that: (i) for the three-year period ended December 31, 2009, they are were the independent public accountants with respect to the MHCCompany, the Company Mid-Tier Company, the MHC and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the OTS Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements for the three-year period ended December 31, 2009 and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations;
(g) As of the date hereof, the Agents shall have received from Ernst & Young LLP a letter dated such date, in form and substance satisfactory to the Agents, to the effect that: (i) for the three-month period ended March 31, 2010, they were the independent public accountants with respect to the Company, the Mid-Tier Company, the MHC and the Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the OTS Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (iiiii) based upon limited procedures as agreed upon by the Agent Agents and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Ernst & Company, P.C. Young LLP set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC Mid-Tier Company included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and Act, the Securities Act Regulations and the OTS Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-long term or short-short term debt of the MHC and the Bank Mid-Tier Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings net worth of the MHC and the BankMid-Tier Company, in each case as compared with the amounts shown in the March 31, 2010 consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from [ ]March 31, 2014 2010 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCMid-Tier Company, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which that are specified by the AgentAgents, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the Mid-Tier Company, the MHC and the Bank identified in such letter.
(gh) At the Closing Time, the Agent Agents shall have received from ▇▇▇▇▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇ & Company, P.C. LLP a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(hi) At Closing Time, the Agents shall have received from Ernst & Young LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (g) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to Closing Time.
(j) At Closing Time, the Securities and Exchange Shares shall have been approved for trading quotation on the Nasdaq Capital Global Select Market upon notice of issuance.
(ik) At the Closing Time, the Agent Agents shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(jl) At the Closing Time, counsel for the Agent Agents shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Exchange Shares as herein contemplated shall be satisfactory in form and substance to the Agent Agents and counsel for the AgentAgents.
(km) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the AgentAgents, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, Massachusetts Maryland or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the Mid-Tier Company, the MHC, the Bank and the Agent Agents agree that the issuance and the sale of Securities and the issuance of the Exchange Shares and all obligations of the Agent Agents hereunder are subject to the accuracy of the representations and warranties of the Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the Mid-Tier Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the FRB, Commission or the Federal Reserve Board and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent Agents shall have received:
(1) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇ ▇▇▇▇▇▇ Lovells US LLP▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., counsel for the Company, the Mid-Tier Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on Agents as attached hereto as Exhibit A hereto.A.
(2) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇▇▇▇ Procter ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the AgentAgents, with respect as to such matters as the Agent may Agents shall reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇▇▇ ▇▇▇▇▇▇ Lovells US LLP ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. and ▇▇▇▇▇▇▇▇▇▇ Procter ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at Closing Time, or (if applicable) that the Closing General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter LLP 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, and ▇▇▇▇▇▇▇ Procter LLP may also rely on the opinion of ▇▇▇▇▇ Lovells US LLP.
(c) At the Closing Time referred to in Section 22 hereof, the Company, the Mid-Tier Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion FRB Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company Company, the Mid-Tier Company, the MHC or the Bank by the FRBFederal Reserve Board, or any other regulatory authority other than those which the FRB or the Division Federal Reserve Board permits to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the Mid-Tier Company, the MHC and the Bank, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent Agents shall have received a certificate of the President and Chief Executive Officer of the Company, of the Mid-Tier Company, of the MHC and of the Bank and the Executive Vice President, Chief Operating and Chief Financial Officer of the Company, of the MHCMid-Tier Company, of the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the Mid-Tier Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the Mid-Tier Company, the MHC or the Bank, as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, practice (iii) neither the Company Company, the Mid-Tier Company, the MHC nor the Bank shall have received from the FRB Federal Reserve Board, the OCC or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the AgentAgents) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the Mid-Tier Company, the MHC or the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the Mid-Tier Company, the MHC and the Bank has have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission, Commission and (vii) no order suspending the Subscription and Community Offering Federal Reserve Board’s approval of the Conversion Application, or the Syndicated Community Offering or the authorization for final use of the Prospectus transactions contemplated thereby, has been issued and no proceedings for that purpose have been initiated or, to their knowledge, or threatened by the FRB Federal Reserve Board and no person has sought to obtain regulatory or judicial review of the action of the Division Federal Reserve Board in approving the Plan in accordance with the FRB Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB Federal Reserve Board in approving the Holding Company Conversion Application.
(e) At the Closing Time, the Agent Agents shall have received a certificate of the President and Chief Executive Officer of the Mid-Tier Company, of the MHC Company and of the Bank and the Executive Vice President and Chief Financial Officer of the Mid-Tier Company, of the MHC Company and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus fairly present the financial condition and results of operations of the MHC Mid-Tier Company and the subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus.
(f) At the time As of the execution of this Agreementdate hereof, the Agent Agents shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C., KPMG LLP a letter dated such date, in form and substance satisfactory to the AgentAgents, to the effect that: (i) they are independent public accountants with respect to the MHCCompany, the Company Mid-Tier Company, the MHC and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the FRB Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent Agents and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. KPMG LLP set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC Mid-Tier Company included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and Act, the Securities Act Regulations and the FRB Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” or under “Recent Developments” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-long term or short-short term debt of the MHC and the Bank Mid-Tier Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings net worth of the MHC and the BankMid-Tier Company, in each case as compared with the amounts shown in the June 30, 2012 consolidated statements of financial conditions balance sheets included in the Registration Statement or, (D) during the period from [ ]June 30, 2014 2012 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCMid-Tier Company, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which that are specified by the AgentAgents, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the Mid-Tier Company, the MHC and the Bank identified in such letter.
(g) The “lock-up” agreements, each substantially in the form of Exhibit C hereto, between the Agents and the persons set forth on Exhibit D hereto, relating to sales and certain other dispositions of shares of Common Stock, Mid-Tier Company Common Stock or certain other securities, shall be delivered to the Agents on or before the date hereof and shall be in full force and effect on the Closing Time.
(h) At the Closing Time, the Agent Agents shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. KPMG LLP a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(hi) At the Closing Time, the Securities and Exchange Shares shall have been approved for trading quotation on the Nasdaq Capital Global Select Market upon notice of issuance.
(ij) At the Closing Time, the Agent Agents shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisalAppraisal.
(jk) At the Closing Time, counsel for the Agent Agents shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Exchange Shares as herein contemplated shall be satisfactory in form and substance to the Agent Agents and counsel for the AgentAgents.
(kl) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the AgentAgents, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, Massachusetts New Jersey or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The CompanyMHC, the MHCCompany, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy in of the representations and warranties of the CompanyMHC, the MHC Company and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy in of the statements of officers and trustees of the MHC, the officers and directors of the Company, the MHC Company and the Bank made pursuant to the provisions hereof, to the performance by the CompanyMHC, the MHC Company and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, ; no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, or the FRB, ; and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of L▇▇▇ ▇▇▇▇▇ Lovells US LLP▇▇, PC, counsel for the CompanyMHC, the MHC Company and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on as attached hereto as Exhibit A hereto.C.
(2) The favorable opinion, dated as of the Closing Time, of Silver, F▇▇▇▇▇▇▇, Taff & T▇▇▇▇▇▇ Procter LLP, counsel for the Agent, with respect as to such matters as the Agent may reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇L▇▇▇ Lovells US LLP and ▇▇▇▇▇▇, PC and Silver, F▇▇▇▇▇▇▇, T▇▇▇ Procter & T▇▇▇▇▇▇ LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial financial, pro forma, appraisal or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial financial, pro forma, appraisal or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective effective, as of the date of the Prospectus or at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇L▇▇▇ Lovells US LLP and ▇▇▇▇▇▇, PC and Silver, F▇▇▇▇▇▇▇, T▇▇▇ Procter & T▇▇▇▇▇▇ LLP may rely as to matters of fact on certificates of officers and directors of the CompanyMHC, the MHC Company and the Bank and certificates of public officials. Silver, and F▇▇▇▇▇▇▇, Taff & T▇▇▇▇▇▇ Procter LLP may also rely on the opinion of L▇▇▇ ▇▇▇▇▇ Lovells US LLP▇▇, PC.
(c) At the Closing Time referred to in Section 22 hereof, the Company, the MHC Bank and the Bank MHC shall have completed in all material respects the conditions precedent to the Conversion Reorganization in accordance with the Plan, the applicable Conversion Regulations FRB Regulations, New York Banking Law and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Reorganization imposed upon the Company Company, the MHC or the Bank by the FRB, the New York Department or any other regulatory authority other than those which the FRB FRB, the New York Department or the Division permits any such other regulatory authority permit to be completed after the ConversionOfferings.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC and the Bank, considered as one enterpriseMaterial Adverse Effect, whether or not arising in the ordinary course of business consistent with past practicebusiness, and the Agent shall have received a certificate of the President and Chief Executive Officer of the CompanyMHC, of the MHC Company and of the Bank and the Chief Financial Officer of the Company, of the MHC, the Company and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse changeMaterial Adverse Effect, (ii) there shall have been no material transaction entered into by the CompanyMHC, the MHC Company or the Bank from the latest date as of which the financial condition of the Company, the MHC Company or the Bank, as set forth in the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package other than transactions referred to or contemplated therein and transactions in the ordinary course of business substantially consistent with past practice, (iii) neither none of the Company nor Company, the MHC or the Bank shall have received from the FRB FRB, the New York Department or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which would materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC or and the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC and the Bank has have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the Knowledge of the Company, the MHC or the Bank, threatened by the Commission, and (vii) no order suspending the Subscription and Community Offering FRB’s approval of the Holding Company Application or the Syndicated Community Offering transactions contemplated thereby or the authorization for final use New York Department’s approval of the Prospectus New York Application or the transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to their knowledgethe knowledge of the Company, the MHC or the Bank, threatened by the FRB or the New York Department and no person has sought to obtain regulatory or judicial review of the action of the Division FRB or the New York Department in approving the Plan in accordance with the FRB Regulations and New York Banking Law nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Holding Company Application or the New York Department approving the New York Application, and (viii) no order suspending the Subscription and Community Offering, the Syndicated Offering or the Public Offering or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the FRB or the New York Department.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of the CompanyMHC, of the MHC Company and of the Bank and the Chief Financial Officer of the CompanyMHC, of the MHC Company and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package fairly present the financial condition and results of operations of the MHC and the subsidiaries Company as of and for the dates and periods covered by the Registration Statement and the General Disclosure PackageProspectus; (iv) they are responsible for establishing and maintaining disclosure controls and procedures; (v) they have designed such disclosure controls and procedures to ensure that material information relating to the Company, including the ProspectusMHC and the Bank is made known to them; (vi) they have evaluated the effectiveness of their disclosure controls and procedures; and (vii) they have disclosed to B▇▇▇▇ T▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLP and the audit committee (A) all significant deficiencies in the design or operation of disclosure controls and procedures which are reasonably likely to adversely affect the Bank’s ability to record, process, summarize, and report financial data, and have identified for the Company’s and the Bank’s independent registered public accounting firm any material weaknesses in disclosure controls and procedures and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s and the Bank’s disclosure controls and procedures.
(f) At the time As of the execution of this Agreementdate hereof, the Agent shall have received from B▇▇▇▇ T▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C., LLP a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHC, the Company and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the FRB Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇S▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and B▇▇▇▇ T▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. LLP set forth in detail in such letterletters, nothing has come to their attention which causes them to believe that that, except as set forth in such letter, (A) the unaudited consolidated financial statements and supporting schedules of the MHC included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” or under “Recent Developments” in the Registration Statement Prospectus and Prospectus the General Disclosure Package do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited consolidated financial statements included in the Registration Statement, the Prospectus and the General Disclosure Package, (CB) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC and the Bank or any decrease in consolidated total assets, investment securities, total loans, the allowance for loan losses, total deposits or retained earnings total stockholders’ equity of the MHC and the BankMHC, in each case as compared with the amounts shown in the September 30, 2018 unaudited consolidated statements of financial conditions included condition presented under the “Recent Developments” caption in the Registration Statement or, (DC) during the period from [ ]September 30, 2014 2018 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHC, or increases in interest expense, or the provisions for loan losses or except in all instances for increases or decreases which the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions opinion and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement Statement, Prospectus and the General Disclosure Package, including the Prospectus Package and which that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the MHC Company and the Bank identified in such letter.
(g) At the Closing Time, the Agent shall have received from B▇▇▇▇ T▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. LLP a letter, letter dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five three (3) business days prior to the Closing Time.
(h) At the Closing Time, the Securities and the Foundation Shares shall have been approved for trading listing on the Nasdaq Capital Market upon notice of issuanceStock Market.
(i) At the Closing Time, the Agent MHC shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the issuance and contribution of the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either any of the NYSE MKT, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either any of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by Federal, Massachusetts either Federal or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, Statement shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the Commission, no order suspending the Offerings or the authorization for final use effectiveness of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, Prospectus shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the FRBCommission or the OTS, and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinionopinion contained in Exhibit 1 hereof, dated as of the Closing Time, of ▇▇▇▇▇▇▇ Lovells US ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special counsel for the Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on Exhibit A hereto.
(2) The favorable opinionopinion contained in Exhibit 2 hereof, dated as of the Closing Time, of ▇▇▇▇▇▇▇ Procter LLPSpidi & ▇▇▇▇▇, PC, counsel for the FMS Parties, in form and substance satisfactory to the Agent.
(3) The favorable opinion contained in Exhibit 3 hereof, dated as of Closing Time, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, PC, counsel for the Agent, with respect in form and substance satisfactory to such matters as the Agent may reasonably requireAgent.
(34) In addition to giving their opinions required by subsections (b)(l) and (b)(2b)(3), respectively, of this Section, ▇▇▇▇▇▇▇ Lovells US ▇▇▇▇▇▇ & Aguggia LLP and ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Procter LLP & ▇▇▇▇▇▇, P.C. shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at the Closing Time, or that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇▇▇▇ Lovells US LLP ▇▇▇▇▇▇ & Aguggia LLP, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. and ▇▇▇▇▇▇▇ Procter LLP Spidi and ▇▇▇▇▇, PC may rely as to matters of fact on certificates of officers and directors of the Company, the MHC MHC, the Bank and the Bank Subsidiaries, or the FMS Parties, as applicable, and certificates of public officials, and ▇▇▇▇ ▇▇▇▇▇▇ Procter LLP ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. may also rely on the opinion of ▇▇▇▇▇▇▇ Lovells US LLP▇▇▇▇▇▇ & Aguggia LLP with respect to matters set forth in paragraphs (i), (ii), (iii), (vi), (vii), (xviii) and (xix) therein.
(c) At the Closing Time referred to in Section 2, the Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion Offerings in accordance with the Plan, the applicable Conversion OTS Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Offerings imposed upon the Company Company, the MHC or the Bank by the FRBOTS, or any other regulatory authority other than those which the FRB or the Division OTS permits to be completed after the ConversionOfferings.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC MHC, the Bank and the BankSubsidiaries, considered as one enterprise, or the FMS Parties, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC and of the Bank and the Chief Financial or Chief Accounting Officer of the Company, of the MHC, MHC and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the MHC MHC, the Bank or the Bank FMS Parties from the latest date as of which the financial condition of the Company, the MHC or the Bank, as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, practice (iii) neither the Company Company, the MHC, the Bank nor the Bank FMS Parties shall have received from the FRB OTS, the Department of Banking or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC or the Bank, considered as one enterprise, or the FMS Parties, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC and the Bank has complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or or, to the best of their knowledge after inquiry, threatened by the Commission, and (vii) no order suspending the Subscription and Community Offering or the Syndicated Community Offering or the authorization for final use of the Prospectus has been issued issue d and no proceedings for that purpose have been initiated or, to the best of their knowledge, threatened by the FRB OTS and no person has sought to obtain regulatory or judicial review of the action of the Division OTS in approving the Plan nor has any person sought to obtain regulatory or judicial review of in accordance with the action of the FRB in approving the Holding Company ApplicationOTS Regulations.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer and President of the Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus fairly present the financial condition and results of operations of the MHC Company and any subsidiary, and the subsidiaries FMS Parties, as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus.
(f1) At the time of the execution of this Agreement, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Deloitte & Company, P.C., Touche LLP a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the Company, the MHC, the Company Bank and the Bank Subsidiaries within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the OTS Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Sarbanes Oxley Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Deloitte & Company, P.C. Touche LLP set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC Company included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and Act, the Securities Act Regulations and the OTS Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other DataData of Beneficial Mutual Bancorp” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC and the Bank Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings stockholders’ equity of the MHC and the BankCompany, in each case as compared with the amounts shown in the consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from [ ]December 31, 2014 2006 to a specified date not more than five (5) days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCCompany, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the MHC and the Bank identified in such letter.
(g2) At the Closing Timetime of the execution of this Agreement, the Agent shall have received from ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ & CompanyLLP a letter dated such date, P.C. a letter, dated as of in form and substance satisfactory to the Closing TimeAgent, to the effect that: (i) they are independent public accountants with respect to FMS, FM Bank and the FMS Subsidiaries within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the OTS Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Sarbanes Oxley Act; (ii) it is their opinion that they reaffirm the consolidated financial statements made and supporting schedules included in the letter furnished pursuant Registration Statement and covered by their opinions therein comply as to subsection form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (fiii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of this SectionFMS included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, except the Securities Act Regulations and the OTS Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data of FMS Financial” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date referred to shall be a date not more than five (5) days prior to the Closing Timedate of this Agreement, there has been any increase in the long-term or short-term debt of FMS or any decrease in consolidated total assets, the allowance for loan losses, total deposits or stockholders’ equity of FMS, in each case as compared with the amounts shown in the consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from December 31, 2006 to a specified date not more than five (5) days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of FMS, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and Prospectus and which are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of FMS and FM Bank widentified in such letter.
(h3) At the Closing Time, time of the Securities shall have been approved for trading on the Nasdaq Capital Market upon notice execution of issuance.
(i) At the Closing Timethis Agreement, the Agent shall have received from PricewaterhouseCoopers LLP a letter from the Appraiserdated such date, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to FMS, FM Bank and the FMS Subsidiaries within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the OTS Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Sarbanes Oxley Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by Federal, Massachusetts or New York authorities.PricewaterhouseCooper
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHCMid-Tier Company, the Bank Bank, the MHC and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC Mid-Tier Company, the Bank and the Bank MHC herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC Mid-Tier Company, the Bank and the Bank MHC made pursuant to the provisions hereof, to the performance by the Company, the MHC Mid-Tier Company, the Bank and the Bank MHC of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-post- effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, threatened by the FRBCommission, the Department or the FRB and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇ ▇▇ Lovells US LLP▇▇▇▇▇, PC, counsel for the Company, the MHC Mid-Tier Company, the Bank and the BankMHC, in form and substance satisfactory to counsel for the Agent, set forth on as attached hereto as Exhibit A hereto.A.
(2) The favorable opinion, dated as of the Closing Time, of Silver, ▇▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇ Procter LLP, counsel for the Agent, with respect as to such matters as the Agent may reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇▇▇ ▇▇▇▇▇▇, PC and Silver, ▇▇▇▇▇▇▇▇, ▇▇▇▇ Lovells US LLP and & ▇▇▇▇▇▇▇ Procter LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial financial, pro forma, appraisal or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial financial, pro forma, appraisal or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective effective, as of the date of the Prospectus or at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇ ▇▇ Lovells US LLP ▇▇▇▇▇, PC and ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ Procter & ▇▇▇▇▇▇▇ LLP may rely as to matters of fact on certificates of officers and directors of the Company, the MHC Company and the Bank and certificates of public officials. Silver, and ▇▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇ Procter LLP may also rely on the opinion of ▇▇▇▇ ▇▇ Lovells US LLP▇▇▇▇▇, PC.
(c) At the Closing Time referred to in Section 22 hereof, the Company, the MHC Mid-Tier Company, the Bank and the Bank MHC shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations, the applicable FRB Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company Company, the Mid-Tier Company, the Bank or the Bank MHC by the FRBDepartment, the FRB or any other regulatory authority other than those which the Department, the FRB or the Division permits any such other regulatory authority permit to be completed after the consummation of the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC and the Bank, considered as one enterpriseMaterial Adverse Effect, whether or not arising in the ordinary course of business consistent with past practicebusiness, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC and of Mid-Tier Company, the Bank and the Chief Financial Officer MHC and the Treasurer of the Company, of the Mid-Tier Company, the Bank and the MHC, and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse changeMaterial Adverse Effect, (ii) there shall have been no material transaction entered into by the Company, the MHC Mid-Tier Company, the Bank or the Bank MHC from the latest date as of which the financial condition of the Company, the MHC Mid-Tier Company, the Bank or the BankMHC, as set forth in the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither none of the Company nor Company, the Mid-Tier Company, the Bank or the MHC shall have received from the FRB FRB, the Department or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which would materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC Mid-Tier Company, the Bank or the BankMHC, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC Mid-Tier Company, the Bank and the Bank has MHC have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or or, to the knowledge of the Company, the Mid-Tier Company, the Bank and the MHC, threatened by the Commission, (vii) no order suspending the FRB’s approval of the Holding Company Application or the transactions contemplated thereby or the Department’s or the FRB’s approval of the Conversion Applications, as applicable, or the transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company, the Mid-Tier Company, the Bank or the MHC, threatened by the FRB or the Department and no person has sought to obtain regulatory or judicial review of the action of the Department or the FRB in approving the Plan in accordance with the Conversion Regulations nor has any person sought to obtain regulatory or judicial review of the action of the Department or the FRB in approving the Conversion Applications, as applicable, or the FRB in approving the Holding Company Application, and (viiviii) no order suspending the Subscription and Community Offering Offerings or the Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or, to their knowledge, threatened by the FRB and no person has sought to obtain regulatory Department or judicial review of the action of the Division in approving the Plan nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Holding Company ApplicationFRB.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC and of Mid-Tier Company, the Bank and the Chief Financial Officer MHC and the Treasurer of the Company, of the MHC Mid-Tier Company, the Bank and of the BankMHC, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the consolidated financial statements and other financial information included in the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package fairly present the financial condition and results of operations of the MHC MHC, the Mid-Tier Company and the subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus.
(f) At the time As of the execution of this Agreementdate hereof, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ & Company, P.C., a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHCCompany, the Company Mid-Tier Company, the Bank and the Bank MHC within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the Conversion Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions opinion therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ & Company, P.C. set forth in detail in such letter, nothing has come to their attention which causes them to believe that that, except as set forth in such letter, (A) the unaudited consolidated financial statements and supporting schedules of the MHC included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income loss set forth under “Selected Consolidated Financial and Other Data” or under “Recent Developments” in the Registration Statement Prospectus and Prospectus the General Disclosure Package do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited consolidated financial statements included in the Registration Statement, the Prospectus and the General Disclosure Package, (CB) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC and Mid-Tier Company, the Bank or the MHC or any decrease in consolidated total assets, the allowance for loan credit losses, total deposits or retained earnings equity of the MHC and Mid-Tier Company, the BankBank or the MHC, in each case as compared with the amounts shown in the December 31, 2023 audited consolidated statements of financial conditions included in the Registration Statement balance sheets or, (DC) during the period from [ ]December 31, 2014 2023 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan credit losses, income (loss) before income tax expense (benefit) or net income (loss) of the MHCMHC or increases in interest expense or the provision for credit losses, except in all instances for increases or decreases which the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement Statement, Prospectus and the General Disclosure Package, including the Prospectus Package and which that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the MHC Company, the Mid-Tier Company, the Bank and the Bank MHC identified in such letter.
(g) At the Closing Time, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ & Company, P.C. a letter, letter dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(h) At the Closing Time, the Securities shall have been approved for trading quotation on the Nasdaq Capital Market upon notice of issuanceOTCQB.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either any of the NYSE MKT, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either any of said Exchanges exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by Federal, Massachusetts either Federal or New York Wisconsin authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the Mid-Tier Company, the MHC, the Bank and the Agent Agents agree that the issuance and the sale of Securities and the issuance of the Exchange Shares and all obligations of the Agent Agents hereunder are subject to the accuracy of the representations and warranties of the Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the Mid-Tier Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, Statement shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, Prospectus shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the FRB, Commission or the OTS and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent Agents shall have received:
(1) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇ ▇▇▇▇▇▇ Lovells US LLP▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., counsel for the Company, the Mid-Tier Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on Agents as attached hereto as Exhibit A hereto.A.
(2) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇▇▇▇ Procter ▇▇▇▇▇▇▇▇ LLP, counsel for the AgentAgents, with respect as to such matters as the Agent may Agents shall reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇▇▇ ▇▇▇▇▇▇ Lovells US LLP ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. and ▇▇▇▇▇▇▇▇▇▇ Procter ▇▇▇▇▇▇▇▇ LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at Closing Time, or (if applicable) that the Closing General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter LLP 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, and ▇▇▇▇▇▇▇ Procter LLP may also rely on the opinion of ▇▇▇▇▇ Lovells US LLP.
(c) At the Closing Time referred to in Section 22 hereof, the Company, the Mid-Tier Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion OTS Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company Company, the Mid-Tier Company, the MHC or the Bank by the FRBOTS, or any other regulatory authority other than those which the FRB or the Division OTS permits to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the Mid-Tier Company, the MHC and the Bank, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent Agents shall have received a certificate of the President and Chief Executive Officer of the Company, of the Mid-Tier Company, of the MHC and of the Bank and the Executive Vice President and Chief Financial Officer of the Company, of the MHCMid-Tier Company, of the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the Mid-Tier Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the Mid-Tier Company, the MHC or the Bank, as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, practice (iii) neither the Company Company, the Mid-Tier Company, the MHC nor the Bank shall have received from the FRB OTS any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the AgentAgents) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the Mid-Tier Company, the MHC or the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the Mid-Tier Company, the MHC and the Bank has have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission, Commission and (vii) no order suspending the Subscription and Community Offering or the Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or, to their knowledge, or threatened by the FRB OTS and no person has sought to obtain regulatory or judicial review of the action of the Division OTS in approving the Plan in accordance with the OTS Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB OTS in approving the Holding Company Conversion Application.
(e) At the Closing Time, the Agent Agents shall have received a certificate of the President and Chief Executive Officer of the Mid-Tier Company, of the MHC Company and of the Bank and the Executive Vice President and Chief Financial Officer of the Mid-Tier Company, of the MHC Company and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus fairly present the financial condition and results of operations of the MHC Mid-Tier Company and the subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus.
(f) At the time As of the execution of this Agreementdate hereof, the Agent Agents shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C., KPMG LLP a letter dated such date, in form and substance satisfactory to the AgentAgents, to the effect that: (i) for the three-year period ended December 31, 2009 and the three month period ended March 31, 2010, they are were the independent public accountants with respect to the MHCCompany, the Company Mid-Tier Company, the MHC and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the OTS Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements for the three-year period ended December 31, 2009 and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent Agents and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. KPMG LLP set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC Mid-Tier Company included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and Act, the Securities Act Regulations and the OTS Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other DataData of Northfield Bancorp, Inc. and Subsidiaries” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-long term or short-short term debt of the MHC and the Bank Mid-Tier Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings net worth of the MHC and the BankMid-Tier Company, in each case as compared with the amounts shown in the March 31, 2010 consolidated statements of financial conditions balance sheets included in the Registration Statement or, (D) during the period from [ ]March 31, 2014 2010 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCMid-Tier Company, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which that are specified by the AgentAgents, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the Mid-Tier Company, the MHC and the Bank identified in such letter.
(g) The “lock-up” agreements, each substantially in the form of Exhibit C hereto, between the Agents and the persons set forth on Exhibit D hereto, relating to sales and certain other dispositions of shares of Common Stock, Mid-Tier Company Common Stock or certain other securities, shall be delivered to the Agents on or before the date hereof and shall be in full force and effect on the Closing Time.
(h) At the Closing Time, the Agent Agents shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. KPMG LLP a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(hi) At the Closing Time, the Securities and Exchange Shares shall have been approved for trading quotation on the Nasdaq Capital Global Select Market upon notice of issuance.
(ij) At the Closing Time, the Agent Agents shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisalAppraisal.
(jk) At the Closing Time, counsel for the Agent Agents shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and Exchange Shares and the contribution to the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent Agents and counsel for the AgentAgents.
(kl) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the AgentAgents, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, Massachusetts Maryland or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the Mid-Tier Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and the issuance of the Exchange Shares, the contribution to the Foundation, and all obligations of the Agent Agents hereunder are subject to the accuracy of the representations and warranties of the Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the Mid-Tier Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, Statement shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the Commission, no order suspending the Offerings Offerings, the contribution to the Foundation or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, Prospectus shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the FRB, Commission or the OTS and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent Agents shall have received:
(1) The favorable opinion, dated as of the Closing Time, of Silver, F▇▇▇▇▇▇▇ Lovells US LLP& Taff, L.L.P, counsel for the Company, the Mid-Tier Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on Agents as attached hereto as Exhibit A hereto.A.
(2) The favorable opinion, dated as of the Closing Time, of K▇▇▇▇▇▇▇▇▇ Procter ▇▇▇▇▇▇▇▇ LLP, counsel for the AgentAgents, with respect as to such matters as the Agent may Agents shall reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇▇▇▇ Lovells US LLP and Silver, F▇▇▇▇▇▇▇ Procter & Taff, L.L.P. and K▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at Closing Time, or (if applicable) that the Closing General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter LLP 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, and ▇▇▇▇▇▇▇ Procter LLP may also rely on the opinion of ▇▇▇▇▇ Lovells US LLP.
(c) At the Closing Time referred to in Section 22 hereof, the Company, the Mid-Tier Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion OTS Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company Company, the Mid-Tier Company, the MHC or the Bank by the FRBOTS, or any other regulatory authority other than those which the FRB or the Division OTS permits to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the Mid-Tier Company, the MHC and the Bank, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent Agents shall have received a certificate of the President and Chief Executive Officer of the Company, of the Mid-Tier Company, of the MHC and of the Bank and the Executive Vice President and Chief Financial Officer of the Company, of the MHCMid-Tier Company, of the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the Mid-Tier Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the Mid-Tier Company, the MHC or the Bank, as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, practice (iii) neither the Company Company, the Mid-Tier Company, the MHC nor the Bank shall have received from the FRB OTS any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the AgentAgents) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the Mid-Tier Company, the MHC or the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the Mid-Tier Company, the MHC and the Bank has have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission, Commission and (vii) no order suspending the Subscription and Community Offering or the Syndicated Community Offering Offering, the contribution to the Foundation, or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or, to their knowledge, or threatened by the FRB OTS and no person has sought to obtain regulatory or judicial review of the action of the Division OTS in approving the Plan in accordance with the OTS Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB OTS in approving the Holding Company Conversion Application.
(e) At the Closing Time, the Agent Agents shall have received a certificate of the President and Chief Executive Officer of the Mid-Tier Company, of the MHC Company and of the Bank and the Executive Vice President and Chief Financial Officer of the Mid-Tier Company, of the MHC Company and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus fairly present the financial condition and results of operations of the MHC Mid-Tier Company and the subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus.
(f) At the time As of the execution of this Agreementdate hereof, the Agent Agents shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Deloitte & Company, P.C., Touche LLP a letter dated such date, in form and substance satisfactory to the AgentAgents, to the effect that: (i) for the three-year period ended September 30, 2009 and the six month period ended March 31, 2010, they are were the independent public accountants with respect to the MHCCompany, the Company Mid-Tier Company, the MHC and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the OTS Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇S▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements for the three-year period ended September 30, 2009 and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent Agents and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Deloitte & Company, P.C. Touche LLP set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC Mid-Tier Company included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and Act, the Securities Act Regulations and the OTS Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-long term or short-short term debt of the MHC and the Bank Mid-Tier Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings net worth of the MHC and the BankMid-Tier Company, in each case as compared with the amounts shown in the September 30, 2009 consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from [ ]December 31, 2014 2009 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCMid-Tier Company, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which that are specified by the AgentAgents, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the Mid-Tier Company, the MHC and the Bank identified in such letter.
(g) The “lock-up” agreements, each substantially in the form of Exhibit C hereto, between the Agents and the persons set forth on Exhibit D hereto, relating to sales and certain other dispositions of shares of Common Stock, Mid-Tier Company Common Stock or certain other securities, shall be delivered to the Agents on or before the date hereof and shall be in full force and effect on the Closing Time.
(h) At the Closing Time, the Agent Agents shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Deloitte & Company, P.C. Touche LLP a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(hi) At the Closing Time, the Securities and Exchange Shares shall have been approved for trading quotation on the Nasdaq Capital Global Select Market upon notice of issuance.
(ij) At the Closing Time, the Agent Agents shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(jk) At the Closing Time, counsel for the Agent Agents shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and Exchange Shares and the contribution to the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent Agents and counsel for the AgentAgents.
(kl) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the AgentAgents, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by Federal, Massachusetts either Federal or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the Mid-Tier Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and the issuance of the Exchange Shares, the contribution to the Foundation, and all obligations of the Agent Agents hereunder are subject to the accuracy of the representations and warranties of the Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the Mid-Tier Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, Statement shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings Offerings, the contribution to the Foundation or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, Prospectus shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the FRB, Commission or the OTS and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent Agents shall have received:
(1) The favorable opinion, dated as of the Closing Time, of Silver, ▇▇▇▇▇▇▇▇ Lovells US LLP& Taff, L.L.P, counsel for the Company, the Mid-Tier Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on Agents as attached hereto as Exhibit A hereto.A.
(2) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇▇▇▇ Procter ▇▇▇▇▇▇▇▇ LLP, counsel for the AgentAgents, with respect as to such matters as the Agent may Agents shall reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Silver, ▇▇▇▇▇▇▇▇ Lovells US LLP & Taff, L.L.P. and ▇▇▇▇▇▇▇▇▇▇ Procter ▇▇▇▇▇▇▇▇ LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at Closing Time, or (if applicable) that the Closing General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter LLP 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, and ▇▇▇▇▇▇▇ Procter LLP may also rely on the opinion of ▇▇▇▇▇ Lovells US LLP.
(c) At the Closing Time referred to in Section 22 hereof, the Company, the Mid-Tier Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion OTS Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company Company, the Mid-Tier Company, the MHC or the Bank by the FRBOTS, or any other regulatory authority other than those which the FRB or the Division OTS permits to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the Mid-Tier Company, the MHC and the Bank, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent Agents shall have received a certificate of the President and Chief Executive Officer of the Company, of the Mid-Tier Company, of the MHC and of the Bank and the Executive Vice President and Chief Financial Officer of the Company, of the MHCMid-Tier Company, of the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the Mid-Tier Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the Mid-Tier Company, the MHC or the Bank, as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, practice (iii) neither the Company Company, the Mid-Tier Company, the MHC nor the Bank shall have received from the FRB OTS any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the AgentAgents) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the Mid-Tier Company, the MHC or the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the Mid-Tier Company, the MHC and the Bank has have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission, Commission and (vii) no order suspending the Subscription and Community Offering or the Syndicated Community Offering Offering, the contribution to the Foundation, or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or, to their knowledge, or threatened by the FRB OTS and no person has sought to obtain regulatory or judicial review of the action of the Division OTS in approving the Plan in accordance with the OTS Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB OTS in approving the Holding Company Conversion Application.
(e) At the Closing Time, the Agent Agents shall have received a certificate of the President and Chief Executive Officer of the Mid-Tier Company, of the MHC Company and of the Bank and the Executive Vice President and Chief Financial Officer of the Mid-Tier Company, of the MHC Company and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus fairly present the financial condition and results of operations of the MHC Mid-Tier Company and the subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus.
(f) At the time As of the execution of this Agreementdate hereof, the Agent Agents shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Deloitte & Company, P.C., Touche LLP a letter dated such date, in form and substance satisfactory to the AgentAgents, to the effect that: (i) for the three-year period ended September 30, 2009 and the six month period ended March 31, 2010, they are were the independent public accountants with respect to the MHCCompany, the Company Mid-Tier Company, the MHC and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the OTS Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements for the three-year period ended September 30, 2009 and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent Agents and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Deloitte & Company, P.C. Touche LLP set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC Mid-Tier Company included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and Act, the Securities Act Regulations and the OTS Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-long term or short-short term debt of the MHC and the Bank Mid-Tier Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings net worth of the MHC and the BankMid-Tier Company, in each case as compared with the amounts shown in the September 30, 2009 consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from [ ]December 31, 2014 2009 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCMid-Tier Company, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which that are specified by the AgentAgents, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the Mid-Tier Company, the MHC and the Bank identified in such letter.
(g) The “lock-up” agreements, each substantially in the form of Exhibit C hereto, between the Agents and the persons set forth on Exhibit D hereto, relating to sales and certain other dispositions of shares of Common Stock, Mid-Tier Company Common Stock or certain other securities, shall be delivered to the Agents on or before the date hereof and shall be in full force and effect on the Closing Time.
(h) At the Closing Time, the Agent Agents shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Deloitte & Company, P.C. Touche LLP a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(hi) At the Closing Time, the Securities and Exchange Shares shall have been approved for trading quotation on the Nasdaq Capital Global Select Market upon notice of issuance.
(ij) At the Closing Time, the Agent Agents shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisalAppraisal.
(jk) At the Closing Time, counsel for the Agent Agents shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and Exchange Shares and the contribution to the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent Agents and counsel for the AgentAgents.
(kl) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the AgentAgents, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, Massachusetts Maryland or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the Mid-Tier Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the Mid-Tier Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, Statement shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the Commission, no order suspending the Offerings or the authorization for final use effectiveness of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, Prospectus shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the FRBCommission or the OTS, and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinionopinion contained in Exhibit 1 hereof, dated as of the Closing Time, of ▇▇▇▇▇▇▇ Lovells US ▇▇▇▇▇▇ & Aguggia LLP, special counsel for the Company, the Mid- Tier Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on Exhibit A hereto.
(2) The favorable opinionopinion contained in Exhibit 2 hereof, dated as of the Closing Time, of ▇▇▇▇ ▇▇▇▇▇▇ Procter LLP▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., counsel for the Patapsco Parties, in form and substance satisfactory to the counsel for the Agent.
(3) The favorable opinion contained in Exhibit 3 hereof, dated as of Closing Time, of Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P, counsel for the Agent, with respect in form and substance satisfactory to such matters as the Agent may reasonably requireAgent.
(34) In addition to giving their opinions required by subsections (b)(l) and (b)(2b)(3), respectively, of this Section, ▇▇▇▇▇▇▇ Lovells US ▇▇▇▇▇▇ & Aguggia LLP and Elias, Matz, ▇▇▇▇▇▇▇ Procter LLP & ▇▇▇▇▇▇▇ L.L.P. shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at the Closing Time, or that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇ & Aguggia LLP, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Procter LLP & ▇▇▇▇▇▇, P.C. and Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. may rely as to matters of fact on certificates of officers and directors of the Company, the MHC Mid-Tier Company, the MHC, the Bank and the Bank Subsidiaries, or the Patapsco Parties, as applicable, and certificates of public officials, and Elias, Matz, ▇▇▇▇▇▇▇ Procter LLP & ▇▇▇▇▇▇▇ L.L.P. may also rely on the opinion of ▇▇▇▇▇▇▇ Lovells US LLP▇▇▇▇▇▇ & Aguggia LLP with respect to matters set forth in paragraphs (i), (ii), (iii), (iv),(vii), (viii), (ix), (xvii), (xviii) and (xxi) therein.
(c) At the Closing Time referred to in Section 2, the Company, the Mid-Tier Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion Offerings in accordance with the Plan, the applicable Conversion OTS Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Offerings imposed upon the Company Company, the Mid-Tier Company, the MHC or the Bank by the FRBOTS, or any other regulatory authority other than those which the FRB or the Division OTS permits to be completed after the ConversionOfferings.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC Mid-Tier Company, the MHC, the Bank and the BankSubsidiaries, considered as one enterprise, or the Patapsco Parties, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the Mid-Tier Company, of the MHC and of the Bank and the Chief Financial or Chief Accounting Officer of the Company, of the MHCMid-Tier Company, of the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the MHC MHC, the Bank or the Bank Patapsco Parties from the latest date as of which the financial condition of the Company, the MHC or the Bank, as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, practice (iii) neither the Company Company, the Mid-Tier Company, the MHC, the Bank nor the Bank Patapsco Parties shall have received from the OTS, the Maryland Commissioner, the FDIC or the FRB any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC Mid-Tier Company, the MHC, the Bank and the Subsidiaries, considered as one enterprise, or the BankPatapsco Parties, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the Mid-Tier Company, the MHC and the Bank has complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or or, to the best of their knowledge after inquiry, threatened by the Commission, and (vii) no order suspending the Subscription and Community Offering or the Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or, to the best of their knowledge, threatened by the FRB OTS and no person has sought to obtain regulatory or judicial review of the action of the Division OTS in approving the Plan nor has any person sought to obtain regulatory or judicial review in accordance with the OTS Regulations and (viii) all of the action conditions precedent to consummation of the FRB Merger set forth in approving Article VI of the Holding Company ApplicationMerger Agreement have been satisfied.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer and President of the Company, of the Mid-Tier Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the Mid-Tier Company, of the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus fairly present the financial condition and results of operations of the MHC and any subsidiary, and the subsidiaries Patapsco Parties, as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus.
(f1) At the time of the execution of this Agreement, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C., a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the Company, the Mid-Tier Company, the MHC, the Company Bank and the Bank Subsidiaries within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the OTS Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and Act, the Securities Act Regulations and the OTS Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other DataData of Bradford Bank MHC” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt or non-performing assets of the MHC and the Bank Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings of the MHC and the BankMHC, in each case as compared with the amounts shown in the consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from [ ]September 30, 2014 2007 to a specified date not more than five (5) days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHC, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the Mid-Tier Company, the MHC and the Bank identified in such letter.
(g2) At the Closing Timetime of the execution of this Agreement, the Agent shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇ a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to Patapsco, Patapsco Bank and the Patapsco Subsidiaries within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the applicable regulations of the FDIC and the FRB, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinion therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇ ▇▇▇▇▇▇ set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of Patapsco included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations and the OTS Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data of Patapsco Bancorp” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) days prior to the date of this Agreement, there has been any increase in the long-term or short-term debt or non-performing asset of Patapsco or any decrease in consolidated total assets, the allowance for loan losses, total deposits or stockholders’ equity of Patapsco, in each case as compared with the amounts shown in the consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from September 30, 2007 to a specified date not more than five (5) days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of Patapsco, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and Prospectus and which are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of Patapsco and Patapsco Bank identified in such letter.
(g) At Closing Time, the Agent shall have received from each of ▇▇▇▇▇▇▇ & Company, P.C. and ▇▇▇▇▇ ▇▇▇▇▇▇ a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter letters furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five days prior to the Closing Time.
(h) At the Closing Time, the Securities shall have been approved for trading on the Nasdaq Capital Market upon notice of issuance.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by Federal, Massachusetts or New York authorities.)
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, Statement shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the Commission, no order suspending the Offerings or the authorization for final use effectiveness of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, Prospectus shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the Commission or the FRB, and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1i) The favorable opinionwritten opinion contained in Exhibit 1 hereof, dated as of the Closing Time, of L▇▇▇ ▇▇▇▇▇ Lovells US LLP▇▇, PC, special counsel for the Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on Exhibit A hereto.
(2ii) The favorable opinionopinion contained in Exhibit 2 hereof, dated as of the Closing Time, of N▇▇▇▇▇, M▇▇▇▇▇▇▇▇ Procter & Fish LLP, counsel for the Agent, with respect in form and substance satisfactory to such matters as the Agent may reasonably requireAgent.
(3iii) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, L▇▇▇ ▇▇▇▇▇ Lovells US LLP ▇▇, PC and N▇▇▇▇▇, M▇▇▇▇▇▇▇▇ Procter & Fish, LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at the Closing Time, or that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, L▇▇▇ ▇▇▇▇▇ Lovells US LLP ▇▇, PC, and N▇▇▇▇▇, M▇▇▇▇▇▇▇▇ Procter & Fish, LLP may rely as to matters of fact on certificates of officers and directors of the Company, the MHC MHC, the Bank and the Bank Subsidiaries, as applicable, and certificates of public officials, and N▇▇▇▇▇, M▇▇▇▇▇▇▇▇ Procter & Fish, LLP may also rely on the opinion of L▇▇▇ ▇▇▇▇▇ Lovells US LLP▇▇, PC with respect to matters set forth in paragraphs (vi), (vii), (xvii), (xviii) and (xx) therein.
(c) At the Closing Time referred to in Section 2, the Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion Offerings in accordance with the Plan, the applicable Conversion Massachusetts Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Offerings imposed upon the Company Company, the MHC or the Bank by the FRBDivision, the FRB or any other regulatory authority authority, other than those which the Division, the FRB or the Division such other regulatory authority permits to be completed after the ConversionOfferings.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC MHC, the Bank and the BankSubsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC and of the Bank and the Chief Financial or Chief Accounting Officer of the Company, of the MHC, MHC and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the MHC MHC, or the Bank from the latest date as of which the financial condition of the Company, the MHC or the Bank, as Bank is set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, other than transactions referred to or contemplated specifically disclosed therein and transactions in the ordinary course of business consistent with past practice, practice (iii) neither the Company Company, the MHC, nor the Bank shall have received from the Division, the FRB or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC or the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC and the Bank has complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or or, to the best of their knowledge after inquiry, threatened by the Commission, and (vii) no order suspending the Subscription and Community Offering or the Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or, to the best of their knowledge, threatened by the FRB Division and no person has sought to obtain regulatory or judicial review of the action of the Division in approving the Plan nor has any person sought to obtain regulatory or judicial review of in accordance with the action of the FRB in approving the Holding Company ApplicationMassachusetts Regulations.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer and President of the Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus fairly present the financial condition and results of operations of the MHC Company and the subsidiaries any subsidiary, as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus.
(f) At the time of the execution of this Agreement, the Agent shall have received from W▇▇▇▇▇▇▇▇▇, ▇ & H▇▇▇▇▇▇▇ & Company, P.C., P.C. a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the Company, the MHC, the Company Bank and the Bank Subsidiaries within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the Massachusetts Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇S▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and W▇▇▇▇▇▇▇▇▇, ▇ & H▇▇▇▇▇▇▇ & Company, P.C. set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC Company included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and Act, the Securities Act Regulations and the Massachusetts Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC and the Bank Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings stockholders’ equity of the MHC and the BankCompany, in each case as compared with the amounts shown in the consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from [ ]January 1, 2014 2015 to a specified date not more than five (5) days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCCompany, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus disclose have occurred or may will likely occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the MHC and the Bank identified in such letter.
(g) At the Closing Time, the Agent shall have received from W▇▇▇▇▇▇▇▇▇, ▇ & H▇▇▇▇▇▇▇ & Company, P.C. a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(h) At the Closing Time, the Securities and the Foundation Shares shall have been approved for trading quotation on the Nasdaq Capital Market upon notice of issuance.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisalAppraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by Federal, either Federal or Massachusetts or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHC, the Mid-Tier, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC MHC, the Mid-Tier and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC MHC, the Mid-Tier and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC MHC, the Mid-Tier and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, threatened by the FRB, and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇ ▇▇▇▇▇▇ Lovells US LLP▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., counsel for the Company, the MHC MHC, the Mid-Tier and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on Exhibit A hereto. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. may rely on the opinion of local counsel as necessary.
(2) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇ Procter LLP, counsel for the Agent, with respect to such matters as the Agent may reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇▇▇ ▇▇▇▇▇▇ Lovells US LLP ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. and ▇▇▇▇▇▇▇ Procter LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation valuaiton information and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇ ▇▇▇▇▇▇ Lovells US LLP ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. and ▇▇▇▇▇▇▇ Procter LLP may rely as to matters of fact on certificates of officers and directors of the Company, the MHC MHC, the Mid-Tier and the Bank and certificates of public officials, and ▇▇▇▇▇▇▇ Procter LLP may also rely on the opinion of ▇▇▇▇ ▇▇▇▇▇▇ Lovells US LLP.▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C.
(c) At the Closing Time referred to in Section 2, the Company, the MHC MHC, the Mid-Tier and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion FRB Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company or the Bank by the FRB, or any other regulatory authority other than those which the FRB or the Division Department permits to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC MHC, the Mid-Tier and the Bank, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC MHC, of the Mid-Tier and of the Bank and the Chief Financial Officer of the Company, of the MHC, of the Mid-Tier and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the MHC MHC, the Mid-Tier or the Bank from the latest date as of which the financial condition of the Company, the MHC MHC, the Mid-Tier or the Bank, as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither the Company nor the Bank shall have received from the FRB any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC MHC, the Mid-Tier or the Bank, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC MHC, the Mid-Tier and the Bank has complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission, and (vii) no order suspending the Subscription and Community Offering or the Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or, to their knowledge, threatened by the FRB and no person has sought to obtain regulatory or judicial review of the action of the Division Department in approving the Plan nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Holding Company Application.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC MHC, of the Mid-Tier and of the Bank and the Chief Financial Officer of the Company, of the MHC MHC, of the Mid-Tier and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, fairly present the financial condition and results of operations of the MHC and the subsidiaries as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus.
(f) At the time of the execution of this Agreement, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Wolf & Company, P.C., a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHC, the Mid-Tier, the Company and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public Accountants, the Securities Act and the Securities Act Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Wolf & Company, P.C. set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” and under “Recent Developments” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC MHC, the Mid-Tier and the Bank or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings of the MHC MHC, the Mid-Tier and the Bank, in each case as compared with the amounts shown in the consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from [ ]October 1, 2014 2013 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHC, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the MHC MHC, the Mid-Tier and the Bank identified in such letter.
(g) At the Closing Time, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Wolf & Company, P.C. a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five days prior to the Closing Time.
(h) At the Closing Time, the Securities shall have been approved for trading on the Nasdaq Capital Market upon notice of issuance.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by Federal, Massachusetts Rhode Island or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHC, the Bank R▇▇▇▇▇’▇ and the Agent agree that the issuance and the sale of Securities and all each other Agent’s obligations of the Agent hereunder are subject to the accuracy of the representations in all material respects at and warranties of the Company, the MHC and the Bank herein contained (except as otherwise stated herein) as of the date hereof and at and as of the Closing TimeDate, of the representations and warranties made herein by the Company to the accuracy compliance in all material respects at and as of the statements of officers Closing Date by the Company with its covenants and directors of the Company, the MHC agreements herein contained and the Bank made pursuant other provisions hereof to be satisfied at or prior to the provisions hereof, to the performance by the Company, the MHC and the Bank of their obligations hereunder, Closing Date and to the following further additional conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, threatened by the FRB, and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of R▇▇▇▇▇ Lovells US LLPshall not have stated in writing prior to each Closing Date to the Company that the Base Prospectus, counsel for the CompanyProspectus Supplement or any Exchange Act Document, the MHC and the Bankor any amendment or supplement thereto contains an untrue statement of fact which, in form and substance satisfactory to counsel for the Agent, set forth on Exhibit A hereto.
(2) The favorable opinion, dated as of the Closing Time, of R▇▇▇▇▇▇’▇ Procter LLPreasonable opinion, counsel for is material, or omits to state a fact which, in the Agent, with respect to such matters as the Agent may reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, reasonable opinion of this Section, ▇▇▇▇▇ Lovells US LLP and R▇▇▇▇▇▇▇ Procter LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or is necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, .
(b) R▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter LLP may rely as to matters of fact shall have received a certificate, dated the Closing Date, on certificates of officers and directors behalf of the CompanyCompany by the Chief Executive Officer or the President and the chief financial or accounting officer of the Company to the effect that:
(i) To the best of the knowledge of the signers, the MHC representations and warranties of the Bank Company in this Agreement are true and certificates of public officials, and ▇▇▇▇▇▇▇ Procter LLP may also rely on the opinion of ▇▇▇▇▇ Lovells US LLP.
(c) At the Closing Time referred to in Section 2, the Company, the MHC and the Bank shall have completed correct in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company or the Bank by the FRB, or any other regulatory authority other than those which the FRB or the Division permits to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC and the Bank, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC, and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the MHC or the Bank, as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither the Company nor the Bank shall have received from the FRB any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC or the Bank, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing TimeDate, (v) each of the Company, the MHC and the Bank Company has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on their its part to be performed or satisfied at or prior to the Closing TimeDate;
(ii) Between the date of this Agreement and the Closing Date, (vi) no stop order suspending the effectiveness of the Registration Statement litigation has been issued and no proceedings for that purpose have been initiated or threatened by the Commission, and (vii) no order suspending the Subscription and Community Offering or the Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated instituted or, to their knowledge, threatened by the FRB and no person has sought to obtain regulatory or judicial review of the action of the Division in approving the Plan nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Holding Company Application.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer knowledge of the Company, threatened against the Company or the Company of the MHC and of the Bank and the Chief Financial Officer of the Companya character required to be disclosed in an Exchange Act Document, of the MHC and of the Bank, dated as of the Closing Time, that has not been so disclosed to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the ProspectusAgents; (ii) based on their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and and
(iii) based on their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, fairly present the financial condition and results of operations of the MHC and the subsidiaries as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus.
(f) At the time of the execution of this Agreement, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C., a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHC, the Company and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public Accountants, the Securities Act and the Securities Act Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five days prior to Between the date of this AgreementAgreement and the Closing Date, there has not been any increase in the consolidated long-term or short-term debt of the MHC and the Bank or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings of the MHC and the Bank, in each case as compared with the amounts shown in the consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from [ ], 2014 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHC, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the MHC and the Bank identified in such letter.
(g) At the Closing Time, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five days prior to the Closing Time.
(h) At the Closing Time, the Securities shall have been approved for trading on the Nasdaq Capital Market upon notice of issuance.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets condition, business, or results of operations of the Company or the Company.
(c) The Company shall have furnished to the Placement Agent such additional certificates as R▇▇▇▇▇ may have reasonably requested as to the accuracy, at and as of the Closing Date, of the representations and warranties made herein by it, as to compliance at and as of the Closing Date by it with its covenants and agreements herein contained and other provisions hereof to be satisfied at or prior to the Closing Date and as to other conditions to the Agents’ obligations hereunder.
(d) The Placement Agent shall have received from outside counsel to the Company such counsel’s written opinion, addressed to the Placement Agent, with reliance language for any authorized co-placement agent or selected dealer, date as of the Closing Date, in form and substance reasonably satisfactory to the Placement Agent.
(e) Each officer and director of the Company shall have executed and delivered to the Placement Agent a written agreement, in customary form, pursuant to which such individual shall agree that he or she shall not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any shares of Common Stock or common stock equivalents, enter into a transaction that would have the same effect, or enter into any swap, hedge or other arrangement that transfers, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction is to be settled by delivery of Common Stock or other securities, cash or otherwise, or publicly disclose the intention to enter into any of the foregoing transactions, without the prior written consent of the Placement Agent for a period of 90 days from the date of the Prospectus Supplement. Provided, however, that in the United States event that either (1) during the last 17 days of the 90-day period described herein, the Company releases earnings results or elsewhere material news or any outbreak a material event occurs relating to the Company, or (2) prior to the expiration of hostilities or escalation thereof or other calamity or crisis such 90-day period, the effect Company announces that it will release earnings results during the 16-day period beginning on the last day of whichthe 90-day period, then, in either case, the judgment 90 day period shall be extended until the expiration of the Agent, is so material and adverse as to make it impracticable to market 18-day period beginning on the Securities or to enforce contracts, including subscriptions or orders, for the sale actual date of the Securities, and (ii) trading generally on either release of the New York Stock Exchange earnings results or the Nasdaq Stock Market occurrence of the material new or event, unless such extension is waived in writing by the Placement Agent. If any of the conditions provided for in this Section 9 shall not have been suspendedsatisfied when and as required by this Agreement, and minimum this Agreement may be terminated by R▇▇▇▇▇ by notifying the Company of such termination in writing at or maximum prices for trading prior to a Closing Date, but R▇▇▇▇▇ shall not have been fixed, or maximum ranges for prices for securities have been required, by either be entitled to waive any of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by Federal, Massachusetts or New York authoritiessuch conditions.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder to the performance of their obligations herein are subject to the accuracy of the representations and warranties of the CompanyCompany herein contained, the MHC and the Bank herein contained as of the date hereof and as of the Closing TimeDate, to the accuracy of the statements of officers and directors of the Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, Company of all of its obligations hereunder on the MHC and Closing Date including the Bank of their obligations hereunder, and to Agent receiving on the following further conditionsClosing Date:
(a) No stop The Canadian Prospectus shall have been filed with the Canadian Qualifying Authorities and the U.S. Prospectus shall have been filed with the Commission in a timely fashion in accordance with Section 6 hereof; no order suspending the effectiveness of any securities commission, securities regulatory authority or stock exchange in Canada to cease distribution of the Registration StatementUnits under the Canadian Prospectus, including any post-effective amendment theretoas amended or supplemented, shall have been issued under the Securities Act or issued, and no proceedings therefor initiated for such purpose shall have been instituted or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, threatened by the FRB, and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇ Lovells US LLP, counsel for the Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on Exhibit A hereto.
(2) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇ Procter LLP, counsel for the Agent, with respect to such matters as the Agent may reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter LLP 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, and ▇▇▇▇▇▇▇ Procter LLP may also rely on the opinion of ▇▇▇▇▇ Lovells US LLP.
(c) At the Closing Time referred to in Section 2, the Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company or the Bank by the FRB, or any other regulatory authority other than those which the FRB or the Division permits to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC and the Bank, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC, and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the MHC or the Bank, as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither the Company nor the Bank shall have received from the FRB any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC or the Bank, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC and the Bank has complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) threatened; no stop order suspending the effectiveness of the Registration Statement has or any post-effective amendment thereto, and no stop order suspending or preventing the use of the U.S. Pricing Prospectus, the U.S. Prospectus or any Issuer Free Writing Prospectus, shall have been issued by the Commission and no proceedings for that purpose therefor shall have been initiated or threatened by the Commission, and (vii) no order suspending ; all requests for additional information on the Subscription and Community Offering part of the Canadian Qualifying Authorities or the Syndicated Community Offering Commission shall have been complied with to the Agent’s reasonable satisfaction; and all necessary regulatory or the authorization for final use stock exchange approvals in respect of the Prospectus has been issued and no proceedings for that purpose Offering shall have been initiated or, to their knowledge, threatened by the FRB and no person has sought to obtain regulatory or judicial review of the action of the Division in approving the Plan nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Holding Company Applicationreceived.
(eb) At Not more than 30 days after the date hereof and prior to the Closing TimeDate, the Agent FINRA shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC and of the Bank, dated as of the Closing Time, confirmed that it has no objection with respect to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, fairly present the financial condition and results of operations of the MHC and the subsidiaries as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the ProspectusOffering.
(fc) At A favourable legal opinion of Stikeman Elliott LLP, Canadian counsel for the time of Company addressed to the execution of this Agreement, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C., a letter dated such dateAgent, in form and substance satisfactory to the Agent, to the effect that: set forth in Schedule “A” hereto and to such other matters as may reasonably be requested by the Agent.
(id) they are independent public accountants with respect to the MHC, the Company and the Bank within the meaning A favourable legal opinion of the Code of Ethics of the American Institute of Certified Public Accountants, the Securities Act and the Securities Act Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the D▇▇▇▇▇ & W▇▇▇▇▇▇ LLP, United States counsel for the Company, addressed to the Agent, in form and substance satisfactory to the Agent, to the effect set forth in Schedule “B” hereto and to such other matters as may reasonably be requested by the Agent.
(e) A favourable legal opinion of N▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that & Associates LLC, United States counsel to Company addressed to the consolidated financial statements Agent, in form and supporting schedules included in substance satisfactory to the Registration Statement and covered by their opinions therein comply Agent, as to form in all material respects with ownership by the applicable accounting requirements Company of the Securities Act Spring Valley Property and the Securities Act Regulations; Pan Property.
(iiif) based upon limited procedures as agreed upon by the Agent and A favourable legal opinion of P▇▇▇ B▇▇▇▇ G▇▇▇▇▇▇, ▇ & L▇▇▇▇▇▇▇ & Companyaddressed to the Agent, P.C. set forth in detail form and substance satisfactory to the Agent, as to ownership of the Material Subsidiaries (other than Pan-Nevada Gold Corporation and GEH (B.C.) Holding Inc.) and their due incorporation or organization, valid existence and good standing (if such concept is recognized in such letter, nothing has come to their attention which causes them to believe that (Ajurisdiction) the unaudited consolidated financial statements and supporting schedules of the MHC included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply such other matters as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC and the Bank or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings of the MHC and the Bank, in each case as compared with the amounts shown in the consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from [ ], 2014 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHC, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which are specified reasonably be requested by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the MHC and the Bank identified in such letter.
(g) At A certificate of the Closing TimeChief Executive Officer and Chief Financial Officer of the Company in form and substance satisfactory to the Agent, as to the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. a letter, dated accuracy of the representations and warranties of the Company set forth in Section 1 hereof as of the date hereof and as of the Closing Time, Date as to the effect that they reaffirm performance by the statements made in the letter furnished pursuant Company of all of its obligations hereunder to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five days performed at or prior to the Closing TimeDate and as to the matters set forth in subsection (a) of this Section 7.
(h) At the time this Agreement is executed and at the Closing TimeDate, the Securities Agent shall have been approved received comfort letters, from KPMG LLP, independent chartered accountants for trading on the Nasdaq Capital Market upon notice Company, dated as of issuancethe date of this Agreement and as of the Closing Date, respectively, and addressed to the Agent, and in form and substance satisfactory to the Agent and its counsel.
(i) At the Closing TimeDate, a fully executed copy of the warrant indenture (the “Warrant Indenture”) between the Company and Computershare Trust Company of Canada providing for the creation and issuance of the Warrants, in form and substance satisfactory to the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming and its appraisalcounsel.
(j) At the Closing Time, counsel for Date the Agent Offered Shares and the Warrant Shares shall have been conditionally approved for listing on the TSX.V and shall be approved for listing, subject to official notice of issuance, on Amex.
(k) The Company shall have furnished to the Agent and its counsel with such other certificates, opinions or other documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of have reasonably requested. If any of the representations or warrantiesconditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement, or the fulfillment of if any of the conditionscertificates, herein contained; and all proceedings taken by opinions, written statements or letters furnished to the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated Agent or to its counsel pursuant to this Section 7 shall not be satisfactory in form and substance to the Agent and counsel for its counsel, all obligations of the Agent.
(k) At Agent hereunder may be cancelled by the Agent at, or at any time prior to, the Closing Date. Notice of such cancellation shall be given to the Closing Time, (i) there shall not have occurred any material adverse change Company in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by Federal, Massachusetts or New York authoritieswriting.
Appears in 1 contract
Sources: Agency Agreement (Midway Gold Corp)
Conditions of Agent’s Obligations. The CompanyMHC, the MHCCompany, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the CompanyMHC, the MHC Company and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the CompanyMHC, the MHC Company and the Bank made pursuant to the provisions hereof, to the performance by the CompanyMHC, the MHC Company and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, threatened by the FRBCommission, or the FRB and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of K▇▇▇▇▇▇▇▇▇ Lovells US T▇▇▇▇▇▇▇ & S▇▇▇▇▇▇▇ LLP, counsel for the CompanyMHC, the MHC Company and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on as attached hereto as Exhibit A hereto.C.
(2) The favorable opinion, dated as of the Closing Time, of Silver, F▇▇▇▇▇▇▇, Taff & T▇▇▇▇▇▇ Procter LLP, counsel for the Agent, with respect as to such matters as the Agent may reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, K▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter T▇▇▇▇▇▇▇ & S▇▇▇▇▇▇▇ LLP and Silver, F▇▇▇▇▇▇▇, Taff & T▇▇▇▇▇▇ LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial financial, pro forma or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial financial, pro forma or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective effective, as of the date of the Prospectus or at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, K▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter T▇▇▇▇▇▇▇ & S▇▇▇▇▇▇▇ LLP and Silver, F▇▇▇▇▇▇▇, Taff & T▇▇▇▇▇▇ LLP may rely as to matters of fact on certificates of officers and directors of the CompanyMHC, the MHC Company and the Bank and certificates of public officials. Silver, and F▇▇▇▇▇▇▇, Taff & T▇▇▇▇▇▇ Procter LLP may also rely on the opinion of K▇▇▇▇▇▇▇▇▇ Lovells US T▇▇▇▇▇▇▇ & S▇▇▇▇▇▇▇ LLP.
(c) At the Closing Time referred to in Section 22 hereof, the Company, the MHC Bank and the Bank MHC shall have completed in all material respects the conditions precedent to the Conversion Offerings in accordance with the Plan, the applicable Conversion MHC Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Offerings imposed upon the Company Company, the Bank or the Bank MHC by the FRB, FRB or any other regulatory authority other than those which the FRB or the Division permits any such other regulatory authority do not require or permit to be completed after the ConversionOfferings.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC and the Bank, considered as one enterpriseMaterial Adverse Effect, whether or not arising in the ordinary course of business consistent with past practicebusiness, and the Agent shall have received a certificate of the President and Chief Executive Officer of the CompanyMHC, of the MHC Company and of the Bank and the Chief Financial Officer of the Company, of the MHC, the Company and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse changeMaterial Adverse Effect, (ii) there shall have been no material transaction entered into by the Company, the MHC Company or the Bank from the latest date as of which the financial condition of the Company, the MHC Company or the Bank, as set forth in the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither none of the Company nor Company, the MHC or the Bank shall have received from the FRB or the OCC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC or and the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC and the Bank has have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company, the MHC or the Bank, threatened by the Commission, and (vii) no order suspending the Subscription and Community Offering FRB’s approval of the FRB Application or the Syndicated Community Offering or the authorization for final use of the Prospectus transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to their knowledgethe knowledge of the Company, the MHC or the Bank, threatened by the FRB and no person has sought to obtain regulatory or judicial review of the action of the Division FRB in approving the Plan in accordance with the MHC Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Holding Company FRB Application, and (viii) no order suspending the Subscription and Community Offering, the Syndicated Offering or the Public Offering or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the FRB.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of the CompanyMHC, of the MHC Company and of the Bank and the Chief Financial Officer of the CompanyMHC, of the MHC Company and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package fairly present the financial condition and results of operations of the MHC and the subsidiaries Company as of and for the dates and periods covered by the Registration Statement and the General Disclosure PackageProspectus; (iv) they are responsible for establishing and maintaining disclosure controls and procedures; (v) they have designed such disclosure controls and procedures to ensure that material information relating to the Company, including the ProspectusMHC and the Bank is made known to them; (vi) they have evaluated the effectiveness of their disclosure controls and procedures; and (vii) they have disclosed to KPMG LLP and the audit committee (A) all significant deficiencies in the design or operation of disclosure controls and procedures which are reasonably likely to adversely affect the Bank’s ability to record, process, summarize, and report financial data, and have identified for the Company’s and the Bank’s independent registered public accounting firm any material weaknesses in disclosure controls and procedures and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s and the Bank’s disclosure controls and procedures.
(f) At the time As of the execution of this Agreementdate hereof, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C., KPMG LLP a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHC, the Company and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the MHC Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇S▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. KPMG LLP set forth in detail in such letterletters, nothing has come to their attention which causes them to believe that that, except as set forth in such letters, (A) the unaudited consolidated financial statements and supporting schedules of the MHC included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” or under “Recent Developments” in the Registration Statement Prospectus and Prospectus the General Disclosure Package do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited consolidated financial statements included in the Registration Statement, the Prospectus and the General Disclosure Package, (CB) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC and the Bank Company or any decrease in consolidated total assets, total investment securities, total loans, the allowance for loan losses, total deposits or retained earnings total stockholder’s equity of the MHC and the BankCompany, in each case as compared with the amounts shown in the December 31, 2017 unaudited consolidated statements of financial conditions included condition presented under the “Recent Developments” caption in the Registration Statement or, (DC) during the period from [ ]December 31, 2014 2017 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCCompany, or any increases in interest expense, non-interest expense or the provision for loan losses except in all instances for increases or decreases which the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement Statement, Prospectus and the General Disclosure Package, including the Prospectus Package and which that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the MHC Company and the Bank identified in such letter.
(g) At the Closing Time, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. KPMG LLP a letter, letter dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter letters furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(h) At the Closing Time, the Securities and the Foundation Shares shall have been approved for trading listing on the Nasdaq Capital Market upon notice of issuanceStock Market.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the issuance and contribution of the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either any of the NYSE MKT, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either any of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by Federal, Massachusetts either Federal or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC Company and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, Company and the MHC officers and trustees of the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC Company and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, threatened by the FRBCommission, the Department, the FDIC or the FRB and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of L▇▇▇ ▇▇▇▇▇ Lovells US LLP▇▇, PC, counsel for the Company, the MHC Company and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on as attached hereto as Exhibit A hereto.A.
(2) The favorable opinion, dated as of the Closing Time, of Silver, F▇▇▇▇▇▇▇, Taff & T▇▇▇▇▇▇ Procter LLP, counsel for the Agent, with respect as to such matters as the Agent may reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇L▇▇▇ Lovells US LLP and ▇▇▇▇▇▇, PC and Silver, F▇▇▇▇▇▇▇, T▇▇▇ Procter & T▇▇▇▇▇▇ LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information and schedules financial tables and other financial tabular, financial, pro forma, appraisal, accounting or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information and schedules statements and other financial tabular financial, pro forma, appraisal, accounting or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective effective, as of the date of the Prospectus or at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇L▇▇▇ Lovells US LLP and ▇▇▇▇▇▇, PC and Silver, F▇▇▇▇▇▇▇, T▇▇▇ Procter & T▇▇▇▇▇▇ LLP may rely as to matters of fact on certificates of officers and directors of the Company, the MHC Company and the Bank and certificates of public officials. Silver, and F▇▇▇▇▇▇▇, Taff & T▇▇▇▇▇▇ Procter LLP may also rely on the opinion of L▇▇▇ ▇▇▇▇▇ Lovells US LLP▇▇, PC.
(c) At the Closing Time referred to in Section 22 hereof, the Company, the MHC Company and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the Pennsylvania Conversion Law, the applicable Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company or the Bank by the FRB, the Department or the FDIC or any other regulatory authority other than those which the FRB FRB, the Department or the Division permits FDIC or any such other regulatory authority permit to be completed after the consummation of the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC and the Bank, considered as one enterpriseMaterial Adverse Effect, whether or not arising in the ordinary course of business consistent with past practicebusiness, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC Company and of the Bank and the Chief Financial Officer of the Company, of the MHC, Company and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse changeMaterial Adverse Effect, (ii) there shall have been no material transaction entered into by the Company, the MHC Company or the Bank from the latest date as of which the financial condition of the Company, the MHC Company or the Bank, as set forth in the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither the Company nor the Bank shall have received from the FRB FRB, the Department or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which would materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC or Company and the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC Company and the Bank has have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company or the Bank, threatened by the Commission, and (vii) no order suspending the Subscription and Community Offering FRB’s or the Syndicated Community Offering Department’s respective approval of the Holding Company Applications, the Department’s approval of the Pennsylvania Conversion Application, the FDIC’s non-objection to the FDIC Notice or the authorization for final use of the Prospectus respective transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to their knowledgethe knowledge of the Company or the Bank, threatened by the Department, the FDIC or the FRB and no person has sought to obtain regulatory or judicial review of the action of the Division Department in approving the Plan in accordance with the Pennsylvania Conversion Law nor has any person sought to obtain regulatory or judicial review of the action of the Department in approving the Pennsylvania Conversion Application or the action of the FRB or the Department in approving the Holding Company ApplicationApplications, and (viii) no order suspending the Subscription and Community Offering or the Syndicated Offering or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the Department, the FDIC or the FRB.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC Company and of the Bank and the Chief Financial Officer of the Company, of the MHC Company and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package fairly present the financial condition and results of operations of the MHC and the subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the General Disclosure PackageProspectus; (iv) they are responsible for establishing and maintaining disclosure controls and procedures; (v) they have designed such disclosure controls and procedures to ensure that material information relating to the Company and the Bank is made known to them; (vi) they have evaluated the effectiveness of their disclosure controls and procedures; and (vii) they have disclosed to YHB and the audit committee (A) all significant deficiencies in the design or operation of disclosure controls and procedures which are reasonably likely to adversely affect the Bank’s ability to record, including process, summarize, and report financial data, and have identified for the ProspectusCompany’s and the Bank’s independent registered public accounting firm any material weaknesses in disclosure controls and procedures and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s and the Bank’s disclosure controls and procedures.
(f) At the time As of the execution of this Agreementdate hereof, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C., YHB a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHC, the Company and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the Conversion Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇S▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. YHB set forth in detail in such letter, nothing has come to their attention which causes them to believe that that, except as set forth in such letters, (A) the unaudited consolidated financial statements and supporting schedules of the MHC included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other DataData of Prosper Bank” or under “Recent Developments” in the Registration Statement Prospectus and Prospectus the General Disclosure Package do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited consolidated financial statements included in the Registration Statement, the Prospectus and the General Disclosure Package, (CB) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC and the Bank or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings of the MHC and the Bank, in each case as compared with the amounts shown in the consolidated March 31, 2021 unaudited statements of financial conditions included condition presented under the “Recent Developments” caption in the Registration Statement or, (D) during the period from [ ]March 31, 2014 2021 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCBank or increases in interest expense or the provision for loan losses, except in all instances for increases or decreases which the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement Statement, Prospectus and the General Disclosure Package, including the Prospectus Package and which that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the MHC Company and the Bank identified in such letter.
(g) At the Closing Time, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. YHB a letter, letter dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter letters furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(h) At the Closing Time, the Securities shall have been approved for trading listing on the Nasdaq Capital Market upon notice of issuanceStock Market.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis crisis, including any natural disasters or other force majeure events or any epidemic, pandemic or disease outbreak or escalation (including the COVID-19 pandemic to the extent there is any material escalation or material worsening of such pandemic or the effects thereof subsequent to the date hereof), the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either any of the NYSE MKT, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either any of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, Massachusetts Pennsylvania or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are to sell the Shares as provided herein shall be subject to the accuracy accuracy, as of the date hereof and as of each Closing Date, of the representations and warranties of the Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC and the Bank made pursuant to the provisions hereofCompany herein, to the performance by the Company, the MHC and the Bank Company of their its obligations hereunder, hereunder and to the following further additional conditions:
(a) No The Registration Statement shall have become effective and no stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, Statement shall have been issued under the Securities Act or proceedings therefor initiated and no proceeding for that purpose shall have been instituted or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use and any request of the Prospectus, including any prospectus Commission for additional information (to be included in a post-effective amendment to the Registration Statement, Statement or the Prospectus or otherwise) shall have been issued or proceedings therefor initiated or, complied with to the knowledge of the Company, threatened by the FRB, and no order suspending the sale of the Securities in any jurisdiction shall have been issuedAgent's reasonable satisfaction.
(b) At the Closing Time, the The Agent shall not have received:
(1) The favorable opinion, dated as of advised the Closing Time, of ▇▇▇▇▇ Lovells US LLP, counsel for the Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on Exhibit A hereto.
(2) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇ Procter LLP, counsel for the Agent, with respect to such matters as the Agent may reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter LLP shall each additionally state that nothing has come to their attention that would lead them to believe Company that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effectiveProspectus, or that the General Disclosure Package as of the Applicable Timeany amendment or supplement thereto, contained contains an untrue statement of a material fact that in the Agent's reasonable opinion is material, or omitted omits to state a fact that in the Agent's reasonable opinion is material fact and is required to be stated therein or is necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter LLP 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, and ▇▇▇▇▇▇▇ Procter LLP may also rely on the opinion of ▇▇▇▇▇ Lovells US LLP.
(c) At Except as contemplated in the Closing Time referred Prospectus, subsequent to in Section 2, the Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company or the Bank by the FRB, or any other regulatory authority other than those which the FRB or the Division permits to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, there shall not have been any material change, on a consolidated basis, in the capital stock of the Company and its subsidiaries, or any material adverse change change, or any development that may reasonably be expected to cause a material adverse change, in the condition (financial conditionor other), business, prospects, net worth or results of operationsoperations of the Company and its subsidiaries, business affairs or prospects a downgrading in or withdrawal of the rating assigned to any of the Company, the MHC and the Bank, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice's securities by any rating organization, and no rating organization shall have publicly announced that it has under surveillance or review its rating of any of the Company's securities.
(d) The Agent shall have received a certificate on the date hereof and at every other date specified in Section 4(l) hereof, opinions of the President and Chief Executive Officer of the Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC, and of the BankCompany Counsel, dated as of the Closing Timesuch dates, respectively, substantially to the effect that that:
(i) there The Company has been no such material adverse change, (ii) there shall have been no material transaction entered into by duly incorporated and is validly existing as a corporation in good standing under the Company, the MHC or the Bank from the latest date laws of its jurisdiction of incorporation and has full corporate power and authority to conduct its business as of which the financial condition of the Company, the MHC or the Bank, as set forth described in the Registration Statement and Prospectus;
(ii) [Each "significant subsidiary" of the General Disclosure PackageCompany (as such term is defined in Rule 1-02 of Regulation S-X under the Act) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, including has corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted; and, except for directors' qualifying shares and as otherwise set forth in the Prospectus, other than transactions referred all of the issued and outstanding shares of capital stock of each significant subsidiary have been duly authorized and are validly issued, fully paid and non-assessable and, to such counsel's knowledge, are owned by the Company, directly or contemplated therein through subsidiaries, free and transactions clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity] [To such counsel's knowledge, the Company has no "significant subsidiaries" (as such term is defined in Rule 1-02 of Regulation S-X under the ordinary course of business consistent with past practice, Act)];
(iii) neither the Company nor the Bank shall have received from the FRB any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall The Shares have been disclosed in writing to the Agent) or which materially duly and adversely would affect the businessvalidly authorized, financial conditionand, results of operations or prospects of the Company, the MHC or the Bank, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC and the Bank has complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been when issued and no proceedings delivered to and paid for that purpose have been initiated or threatened by the Commission, and (vii) no order suspending the Subscription and Community Offering or the Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or, purchasers thereof pursuant to their knowledge, threatened by the FRB and no person has sought to obtain regulatory or judicial review of the action of the Division in approving the Plan nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Holding Company Application.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, fairly present the financial condition and results of operations of the MHC and the subsidiaries as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus.
(f) At the time of the execution of this Agreement, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C., a letter dated such date, in form will be fully paid and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHC, the Company nonassessable and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public Accountants, the Securities Act and the Securities Act Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form conform in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC and the Bank or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings of the MHC and the Bank, in each case as compared with the amounts shown in the consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from [ ], 2014 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHC, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the MHC and the Bank identified in such letter.
(g) At the Closing Time, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five days prior to the Closing Time.
(h) At the Closing Time, the Securities shall have been approved for trading on the Nasdaq Capital Market upon notice of issuance.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by Federal, Massachusetts or New York authorities.description
Appears in 1 contract
Sources: Sales Agency Agreement (Newfield Exploration Co /De/)
Conditions of Agent’s Obligations. The Company, the Mid-Tier Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and the issuance of the Exchange Shares and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the Mid-Tier Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, the Mid-Tier Company, the MHC or the Bank, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, the Mid-Tier Company, the MHC or the Bank, threatened by the FRB, Commission or the Federal Reserve Board and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇ ▇▇▇▇▇▇ Lovells US LLP▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., counsel for the Company, the Mid-Tier Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on Agent as attached hereto as Exhibit A hereto.C.
(2) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇▇▇▇ Procter ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Agent, with respect as to such matters as the Agent may shall reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇▇▇ ▇▇▇▇▇▇ Lovells US LLP ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. and ▇▇▇▇▇▇▇▇▇▇ Procter ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at Closing Time, or (if applicable) that the Closing General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇ ▇▇▇▇▇▇ Lovells US LLP ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. and ▇▇▇▇▇▇▇▇▇▇ Procter ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely as to matters of fact on certificates of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank and certificates of public officials, and . ▇▇▇▇▇▇▇▇▇▇ Procter ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may also rely on the opinion of ▇▇▇▇ ▇▇▇▇▇▇ Lovells US LLP.▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C.
(c) At the Closing Time referred to in Section 22 hereof, the Company, the Mid-Tier Company, the MHC and the Bank shall have completed in all material respects with the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion FRB Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company Company, the Mid-Tier Company, the MHC or the Bank by the FRBFederal Reserve Board, or any other regulatory authority other than those which the FRB or the Division Federal Reserve Board permits to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC and the Bank, considered as one enterpriseMaterial Adverse Effect, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer and President of the Company, of the Mid-Tier Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHCMid-Tier Company, of the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the Mid-Tier Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the Mid-Tier Company, the MHC or the Bank, as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, practice (iii) neither the Company Company, the Mid-Tier Company, the MHC nor the Bank shall have received from the FRB Federal Reserve Board, the WDFI or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the Mid-Tier Company, the MHC or the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the Mid-Tier Company, the MHC and the Bank has have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission, Commission and (vii) no order suspending the Subscription and Community Offering Federal Reserve Board's approval of the Conversion Application, or the Syndicated Community Offering or the authorization for final use of the Prospectus transactions contemplated thereby, has been issued and no proceedings for that purpose have been initiated or, to their knowledge, or threatened by the FRB Federal Reserve Board and no person has sought to obtain regulatory or judicial review of the action of the Division Federal Reserve Board in approving the Plan in accordance with the FRB Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB Federal Reserve Board in approving the Conversion Application or the Holding Company Application.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer and President of the Mid-Tier Company, of the MHC Company and of the Bank and the Chief Financial Officer of the Mid-Tier Company, of the Company, the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus fairly present the financial condition and results of operations of the MHC Mid-Tier Company and the subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus.
(f) At the time As of the execution of this Agreementdate hereof, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C., KPMG LLP a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHCCompany, the Company Mid-Tier Company, the MHC and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the FRB Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. KPMG LLP set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC Mid-Tier Company included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and Act, the Securities Act Regulations and the FRB Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “"Selected Consolidated Financial and Other Data” " or under "Recent Developments" in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-long term or short-short term debt of the MHC and the Bank Mid-Tier Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings shareholders' equity of the MHC and the BankMid-Tier Company, in each case as compared with the amounts shown in the June 30, 2013 consolidated statements of financial conditions balance sheets included in the Registration Statement or, (D) during the period from [ ]June 30, 2014 2013 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCMid-Tier Company, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the Mid-Tier Company, the MHC and the Bank identified in such letter.
(g) The "lock-up" agreements, each substantially in the form of Exhibit D hereto, between the Agent and the persons set forth on Exhibit E hereto, relating to sales and certain other dispositions of shares of Common Stock, Mid-Tier Company Common Stock or certain other securities, shall be delivered to the Agent on or before the date hereof and shall be in full force and effect on the Closing Time.
(h) At the Closing Time, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. KPMG LLP a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(hi) At the Closing Time, the Securities and Exchange Shares shall have been approved for trading quotation on the Nasdaq Capital Global Select Market upon notice of issuance.
(ij) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisalAppraisal.
(jk) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Exchange Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(kl) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, Massachusetts Wisconsin or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHCBank, the Bank Mineola Community MHC and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the Bank and Mineola Community MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC and Mineola Community Financial, the Bank and Mineola Community MHC made pursuant to the provisions hereof, to the performance by the Company, the MHC and Mineola Community Financial, the Bank and Mineola Community MHC of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-post- effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, threatened by the FRB, Commission or the FRB and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇ ▇▇ Lovells US LLP▇▇▇▇▇, PC, counsel for the Company, Mineola Community Financial, the MHC Bank and the BankMineola Community MHC, in form and substance satisfactory to counsel for the Agent, set forth on as attached hereto as Exhibit A hereto.A.
(2) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇ Procter LLP, counsel for the Agent, with respect as to such matters as the Agent may reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇▇▇ ▇▇ Lovells US LLP ▇▇▇▇▇, PC and ▇▇▇▇▇▇▇ Procter LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial financial, pro forma, appraisal or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial financial, pro forma, appraisal or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective effective, as of the date of the Prospectus or at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇ ▇▇ Lovells US LLP ▇▇▇▇▇, PC and ▇▇▇▇▇▇▇ Procter LLP may rely as to matters of fact on certificates of officers and directors of the Company, the MHC Company and the Bank and certificates of public officials, and . ▇▇▇▇▇▇▇ Procter LLP may also rely on the opinion of ▇▇▇▇ ▇▇ Lovells US LLP▇▇▇▇▇, PC.
(c) At the Closing Time referred to in Section 22 hereof, the Company, the MHC and Mineola Community Financial, the Bank and Mineola Community MHC shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion FRB Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company or Company, Mineola Community Financial, the Bank or Mineola Community MHC by the FRB, FRB or any other regulatory authority other than those which the FRB or the Division permits any such other regulatory authority permit to be completed after the consummation of the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC and the Bank, considered as one enterpriseMaterial Adverse Effect, whether or not arising in the ordinary course of business consistent with past practicebusiness, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC and of Mineola Community Financial, the Bank and Mineola Community MHC and the Chief Financial Officer of the Company, of Mineola Community Financial, the Bank and Mineola Community MHC, and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse changeMaterial Adverse Effect, (ii) there shall have been no material transaction entered into by the Company, the MHC or Mineola Community Financial, the Bank or Mineola Community MHC from the latest date as of which the financial condition of the Company, the MHC Mineola Community Financial or the Bank, as set forth in the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither none of the Company nor Company, Mineola Community Financial, the Bank or Mineola Community MHC shall have received from the FRB FRB, the TDSML or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which would materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, Mineola Community Financial the MHC Bank or the BankMineola Community MHC, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC and Mineola Community Financial, the Bank has and Mineola Community MHC have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company, Mineola Community Financial, the Bank or Mineola Community MHC, threatened by the Commission, and (vii) no order suspending the Subscription FRB’s approval of the Holding Company Application and Community Offering the Conversion Application or the Syndicated Community Offering or the authorization for final use of the Prospectus transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to their knowledgethe knowledge of the Company, Mineola Community Financial, the Bank or Mineola Community MHC, threatened by the FRB and no person has sought to obtain regulatory or judicial review of the action of the Division FRB in approving the Plan in accordance with the FRB Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Conversion Application or the Holding Company Application, and (viii) no order suspending the Subscription and Community Offering or the Syndicated Offering or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the FRB.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC and of Mineola Community Financial, the Bank and Mineola Community MHC and the Chief Financial Officer of the Company, of the MHC Bank and of the BankMineola Community MHC, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the consolidated financial statements and other financial information included in the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package fairly present the financial condition and results of operations of the MHC Mineola Community MHC, Mineola Community Financial and the subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the General Disclosure PackageProspectus; (iv) with respect to the Company and the Bank, including (A) they are responsible for establishing and maintaining disclosure controls and procedures; (B) they have designed such disclosure controls and procedures to ensure that material information relating to Mineola Community Financial and the ProspectusBank is made known to them; (C) they have evaluated the effectiveness of their disclosure controls and procedures; and (D) they have disclosed to BKD and the audit committee (x) all significant deficiencies in the design or operation of disclosure controls and procedures which are reasonably likely to adversely affect Mineola Community Financial’s and the Bank’s ability to record, process, summarize, and report financial data, and have identified for Mineola Community Financial’s and the Bank’s independent registered public accounting firm any material weaknesses in disclosure controls and procedures and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in Mineola Community Financial’s and the Bank’s disclosure controls and procedures.
(f) At the time As of the execution of this Agreementdate hereof, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C., BKD a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHCCompany, Mineola Community Financial, the Company Bank and the Bank Mineola Community MHC within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the FRB Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. BKD set forth in detail in such letter, nothing has come to their attention which causes them to believe that that, except as set forth in such letter, (A) the unaudited consolidated financial statements and supporting schedules of the MHC included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” or under “Recent Developments” in the Registration Statement Prospectus and Prospectus the General Disclosure Package do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited consolidated financial statements included in the Registration Statement, the Prospectus and the General Disclosure Package, (CB) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-long- term or short-term debt of the Mineola Community MHC and the Bank or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings stockholders’ equity of the MHC and the BankMineola Community MHC, in each case as compared with the amounts shown in the consolidated December 31, 2020 audited statements of financial conditions included in the Registration Statement condition or, (D) during the period from [ ]December 31, 2014 2020 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of Mineola Community MHC or increases in interest expense or the MHCprovision for loan losses, except in all instances for increases or decreases which the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement Statement, Prospectus and the General Disclosure Package, including the Prospectus Package and which that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, Mineola Community Financial, the Bank and Mineola Community MHC identified in such letter. In addition, as of the date hereof, the Agent shall have received from ▇▇▇▇ a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) until October 2020, they were the independent public accountants with respect to Mineola Community Financial, the Bank and Mineola Community MHC and within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the FRB Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇ set forth in detail in such letter, nothing has come to their attention which causes them to believe that, except as set forth in such letter, the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” in the Prospectus and the General Disclosure Package do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited consolidated financial statements included in the Registration Statement, the Prospectus and the General Disclosure Package to which their opinion applied; and (iii) in addition to the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information that are included in the Registration Statement, Prospectus and the General Disclosure Package and that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Mineola Community Financial, the Bank and Mineola Community MHC identified in such letter.
(g) At the Closing Time, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇each of BKD and ▇▇▇▇ & Company, P.C. a letter, letter dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter letters furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(h) At the Closing Time, the Securities shall have been approved for trading listing on the Nasdaq Capital Market upon notice of issuanceStock Market.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by Federal, Massachusetts or New York authorities.c
Appears in 1 contract
Sources: Agency Agreement (Texas Community Bancshares, Inc.)
Conditions of Agent’s Obligations. The Company, the Mid-Tier Company, the MHC, the Bank and the Agent Agents agree that the issuance and the sale of Securities and the issuance of the Exchange Shares and all obligations of the Agent Agents hereunder are subject to the accuracy of the representations and warranties of the Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the Mid-Tier Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, Statement shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, Prospectus shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the FRB, Commission or the OTS and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent Agents shall have received:
(1) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇▇▇▇ Lovells US ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, the Mid-Tier Company, the MHC and the Bank, in form and substance satisfactory to counsel for the AgentRepresentative, set forth on as attached hereto as Exhibit A hereto.B.
(2) The favorable opinion, dated as of the Closing Time, of local counsel acceptable to the Representative, in form and substance satisfactory to counsel for the Representative, as attached hereto as Exhibit C.
(3) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ Procter LLP, counsel for the AgentRepresentative, with respect as to such matters as the Agent Representative may reasonably require.
(34) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇▇▇▇▇▇▇▇▇ Lovells US ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇ & ▇▇▇▇▇▇ Procter LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇▇▇▇▇▇▇ Lovells US ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇ & ▇▇▇▇▇▇ Procter LLP may rely as to matters of fact on certificates of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank and certificates of public officials, and ▇. ▇▇▇▇▇▇ Procter & ▇▇▇▇▇▇ LLP may also rely on the opinion of ▇▇▇▇▇▇▇▇▇▇ Lovells US LLP▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP and/or local counsel with respect to matters set forth in paragraphs (i), (iv), (v), (vi), (xii)(A), (xiv) and (xvii).
(c) At the Closing Time referred to in Section 22 hereof, the Company, the Mid-Tier Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion OTS Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company Company, the Mid-Tier Company, the MHC or the Bank by the FRBOTS, or any other regulatory authority other than those which the FRB or the Division OTS permits to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the Mid-Tier Company, the MHC and the Bank, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent Agents shall have received a certificate of the President and Chief Executive Officer of the Company, of the Mid-Tier Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHCMid-Tier Company, of the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the Mid-Tier Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the Mid-Tier Company, the MHC or the Bank, as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, practice (iii) neither the Company Company, the Mid-Tier Company, the MHC nor the Bank shall have received from the FRB OTS any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the AgentAgents) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the Mid-Tier Company, the MHC or the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the Mid-Tier Company, the MHC and the Bank has have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission, Commission and (vii) no order suspending the Subscription and Community Offering or the Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or, to their knowledge, or threatened by the FRB OTS and no person has sought to obtain regulatory or judicial review of the action of the Division OTS in approving the Plan in accordance with the OTS Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB OTS in approving the Holding Company Conversion Application.
(e) At the Closing Time, the Agent Agents shall have received a certificate of the President and Chief Executive Officer of the Mid-Tier Company, of the MHC Company and of the Bank and the Chief Financial Officer of the Mid-Tier Company, of the MHC Company and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus fairly present the financial condition and results of operations of the MHC Mid-Tier Company and the subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus.
(f) At the time As of the execution of this Agreementdate hereof, the Agent Agents shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C., ParenteBeard LLC a letter dated such date, in form and substance satisfactory to the AgentAgents, to the effect that: (i) they are independent public accountants with respect to the MHCCompany, the Company Mid-Tier Company, the MHC and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the OTS Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent Agents and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. ParenteBeard LLC set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC Mid-Tier Company included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and Act, the Securities Act Regulations and the OTS Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-long term or short-short term debt of the MHC and the Bank Mid-Tier Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings net worth of the MHC and the BankMid- Tier Company, in each case as compared with the amounts shown in the September 30, 2010 consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from [ ]September 30, 2014 2010 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCMid-Tier Company, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which that are specified by the AgentAgents, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the Mid-Tier Company, the MHC and the Bank identified in such letter.
(g) At the Closing Time, the Agent Agents shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. ParenteBeard LLC a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
. [(h) At The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between the Agents and the persons set forth on Exhibit E hereto, relating to sales and certain other dispositions of shares of Common Stock, Mid-Tier Company Common Stock or certain other securities, shall be delivered to the Agents on or before the date hereof and shall be in full force and effect on the Closing Time, the Securities shall have been approved for trading on the Nasdaq Capital Market upon notice of issuance.]
(i) At the Closing Time, the Agent Securities and the Exchange Shares shall have been approved for quotation on the Nasdaq Global Select Market upon notice of issuance.
(j) At the Closing Time, the Agents shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(jk) At the Closing Time, counsel for the Agent Agents shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Exchange Shares as herein contemplated shall be satisfactory in form and substance to the Agent Agents and counsel for the AgentAgents.
(kl) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the AgentAgents, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, Massachusetts New Jersey or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHCBank, the Bank MHC and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC Bank and the Bank MHC herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC Bank and the Bank MHC made pursuant to the provisions hereof, to the performance by the Company, the MHC Company and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, threatened by the FRB, Commission or the FRB and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of L▇▇▇ ▇▇▇▇▇ Lovells US LLP▇▇, PC, counsel for the Company, the MHC Bank and the BankMHC, in form and substance satisfactory to counsel for the Agent, set forth on as attached hereto as Exhibit A hereto.A.
(2) The favorable opinion, dated as of the Closing Time, of ▇G▇▇▇▇▇▇ Procter LLP& K▇▇▇, S.C., counsel for the Agent, with respect as to such matters as the Agent may reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇L▇▇▇ Lovells US LLP and ▇▇▇▇▇▇, PC and G▇▇▇▇▇▇ Procter LLP & K▇▇▇, S.C. shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial financial, pro forma or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial financial, pro forma or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective effective, as of the date of the Prospectus or at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇L▇▇▇ Lovells US LLP and ▇▇▇▇▇▇, PC and G▇▇▇▇▇▇ Procter LLP & K▇▇▇, S.C. may rely as to matters of fact on certificates of officers and directors of the Company, the MHC Company and the Bank and certificates of public officials, and ▇. G▇▇▇▇▇▇ Procter LLP & K▇▇▇, S.C. may also rely on the opinion of L▇▇▇ ▇▇▇▇▇ Lovells US LLP▇▇, PC.
(c) At the Closing Time referred to in Section 22 hereof, the Company, the MHC Bank and the Bank MHC shall have completed in all material respects the conditions precedent to the Conversion Reorganization in accordance with the Plan, the applicable Conversion MHC Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Reorganization imposed upon the Company Company, the Bank or the Bank MHC by the FRB, the WDFI or the FDIC or any other regulatory authority other than those which the FRB FRB, the WDFI or the Division permits FDIC or any such other regulatory authority permit to be completed after the ConversionReorganization.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC and the Bank, considered as one enterpriseMaterial Adverse Effect, whether or not arising in the ordinary course of business consistent with past practicebusiness, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the Bank and the MHC and of the Bank and the Chief Financial Officer of the Company, of the Bank and the MHC, and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse changeMaterial Adverse Effect, (ii) there shall have been no material transaction entered into by the Company, the MHC Bank or the Bank MHC from the latest date as of which the financial condition of the Company, the MHC Company or the Bank, as set forth in the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither none of the Company nor Company, the Bank or the MHC shall have received from the FRB FRB, the WDFI or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC Bank or the BankMHC, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC Bank and the Bank has MHC have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company, the Bank or the MHC, threatened by the Commission, and (vii) no order suspending the Subscription FRB’s approval of the Holding Company Application, the WDFI’s approval of the WDFI Applications and Community Offering the FDIC’s approval of the FDIC Applications or the Syndicated Community Offering or the authorization for final use of the Prospectus transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to their knowledgethe knowledge of the Company, the Bank or the MHC, threatened by the FRB FRB, the WDFI or the FDIC and no person has sought to obtain regulatory or judicial review of the action of the Division FRB in approving the Plan in accordance with the MHC Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Holding Company Application, and (viii) no order suspending the Offerings or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the FRB.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the Bank and the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC Bank and of the BankMHC, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package fairly present the financial condition and results of operations of the MHC and the subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the General Disclosure PackageProspectus; (iv) they are responsible for establishing and maintaining disclosure controls and procedures; (v) they have designed such disclosure controls and procedures to ensure that material information relating to the Company and the Bank is made known to them; (vi) they have evaluated the effectiveness of their disclosure controls and procedures; and (vii) they have disclosed to B▇▇▇▇ ▇▇▇▇▇ and the audit committee (A) all significant deficiencies in the design or operation of disclosure controls and procedures which are reasonably likely to adversely affect the Bank’s ability to record, including process, summarize, and report financial data, and have identified for the ProspectusCompany’s and the Bank’s independent registered public accounting firm any material weaknesses in disclosure controls and procedures and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s and the Bank’s disclosure controls and procedures.
(f) At the time As of the execution of this Agreementdate hereof, the Agent shall have received from B▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ & Company, P.C., a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHC, the Company and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the MHC Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇S▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and B▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ & Company, P.C. set forth in detail in such letterletters, nothing has come to their attention which causes them to believe that that, except as set forth in such letters, (A) the unaudited consolidated financial statements and supporting schedules of the MHC included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “"Selected Consolidated Financial and Other Data” " or under "Recent Developments" in the Registration Statement Prospectus and Prospectus the General Disclosure Package do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited consolidated financial statements included in the Registration Statement, the Prospectus and the General Disclosure Package, (CB) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC and the Bank or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings of the MHC and the Bank, in each case as compared with the amounts shown in the consolidated ___________, 2018 unaudited statements of financial conditions included condition presented under the "Recent Developments" caption in the Registration Statement orStatement, or (D) during the period from [ ]___________, 2014 2018 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCBank, except in all instances for increases or decreases which the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement Statement, Prospectus and the General Disclosure Package, including the Prospectus Package and which that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the MHC Company and the Bank identified in such letter.
(g) At the Closing Time, the Agent shall have received from B▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ & Company, P.C. a letter, letter dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter letters furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(h) At the Closing Time, the Securities shall have been approved for trading listing on the Nasdaq Capital Market upon notice of issuanceOTC Pink Marketplace.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either any of the NYSE MKT, the New York Stock Exchange or Exchange, the Nasdaq Stock Market or the OTC Pink Marketplace shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either any of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by Federal, Massachusetts either Federal or New York Wisconsin authorities.
Appears in 1 contract
Sources: Agency Agreement (TEB Bancorp, Inc.)
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, Statement shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the CommissionSEC, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, Prospectus shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the FRBCommissioner, the FRB or any state securities or Blue Sky authority, and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇ Lovells US ▇▇▇▇ LLP, counsel for the Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, Agent as to matters set forth on in Exhibit A B hereto.
(2) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇ ▇▇▇▇▇▇ Procter LLP▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel for the Agent, with respect to such the matters as the Agent may reasonably requireset forth on Exhibit C hereto.
(3) In addition to giving their opinions required by subsections (b)(lb)(1) and (b)(2), respectively, of this Section, ▇▇▇▇▇ Lovells US ▇▇▇▇ LLP and ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Procter LLP & ▇▇▇▇▇▇ shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇▇ Lovells US ▇▇▇▇ LLP and ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Procter LLP & ▇▇▇▇▇▇ 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, and ▇▇▇▇ ▇▇▇▇▇▇ Procter LLP ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ may also rely on the opinion of ▇▇▇▇▇ Lovells US ▇▇▇▇ LLP.
(c) At the Closing Time referred to in Section 2, the Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company Company, the MHC or the Bank by the FRBFRB or the Commissioner, or any other regulatory authority authority, other than those which the FRB or the Division permits Commissioner permit to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC and MHC, the Bank, considered as one enterpriseChart Bank or their respective subsidiaries, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer and President of the Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC, MHC and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, ; (ii) there shall have been no material transaction entered into by the Company, the MHC MHC, the Bank, Chart Bank or the Bank their respective subsidiaries from the latest date as of which the financial condition of the Company, the MHC or the Bank, as Bank is set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither none of the Company nor Company, the MHC or the Bank shall have received from the FRB or the Commissioner any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the businessbusiness affairs, financial condition, results of operations or prospects of the Company, the MHC MHC, the Bank or the BankSubsidiaries, (iv) the representations and warranties in Section 1 2 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC and the Bank has have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission, SEC and (vii) no order suspending the Subscription and Community Offering or the Syndicated Community Offering Offerings or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or, to their knowledge, or threatened by the FRB Commissioner and no person has sought to obtain regulatory or judicial review of the action of the Division Commissioner in approving the Plan in accordance with the Conversion Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Holding Company Application.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer and President of the Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus fairly present the financial condition and results of operations of the MHC Company, the MHC, the Bank, Chart Bank and the their respective subsidiaries as of and for the dates and periods covered by the Registration Statement and the General Disclosure PackageProspectus; (iv) they are responsible for establishing and maintaining internal controls; (v) they have designed such internal controls to ensure that material information relating to the Company, including the ProspectusMHC, the Bank and the Subsidiaries is made known to them; (vi) they have evaluated the effectiveness of their internal controls; and (vii) they have disclosed to Wolf & Company, P.C. and the audit committee (A) all significant deficiencies in the design or operation of internal controls which could adversely affect the Company's, the MHC and the Bank's ability to record, process, summarize, and report financial data, and have identified for the Company's, the MHC's and the Bank's auditors any material weaknesses in internal controls and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company's, the MHC's and the Bank's internal controls.
(f1) At the time of the execution of this Agreement, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Wolf & Company, P.C., P.C. a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: that (i) they are independent public accountants with respect to the Company, the MHC, the Company Bank and the Bank Subsidiaries within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations, they are registered with Regulations and the PCAOB, Conversion Regulations and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Wolf & Company, P.C. set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the Company, the MHC and the Bank and the Subsidiaries included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and Act, the Securities Act Regulations and the Conversion Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “"Selected Consolidated Financial and Other Data” Information of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Bancorp" in the Registration Statement and the Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long-long term or short-short term debt of the Company, the MHC and the Bank and the Subsidiaries or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings net worth of the Company, the MHC and the BankBank and the Subsidiaries, in each case as compared with the amounts shown in the consolidated statements of financial conditions September 30, 2004 balance sheet included in the Registration Statement or, (D) during the period from [ ]September 30, 2014 2004 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCCompany, the MHC and the Bank and the Subsidiaries, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and the General Disclosure PackageProspectus and which are specified by the Agent, including and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the MHC, the Bank and the Subsidiaries identified in such letter.
(2) At the time of the execution of this Agreement, the Agent shall have received from Wolf & Company, P.C. a letter dated such date, in form and substance satisfactory to the Agent, to the effect that (i) they are independent public accountants with respect to Chart Bank and its subsidiaries within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the Conversion Regulations and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and Wolf & Company, P.C. set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited financial statements and supporting schedules of Chart Bank and its subsidiaries included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations and the Conversion Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Registration Statement and the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under "Selected Consolidated Financial Information of Chart Bank" in the Registration Statement and the Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long term or short term debt of Char Bank and its subsidiaries or any decrease in consolidated total assets, the allowance for loan losses, total deposits or net worth of Chart Bank and its subsidiaries, in each case as compared with the amounts shown in the September 30, 2004 balance sheet included in the Registration Statement or, (D) during the period from September 30, 2004 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Bank and the Subsidiaries, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and the Prospectus and which are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the MHC Chart Bank and the Bank its subsidiaries identified in such letter.
(g) At the Closing Time, the Agent shall have received a letter from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Wolf & Company, P.C. a letterP.C., dated as of the Closing Time, to the effect that they reaffirm it reaffirms the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five days prior to the Closing Time.
(h) At the Closing Time, the Securities shall have been approved for trading listing on the Nasdaq Capital Stock Market upon notice of issuance.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by Federal, Massachusetts or New York authorities.RP Financi
Appears in 1 contract
Sources: Agency Agreement (Benjamin Franklin Bancorp, M.H.C.)
Conditions of Agent’s Obligations. The Company, the Mid-Tier Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and the issuance of the Exchange Shares and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the Mid-Tier Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, the Mid-Tier Company, the MHC or the Bank, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, the Mid-Tier Company, the MHC or the Bank, threatened by the FRB, Commission or the Federal Reserve Board and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of L▇▇▇ ▇▇▇▇▇▇ Lovells US LLP▇▇▇▇▇▇▇▇ & S▇▇▇▇▇, P.C., counsel for the Company, the Mid-Tier Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on Agent as attached hereto as Exhibit A hereto.C.
(2) The favorable opinion, dated as of the Closing Time, of K▇▇▇▇▇▇▇▇▇ Procter T▇▇▇▇▇▇▇ & S▇▇▇▇▇▇▇ LLP, counsel for the Agent, with respect as to such matters as the Agent may shall reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, L▇▇▇ ▇▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇▇ Procter & S▇▇▇▇▇, P.C. and K▇▇▇▇▇▇▇▇▇ T▇▇▇▇▇▇▇ & S▇▇▇▇▇▇▇ LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at Closing Time, or (if applicable) that the Closing General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, L▇▇▇ ▇▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇▇ Procter & S▇▇▇▇▇, P.C. and K▇▇▇▇▇▇▇▇▇ T▇▇▇▇▇▇▇ & S▇▇▇▇▇▇▇ LLP may rely as to matters of fact on certificates of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank and certificates of public officials, and . K▇▇▇▇▇▇▇▇▇ Procter T▇▇▇▇▇▇▇ & S▇▇▇▇▇▇▇ LLP may also rely on the opinion of L▇▇▇ ▇▇▇▇▇▇ Lovells US LLP.▇▇▇▇▇▇▇▇ & S▇▇▇▇▇, P.C.
(c) At the Closing Time referred to in Section 22 hereof, the Company, the Mid-Tier Company, the MHC and the Bank shall have completed in all material respects with the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion FRB Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company Company, the Mid-Tier Company, the MHC or the Bank by the FRBFederal Reserve Board, or any other regulatory authority other than those which the FRB or the Division Federal Reserve Board permits to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC and the Bank, considered as one enterpriseMaterial Adverse Effect, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer and President of the Company, of the Mid-Tier Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHCMid-Tier Company, of the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the Mid-Tier Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the Mid-Tier Company, the MHC or the Bank, as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, practice (iii) neither the Company Company, the Mid-Tier Company, the MHC nor the Bank shall have received from the FRB Federal Reserve Board, the WDFI or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the Mid-Tier Company, the MHC or the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the Mid-Tier Company, the MHC and the Bank has have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission, Commission and (vii) no order suspending the Subscription and Community Offering Federal Reserve Board’s approval of the Conversion Application, or the Syndicated Community Offering or the authorization for final use of the Prospectus transactions contemplated thereby, has been issued and no proceedings for that purpose have been initiated or, to their knowledge, or threatened by the FRB Federal Reserve Board and no person has sought to obtain regulatory or judicial review of the action of the Division Federal Reserve Board in approving the Plan in accordance with the FRB Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB Federal Reserve Board in approving the Conversion Application or the Holding Company Application.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer and President of the Mid-Tier Company, of the MHC Company and of the Bank and the Chief Financial Officer of the Mid-Tier Company, of the Company, the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus fairly present the financial condition and results of operations of the MHC Mid-Tier Company and the subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus.
(f) At the time As of the execution of this Agreementdate hereof, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C., KPMG LLP a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHCCompany, the Company Mid-Tier Company, the MHC and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the FRB Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇S▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. KPMG LLP set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC Mid-Tier Company included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and Act, the Securities Act Regulations and the FRB Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” or under “Recent Developments” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-long term or short-short term debt of the MHC and the Bank Mid-Tier Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings shareholders’ equity of the MHC and the BankMid-Tier Company, in each case as compared with the amounts shown in the March 31, 2013 consolidated statements of financial conditions balance sheets included in the Registration Statement or, (D) during the period from [ ]March 31, 2014 2013 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCMid-Tier Company, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the Mid-Tier Company, the MHC and the Bank identified in such letter.
(g) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between the Agent and the persons set forth on Exhibit E hereto, relating to sales and certain other dispositions of shares of Common Stock, Mid-Tier Company Common Stock or certain other securities, shall be delivered to the Agent on or before the date hereof and shall be in full force and effect on the Closing Time.
(h) At the Closing Time, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. KPMG LLP a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(hi) At the Closing Time, the Securities and Exchange Shares shall have been approved for trading quotation on the Nasdaq Capital Global Select Market upon notice of issuance.
(ij) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisalAppraisal.
(jk) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Exchange Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(kl) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, Massachusetts Wisconsin or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHCMid-Tier Company, the Bank Bank, the MHC and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC Mid-Tier Company, the Bank and the Bank MHC herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC Mid-Tier Company, the Bank and the Bank MHC made pursuant to the provisions hereof, to the performance by the Company, the MHC Mid-Tier Company, the Bank and the Bank MHC of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-post- effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, threatened by the FRBCommission, the Department or the FRB and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of L▇▇▇ ▇▇▇▇▇ Lovells US LLP▇▇, PC, counsel for the Company, the MHC Mid-Tier Company, the Bank and the BankMHC, in form and substance satisfactory to counsel for the Agent, set forth on as attached hereto as Exhibit A hereto.A.
(2) The favorable opinion, dated as of the Closing Time, of Silver, F▇▇▇▇▇▇▇, T▇▇▇ Procter & T▇▇▇▇▇▇ LLP, counsel for the Agent, with respect as to such matters as the Agent may reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇L▇▇▇ Lovells US LLP and ▇▇▇▇▇▇, PC and Silver, F▇▇▇▇▇▇▇, T▇▇▇ Procter & T▇▇▇▇▇▇ LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial financial, pro forma, appraisal or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial financial, pro forma, appraisal or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective effective, as of the date of the Prospectus or at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇L▇▇▇ Lovells US LLP and ▇▇▇▇▇▇, PC and S▇▇▇▇▇, F▇▇▇▇▇▇▇, T▇▇▇ Procter & T▇▇▇▇▇▇ LLP may rely as to matters of fact on certificates of officers and directors of the Company, the MHC Company and the Bank and certificates of public officials. Silver, and F▇▇▇▇▇▇▇, T▇▇▇ Procter & T▇▇▇▇▇▇ LLP may also rely on the opinion of L▇▇▇ ▇▇▇▇▇ Lovells US LLP▇▇, PC.
(c) At the Closing Time referred to in Section 22 hereof, the Company, the MHC Mid-Tier Company, the Bank and the Bank MHC shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations, the applicable FRB Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company Company, the Mid-Tier Company, the Bank or the Bank MHC by the FRBDepartment, the FRB or any other regulatory authority other than those which the Department, the FRB or the Division permits any such other regulatory authority permit to be completed after the consummation of the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC and the Bank, considered as one enterpriseMaterial Adverse Effect, whether or not arising in the ordinary course of business consistent with past practicebusiness, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC and of Mid-Tier Company, the Bank and the Chief Financial Officer MHC and the Treasurer of the Company, of the Mid-Tier Company, the Bank and the MHC, and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse changeMaterial Adverse Effect, (ii) there shall have been no material transaction entered into by the Company, the MHC Mid-Tier Company, the Bank or the Bank MHC from the latest date as of which the financial condition of the Company, the MHC Mid-Tier Company, the Bank or the BankMHC, as set forth in the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither none of the Company nor Company, the Mid-Tier Company, the Bank or the MHC shall have received from the FRB FRB, the Department or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which would materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC Mid-Tier Company, the Bank or the BankMHC, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC Mid-Tier Company, the Bank and the Bank has MHC have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or or, to the knowledge of the Company, the Mid-Tier Company, the Bank and the MHC, threatened by the Commission, (vii) no order suspending the FRB’s approval of the Holding Company Application or the transactions contemplated thereby or the Department’s or the FRB’s approval of the Conversion Applications, as applicable, or the transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company, the Mid-Tier Company, the Bank or the MHC, threatened by the FRB or the Department and no person has sought to obtain regulatory or judicial review of the action of the Department or the FRB in approving the Plan in accordance with the Conversion Regulations nor has any person sought to obtain regulatory or judicial review of the action of the Department or the FRB in approving the Conversion Applications, as applicable, or the FRB in approving the Holding Company Application, and (viiviii) no order suspending the Subscription and Community Offering Offerings or the Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or, to their knowledge, threatened by the FRB and no person has sought to obtain regulatory Department or judicial review of the action of the Division in approving the Plan nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Holding Company ApplicationFRB.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC and of Mid-Tier Company, the Bank and the Chief Financial Officer MHC and the Treasurer of the Company, of the MHC Mid-Tier Company, the Bank and of the BankMHC, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the consolidated financial statements and other financial information included in the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package fairly present the financial condition and results of operations of the MHC MHC, the Mid-Tier Company and the subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus.
(f) At the time As of the execution of this Agreementdate hereof, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇P▇▇▇▇▇ & Company, P.C., M▇▇▇▇ a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHCCompany, the Company Mid-Tier Company, the Bank and the Bank MHC within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the Conversion Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇S▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions opinion therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇, ▇▇P▇▇▇▇▇ & Company, P.C. M▇▇▇▇ set forth in detail in such letter, nothing has come to their attention which causes them to believe that that, except as set forth in such letter, (A) the unaudited consolidated financial statements and supporting schedules of the MHC included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income loss set forth under “Selected Consolidated Financial and Other Data” in the Registration Statement Prospectus and Prospectus the General Disclosure Package do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited consolidated financial statements included in the Registration Statement, the Prospectus and the General Disclosure Package, (CB) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC and Mid-Tier Company, the Bank or the MHC or any decrease in consolidated total assets, the allowance for loan credit losses, total deposits or retained earnings equity of the MHC and Mid-Tier Company, the BankBank or the MHC, in each case as compared with the amounts shown in the March 31, 2024 unaudited consolidated statements of financial conditions included in the Registration Statement balance sheet or, (DC) during the period from [ ]March 31, 2014 2024 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan credit losses, income (loss) before income tax expense (benefit) or net income (loss) of the MHCMHC or increases in interest expense or the provision for credit losses, except in all instances for increases or decreases which the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement Statement, Prospectus and the General Disclosure Package, including the Prospectus Package and which that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the MHC Company, the Mid-Tier Company, the Bank and the Bank MHC identified in such letter.
(g) At the Closing Time, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇P▇▇▇▇▇ & Company, P.C. M▇▇▇▇ a letter, letter dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(h) At the Closing Time, the Securities shall have been approved for trading quotation on the Nasdaq Capital Market upon notice of issuanceOTCQB.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either any of the NYSE MKT, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either any of said Exchanges exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by Federal, Massachusetts either Federal or New York Wisconsin authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC Company and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC Company and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC Company and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, Statement shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, Prospectus shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the FRB, Commission or the OTS and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇ ▇▇▇▇▇▇ Lovells US LLP▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., counsel for the Company, the MHC Company and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on Agent as attached hereto as Exhibit A hereto.B.
(2) The favorable opinion, dated as of the Closing Time, of Silver, ▇▇▇▇▇▇▇▇ Procter LLP& Taff, L.L.P., counsel for the Agent, with respect to such matters as the Agent may reasonably require.attached hereto as Exhibit C.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇▇▇ ▇▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇▇ Procter LLP & ▇▇▇▇▇▇, P.C. and Silver, ▇▇▇▇▇▇▇▇ & Taff, L.L.P. shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at Closing Time, or (if applicable) that the Closing General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter LLP 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, and ▇▇▇▇▇▇▇ Procter LLP may also rely on the opinion of ▇▇▇▇▇ Lovells US LLP.
(c) At the Closing Time referred to in Section 22 hereof, the Company, the MHC Company and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion OTS Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company or the Bank by the FRBOTS, or any other regulatory authority other than those which the FRB or the Division OTS permits to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC Company and the Bank, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and and/or Chief Executive Officer of the Company, of the MHC and of the Bank and the Chief Financial Officer chief financial or chief accounting officer of the Company, of the MHC, Company and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the MHC Company or the Bank from the latest date as of which the financial condition of the Company, the MHC Company or the Bank, as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, practice (iii) neither the Company nor the Bank shall have received from the FRB OTS any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC Company or the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC Company and the Bank has have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission, Commission and (vii) no order suspending the Subscription and Community Offering or the Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or, to their knowledge, or threatened by the FRB OTS and no person has sought to obtain regulatory or judicial review of the action of the Division OTS in approving the Plan in accordance with the OTS Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB OTS in approving the Holding Company Conversion Application.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer and/or President of the Company, of the MHC Company and of the Bank and the Chief Financial Officer of the Company, of the MHC Company and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus fairly present the financial condition and results of operations of the MHC and the subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus.
(f) At the time As of the execution of this Agreementdate hereof, the Agent shall have received from ▇▇▇McGladrey & ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C., L.L.P. a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHC, the Company and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the OTS Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇McGladrey & ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. L.L.P. set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC Bank included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and Act, the Securities Act Regulations and the OTS Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-long term or short-short term debt of the MHC and the Bank or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings net worth of the MHC and the Bank, in each case as compared with the amounts shown in the consolidated December 31, 2009 statements of financial conditions included in the Registration Statement or, (D) during the period from [ ]March 31, 2014 2010 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCBank, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the MHC Company and the Bank identified in such letter.
(g) At the Closing Time, the Agent shall have received from ▇▇▇McGladrey & ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. L.L.P. a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(h) At the Closing Time, the Securities shall have been approved for trading quotation on the Nasdaq Capital Market upon notice of issuance.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, Massachusetts or Maryland, New York or Texas authorities.
(l) A memorandum relating to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Securities under applicable state securities law (the “Blue Sky Survey”) from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. relating to the Offering, including Agent’s participation therein, shall have been furnished prior to the mailing of the Prospectus to the Company with a copy thereof addressed to Agent or upon which ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. shall state the Agent may rely.
Appears in 1 contract
Sources: Agency Agreement (SP Bancorp, Inc.)
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC Company and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC Company and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC Company and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, ; no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the FRBWDFI, the FRB or the FDIC; and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇ Lovells US LLPBreyer & Associates PC (“Breyer”), counsel for the Company, the MHC Company and the Bank, in form and substance satisfactory to counsel for the Agent, to the effect set forth on Exhibit A hereto.
(2) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇ ▇▇▇▇▇▇ Procter LLP▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, PC (“▇▇▇▇ ▇▇▇▇▇▇”), counsel for the Agent, with respect to the matters set forth in clauses (i), (ii), (v), (vii), (viii) (solely as to preemptive rights arising by operation of law), (xv), (xvi) and (xviii) of Exhibit A and such other matters as the Agent may reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇Breyer and ▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinionsTo the extent not inconsistent with the assumptions, ▇qualifications and limitations which shall be set forth in the opinion, the opinions of Breyer and ▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter LLP will be governed by, and shall be interpreted in accordance with, the Legal Opinion Accord (the “Accord”) of the American Bar Association Section of Business Law (1991). The clause “to counsel’s knowledge,” “to such counsel’s actual knowledge” or similar terms used in said opinion shall have the meaning set forth in the Accord for the term “Actual Knowledge.” In giving their opinions, Breyer and ▇▇▇▇ ▇▇▇▇▇▇ may rely as to matters of fact on certificates of officers and directors of the Company, the MHC Bank and the Bank Subsidiaries and certificates of public officials, and ▇▇▇▇ ▇▇▇▇▇▇ Procter LLP may also rely on the opinion of ▇▇▇▇▇ Lovells US LLPBreyer for purposes of issuing the opinion set forth in Section 5(b)(2).
(c) At the Closing Time referred to in Section 2, the Company, the MHC Company and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company or the Bank by the FRB, the FDIC or the WDFI, or any other regulatory authority other than those which the FRB WDFI, the FDIC or the Division permits FRB permit to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, operations or business affairs or prospects of the Company, the MHC Company and the BankBank and the Subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC Company and of the Bank and the Chief Financial Officer of the Company, of the MHC, Company and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the MHC Bank or any of the Bank Subsidiaries from the latest date as of which the financial condition of the Company, the MHC Bank or any of the BankSubsidiaries, as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, practice (iii) neither the Company nor the Bank shall have received from the WDFI, the FRB or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC Company or the Bank, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC Company and the Bank has complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission, and (vii) no order suspending the Subscription and Community Offering or the Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or, to their knowledge, or threatened by the WDFI, the FRB or the FDIC and no person has sought to obtain regulatory or judicial review of the action of the Division WDFI in approving the Plan in accordance with the Conversion Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Holding Company Application.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC Company and of the Bank and the Chief Financial Officer of the Company, of the MHC Company and of the Bank, dated as of the Closing Time, to the effect that (i) they have he has reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on their his knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on their his knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, fairly present the consolidated financial condition and results of operations of the MHC and the subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus; (iv) he is responsible for establishing and maintaining disclosure controls and procedures; (v) he has designed such disclosure controls and procedures to ensure that material information relating to the Company and the Bank is made known to them; (vi) he has evaluated the effectiveness of their disclosure controls and procedures; and (vii) he has disclosed to ▇▇▇▇ ▇▇▇▇▇ LLP and the audit committee (A) all significant deficiencies in the design or operation of disclosure controls and procedures which are reasonably likely to adversely affect the Company’s and the Bank’s ability to record, process, summarize, and report financial data, and have identified for the Company’s and the Bank’s auditors any material weaknesses in disclosure controls and procedures and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s and the Bank’s disclosure controls and procedures.
(f) At the time of the execution of this Agreement, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ & Company, P.C.LLP, a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHCCompany, the Company Bank and the Bank Subsidiaries within the meaning of the Code of Ethics of the American Institute of Certified Public Accountants, the Securities Act and Act, the Securities Act Regulations and the Conversion Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Sarbanes‑Oxley Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ & Company, P.C. LLP set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC Company included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and Act, the Securities Act Regulations and the Conversion Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” and, if applicable, under “Recent Developments” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC and the Bank or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings of the MHC and the Bank, in each case as compared with the amounts shown in the consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from [ ], 2014 _______________ to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCCompany, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the MHC Company and the Bank identified in such letter.
(g) At the Closing Time, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ & Company, P.C. LLP a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five days prior to the Closing Time.
(h) At the Closing Time, the Securities shall have been approved for trading on the Nasdaq Capital Market upon notice of issuance.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by Federal, Massachusetts Federal or Washington or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the Mid-Tier Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and the issuance of the Exchange Shares and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the Mid-Tier Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, Statement shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the Commission, no order suspending the Offerings Subscription and Community Offering or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, Prospectus shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the FRB, Commission or the OTS and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇▇▇▇ Lovells US ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, the Mid-Tier Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on Agent as attached hereto as Exhibit A hereto.A.
(2) The favorable opinion, dated as of the Closing Time, of Silver, ▇▇▇▇▇▇▇▇ Procter LLP& Taff, L.L.P., counsel for the Agent, with respect to such matters as the Agent may reasonably require.attached hereto as Exhibit B.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇▇▇▇▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇▇ Procter LLP and Silver, ▇▇▇▇▇▇▇▇ & Taff, L.L.P. shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at Closing Time, or (if applicable) that the Closing General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter LLP 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, and ▇▇▇▇▇▇▇ Procter LLP may also rely on the opinion of ▇▇▇▇▇ Lovells US LLP.
(c) At the Closing Time referred to in Section 22 hereof, the Company, the Mid-Tier Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion OTS Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company Company, the Mid-Tier Company, the MHC or the Bank by the FRBOTS, or any other regulatory authority other than those which the FRB or the Division OTS permits to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, operations or business affairs or prospects of the Company, the Mid-Tier Company, the MHC and the Bank, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the Mid-Tier Company, of the MHC and of the Bank and the Chief Financial Officer chief financial or chief accounting officer of the Company, of the MHCMid-Tier Company, of the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the Mid-Tier Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the Mid-Tier Company, the MHC or the Bank, as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, practice (iii) neither the Company Company, the Mid-Tier Company, the MHC nor the Bank shall have received from the FRB OTS any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, condition or results of operations or prospects of the Company, the Mid-Tier Company, the MHC or the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the Mid-Tier Company, the MHC and the Bank has have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission, Commission and (vii) no order suspending the Subscription and Community Offering or the Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or, to their knowledge, or threatened by the FRB OTS and no person has sought to obtain regulatory or judicial review of the action of the Division OTS in approving the Plan in accordance with the OTS Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB OTS in approving the Holding Company Conversion Application.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer and President of the Mid-Tier Company, of the MHC Company and of the Bank and the Chief Financial Officer of the Mid-Tier Company, of the MHC Company and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus fairly present the financial condition and results of operations of the MHC Mid-Tier Company and the subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus.
(f) At the time As of the execution of this Agreementdate hereof, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C., ParenteBeard LLC a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) for the two-year period ended September 30, 2010, they are were the independent public accountants with respect to the MHCMid-Tier Company, the Company MHC and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the OTS Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. ParenteBeard LLC set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC Mid-Tier Company included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and Act, the Securities Act Regulations and the OTS Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-long term or short-short term debt of the MHC and the Bank Mid-Tier Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings net worth of the MHC and the BankMid-Tier Company, in each case as compared with the amounts shown in the September 30, 2010 consolidated statements of financial conditions condition included in the Registration Statement or, (D) during the period from [ ]September 30, 2014 2010 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCMid-Tier Company, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus disclose have occurred or may occur; and (iviii) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iiiii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the Mid-Tier Company, the MHC and the Bank identified in such letter.
(g) At the Closing Time, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. ParenteBeard LLC a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(h) At the Closing Time, the Securities shall have been approved for trading on the Nasdaq Capital Market upon notice of issuance.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(ji) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Exchange Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(kj) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, Massachusetts Pennsylvania or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the Mid-Tier Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and the issuance of the Exchange Shares and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the Mid-Tier Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, Statement shall have been issued under the Securities Act or proceedings therefor initiated or, or to the knowledge of the Company, Company threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, Prospectus shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the FRB, Commission or the OTS and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇▇▇▇ Lovells US ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, the Mid-Tier Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on Agent as attached hereto as Exhibit A hereto.
(2) The favorable opinion, dated as of the Closing Time, of Elias, Matz, ▇▇▇▇▇▇▇ Procter LLP& ▇▇▇▇▇▇▇ L.L.P., counsel for the Agent, with respect to such matters as the Agent may reasonably requireattached hereto as Exhibit B hereto.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇▇▇▇▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇▇ Procter & ▇▇▇▇▇▇▇▇ LLP and Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P. shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statementsstatements and schedules, notes to financial statements, stock valuation information and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statementsstatements and schedules, notes to financial statements, stock valuation information and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at Closing Time, or (if applicable) that the Closing General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇▇▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇▇ Procter & ▇▇▇▇▇▇▇▇ LLP and Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. may rely as to matters of fact on certificates of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank and certificates of public officials. Elias, and Matz, ▇▇▇▇▇▇▇ Procter LLP & ▇▇▇▇▇▇▇ L.L.P. may also rely on the opinion of ▇▇▇▇▇▇▇▇▇▇ Lovells US ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP.
(c) At the Closing Time referred to in Section 22 hereof, the Company, the Mid-Tier Company, the MHC and the Bank shall have completed in all material respects with the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion OTS Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company Company, the Mid-Tier Company, the MHC or the Bank by the FRB, OTS or any other regulatory authority other than those which the FRB or the Division OTS permits to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC Mid-Tier Company, the MHC, the Bank and the BankSubsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the Mid-Tier Company, of the MHC and of the Bank and the Chief Financial Officer chief financial or chief accounting officer of the Company, of the MHCMid-Tier Company, of the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the Mid-Tier Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the Mid-Tier Company, the MHC or the Bank, as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither the Company Company, the Mid-Tier Company, the MHC nor the Bank shall have received from the FRB OTS any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations operations, business affairs or prospects of the Company, the MHC or Mid-Tier Company, the BankMHC, the Bank and the Subsidiaries, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the Mid-Tier Company, the MHC and the Bank has have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission, Commission and (vii) no order suspending the Subscription and Community Offering or the Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or, to their knowledge, or threatened by the FRB OTS and no person has sought to obtain regulatory or judicial review of the action of the Division OTS in approving the Plan in accordance with the OTS Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB OTS in approving the Conversion Application or the Holding Company Application.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of the Mid-Tier Company, of the MHC Company and of the Bank and the Chief Financial Officer chief financial or chief accounting officer of the Mid-Tier Company, of the MHC Company and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus fairly present the financial condition and results of operations of the MHC Mid-Tier Company and the subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus.
(f) At the time As of the execution of this Agreementdate hereof, the Agent shall have received from ▇▇▇▇▇▇▇▇▇Clark, Schaefer, ▇▇▇▇▇▇▇ & Company, P.C., Co. a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) that they are the independent public accountants with respect to the MHCCompany, the Company Mid-Tier Company, the MHC and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the OTS Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as (but not an audit examination in accordance with the auditing standards of the PCAOB) consisting of a review in accordance with Statement on Auditing Standards (SAS) No. 100, “Interim Financial Information” (AU Section 722) agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇Clark, Schaefer, ▇▇▇▇▇▇▇ & Company, P.C. Co. set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC Mid-Tier Company included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and Act, the Securities Act Regulations and the OTS Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” or under “Recent Developments” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC and the Bank Mid-Tier Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings net worth of the MHC and the BankMid-Tier Company, in each case as compared with the amounts shown in the consolidated statements of financial conditions included in the Registration Statement orStatement, or (D) during the period from [ ]March 31, 2014 2011 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCMid-Tier Company, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the Mid-Tier Company, the MHC and the Bank identified in such letter.
(g) At the Closing Time, the Agent shall have received from ▇▇▇▇▇▇▇▇▇Clark, Schaefer, ▇▇▇▇▇▇▇ & Company, P.C. Co. a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(h) At the Closing Time, the Securities and Exchange Shares shall have been approved for trading quotation on the Nasdaq Capital Global Market upon notice of issuance.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Exchange Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, Massachusetts Indiana or New York authorities.
(l) The “lock-up” agreements, each substantially in the form of Exhibit C hereto, between the Agent and the persons set forth on Exhibit D hereto, relating to sales and certain other dispositions of shares of Common Stock or certain other securities, shall be delivered to the Agents on or before the date hereof and shall be in full force and effect on the Closing Date.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC Company and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC Company and the officers and trustees of Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC Company and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, threatened by the FRBCommission, the PDB, the FDIC or the FRB and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇ ▇▇ Lovells US LLP▇▇▇▇▇, PC, counsel for the Company, the MHC Company and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on as attached hereto as Exhibit A hereto.A.
(2) The favorable opinion, dated as of the Closing Time, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ Procter LLP, counsel for the Agent, with respect as to such matters as the Agent may reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇▇▇ ▇▇▇▇▇▇, PC and Silver, ▇▇▇▇▇▇▇▇, ▇▇▇▇ Lovells US LLP and & ▇▇▇▇▇▇▇ Procter LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial financial, pro forma or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial financial, pro forma or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective effective, as of the date of the Prospectus or at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇ ▇▇▇▇▇▇, PC and Silver, ▇▇▇▇▇▇▇▇, ▇▇▇▇ Lovells US LLP and & ▇▇▇▇▇▇▇ Procter LLP may rely as to matters of fact on certificates of officers and directors of the Company, the MHC Company and the Bank and certificates of public officials. Silver, and ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ Procter LLP may also rely on the opinion of ▇▇▇▇ ▇▇ Lovells US LLP▇▇▇▇▇, PC.
(c) At the Closing Time referred to in Section 22 hereof, the Company, the MHC Company and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company or the Bank by the FRB, the PDB or the FDIC or any other regulatory authority other than those which the FRB FRB, the PDB or the Division permits FDIC or any such other regulatory authority permit to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC and the Bank, considered as one enterpriseMaterial Adverse Effect, whether or not arising in the ordinary course of business consistent with past practicebusiness, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC Company and of the Bank and the Chief Financial Officer of the Company, of the MHC, Company and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse changeMaterial Adverse Effect, (ii) there shall have been no material transaction entered into by the Company, the MHC Company or the Bank from the latest date as of which the financial condition of the Company, the MHC Company or the Bank, as set forth in the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither the Company nor the Bank shall have received from the FRB FRB, the PDB or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC or Company and the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC Company and the Bank has have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company or the Bank, threatened by the Commission, and (vii) no order suspending the Subscription and Community Offering PDB’s approval of the Conversion Applications or the Syndicated Community Offering FRB’s or PDB’s approval of the Holding Company Applications or the authorization for final use of the Prospectus transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to their knowledgethe knowledge of the Company or the Bank, threatened by the PDB or the FRB and no person has sought to obtain regulatory or judicial review of the action of the Division PDB in approving the Plan in accordance with the Pennsylvania Conversion Law nor has any person sought to obtain regulatory or judicial review of the action of the PDB in approving the Conversion Applications or the FRB in approving the Holding Company ApplicationApplications, and (viii) no order suspending the Subscription and Community Offering or the Syndicated Offering or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the PDB, the FDIC or the FRB.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC Company and of the Bank and the Chief Financial Officer of the Company, of the MHC Company and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package fairly present the financial condition and results of operations of the MHC and the subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the General Disclosure PackageProspectus; (iv) they are responsible for establishing and maintaining disclosure controls and procedures; (v) they have designed such disclosure controls and procedures to ensure that material information relating to the Company and the Bank is made known to them; (vi) they have evaluated the effectiveness of their disclosure controls and procedures; and (vii) they have disclosed to BDO USA LLP and the audit committee (A) all significant deficiencies in the design or operation of disclosure controls and procedures which are reasonably likely to adversely affect the Bank’s ability to record, including process, summarize, and report financial data, and have identified for the ProspectusCompany’s and the Bank’s independent registered public accounting firm any material weaknesses in disclosure controls and procedures and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s and the Bank’s disclosure controls and procedures.
(f) At the time As of the execution of this Agreementdate hereof, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C., BDO USA LLP a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHC, the Company and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the Conversion Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. BDO USA LLP set forth in detail in such letterletters, nothing has come to their attention which causes them to believe that that, except as set forth in such letters, (A) the unaudited consolidated financial statements and supporting schedules of the MHC included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other DataData of Huntingdon Valley Bank” or under “Recent Developments” in the Registration Statement Prospectus and Prospectus the General Disclosure Package do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited consolidated financial statements included in the Registration Statement, the Prospectus and the General Disclosure Package, (CB) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC and the Bank or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings of the MHC and the Bank, in each case as compared with the amounts shown in the consolidated [ ], 2016 unaudited statements of financial conditions included condition presented under the “Recent Developments” caption in the Registration Statement or, (D) during the period from [ ], 2014 2016 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCBank, except in all instances for increases or decreases which the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement Statement, Prospectus and the General Disclosure Package, including the Prospectus Package and which that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the MHC Company and the Bank identified in such letter.
(g) At the Closing Time, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. BDO USA LLP a letter, letter dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter letters furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(h) At the Closing Time, the Securities shall have been approved for trading listing on the Nasdaq Capital Market upon notice of issuanceStock Market.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either any of the NYSE MKT, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either any of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, Massachusetts Pennsylvania or New York authorities.
Appears in 1 contract
Sources: Agency Agreement (HV Bancorp, Inc.)
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC Company and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC Company and the officers and trustees of Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC Company and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, threatened by the FRBCommission, the NYSDFS, the FDIC or the FRB and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇ ▇▇ Lovells US LLP▇▇▇▇▇, PC, counsel for the Company, the MHC Company and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on as attached hereto as Exhibit A hereto.C.
(2) The favorable opinion, dated as of the Closing Time, of Silver, ▇▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇ Procter LLP, counsel for the Agent, with respect as to such matters as the Agent may reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇▇▇ ▇▇▇▇▇▇, PC and Silver, ▇▇▇▇▇▇▇▇, ▇▇▇▇ Lovells US LLP and & ▇▇▇▇▇▇▇ Procter LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial financial, pro forma or statistical data included thereintherein or omitted therefrom, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial financial, pro forma or statistical data included thereintherein or omitted therefrom, as to which counsel need make no statement), at the time the Registration Statement became effective effective, as of the date of the Prospectus or at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇ ▇▇ Lovells US LLP ▇▇▇▇▇, PC and Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ Procter LLP may rely as to matters of fact on certificates of officers and directors of the Company, the MHC Company and the Bank and certificates of public officials. Silver, and ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ Procter LLP may also rely on the opinion of ▇▇▇▇ ▇▇ Lovells US LLP▇▇▇▇▇, PC.
(c) At the Closing Time referred to in Section 22 hereof, the Company, the MHC Company and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company or the Bank by the FRB, the NYSDFS or the FDIC or any other regulatory authority other than those which the FRB FRB, the NYSDFS or the Division permits FDIC or any such other regulatory authority permit to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC and the Bank, considered as one enterpriseMaterial Adverse Effect, whether or not arising in the ordinary course of business consistent with past practicebusiness, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC Company and of the Bank and the Chief Financial Officer of the Company, of the MHC, Company and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse changeMaterial Adverse Effect, (ii) there shall have been no material transaction entered into by the Company, the MHC Company or the Bank from the latest date as of which the financial condition of the Company, the MHC Company or the Bank, as set forth in the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither the Company nor the Bank shall have received from the FRB FRB, the NYSDFS or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC or Company and the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC Company and the Bank has have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company or the Bank, threatened by the Commission, and (vii) no order suspending the Subscription and Community Offering NYSDFS’ approval of the Conversion Applications or the Syndicated Community Offering FRB’s or NYSDFS’ approval of the Holding Company Applications or the authorization for final use of the Prospectus transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to their knowledgethe knowledge of the Company or the Bank, threatened by the NYSDFS or the FRB and no person has sought to obtain regulatory or judicial review of the action of the Division NYSDFS in approving the Plan in accordance with the New York Conversion Law nor has any person sought to obtain regulatory or judicial review of the action of the NYSDFS in approving the Conversion Applications or the FRB or the NYSDFS in approving the Holding Company ApplicationApplications, and (viii) no order suspending the Subscription and Community Offering, the Syndicated Offering or the Public Offering or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the NYSDFS, the FDIC or the FRB.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC Company and of the Bank and the Chief Financial Officer of the Company, of the MHC Company and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package fairly present the financial condition and results of operations of the MHC and the subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including Prospectus; (iv) they are responsible for establishing and maintaining disclosure controls and procedures; (v) they have designed such disclosure controls and procedures to ensure that material information relating to the ProspectusCompany and the Bank is made known to them.
(f) At the time As of the execution of this Agreementdate hereof, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇ & Company, P.C., LLP a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHC, the Company and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the Conversion Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇ & Company, P.C. LLP set forth in detail in such letter, nothing has come to their attention which causes them to believe that that, except as set forth in such letter, (A) the unaudited consolidated financial statements and supporting schedules of the MHC Bank included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and Act, the Securities Act Regulations and the Conversion Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” or under “Recent Developments” in the Registration Statement Prospectus and Prospectus the General Disclosure Package do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited consolidated financial statements included in the Registration Statement, the Prospectus and the General Disclosure Package, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC and the Bank or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings of the MHC and the Bank, in each case as compared with the amounts shown in the December 31, 2016 unaudited consolidated statements of financial conditions included condition presented under the “Recent Developments” caption in the Registration Statement or, (D) during the period from [ ]December 31, 2014 2016 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCBank, except in all instances for increases or decreases which the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement Statement, Prospectus and the General Disclosure Package, including the Prospectus Package and which that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the MHC Company and the Bank identified in such letter.
(g) At the Closing Time, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇ & Company, P.C. LLP a letter, letter dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter letters furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) business days prior to the Closing Time.
(h) At the Closing Time, the Securities and the Foundation Shares shall have been approved for trading listing on the Nasdaq Capital Market upon notice of issuanceStock Market.
(i) At the Closing Time, the Agent Bank shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the issuance and contribution of the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either any of the NYSE MKT, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either any of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by Federal, Massachusetts either Federal or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The CompanyMHC, the MHCCompany, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the CompanyMHC, the MHC Company and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the CompanyMHC, the MHC Company and the Bank made pursuant to the provisions hereof, to the performance by the CompanyMHC, the MHC Company and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, threatened by the FRBCommission, or the FRB and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of K▇▇▇▇▇▇▇▇▇ Lovells US T▇▇▇▇▇▇▇ & S▇▇▇▇▇▇▇ LLP, counsel for the CompanyMHC, the MHC Company and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on as attached hereto as Exhibit A hereto.C.
(2) The favorable opinion, dated as of the Closing Time, of Silver, F▇▇▇▇▇▇▇, Taff & T▇▇▇▇▇▇ Procter LLP, counsel for the Agent, with respect as to such matters as the Agent may reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, K▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter T▇▇▇▇▇▇▇ & S▇▇▇▇▇▇▇ LLP and Silver, F▇▇▇▇▇▇▇, Taff & T▇▇▇▇▇▇ LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial financial, pro forma or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial financial, pro forma or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective effective, as of the date of the Prospectus or at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, K▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter T▇▇▇▇▇▇▇ &Stockton LLP and Silver, F▇▇▇▇▇▇▇, Taff & T▇▇▇▇▇▇ LLP may rely as to matters of fact on certificates of officers and directors of the CompanyMHC, the MHC Company and the Bank and certificates of public officials. Silver, and F▇▇▇▇▇▇▇, Taff & T▇▇▇▇▇▇ Procter LLP may also rely on the opinion of K▇▇▇▇▇▇▇▇▇ Lovells US T▇▇▇▇▇▇▇ & S▇▇▇▇▇▇▇ LLP.
(c) At the Closing Time referred to in Section 22 hereof, the Company, the MHC Company and the Bank shall have completed in all material respects the conditions precedent to the Conversion Offerings in accordance with the Plan, the applicable Conversion MHC Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Offerings imposed upon the Company or the Bank by the FRB, FRB or any other regulatory authority other than those which the FRB or the Division permits any such other regulatory authority do not require or permit to be completed after the ConversionOfferings.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC and the Bank, considered as one enterpriseMaterial Adverse Effect, whether or not arising in the ordinary course of business consistent with past practicebusiness, and the Agent shall have received a certificate of the President and Chief Executive Officer of the CompanyMHC, of the MHC Company and of the Bank and the Chief Financial Officer of the Company, of the MHC, the Company and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse changeMaterial Adverse Effect, (ii) there shall have been no material transaction entered into by the Company, the MHC Company or the Bank from the latest date as of which the financial condition of the Company, the MHC Company or the Bank, as set forth in the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither none of the Company nor Company, the MHC or the Bank shall have received from the FRB or the OCC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC or and the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC and the Bank has have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company, the MHC or the Bank, threatened by the Commission, and (vii) no order suspending the Subscription and Community Offering FRB’s approval of the FRB Application or the Syndicated Community Offering or the authorization for final use of the Prospectus transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to their knowledgethe knowledge of the Company, the MHC or the Bank, threatened by the FRB and no person has sought to obtain regulatory or judicial review of the action of the Division FRB in approving the Plan in accordance with the MHC Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Holding Company FRB Application, and (viii) no order suspending the Subscription and Community Offering, the Syndicated Offering or the Public Offering or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the FRB.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of the CompanyMHC, of the MHC Company and of the Bank and the Chief Financial Officer of the CompanyMHC, of the MHC Company and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package fairly present the financial condition and results of operations of the MHC and the subsidiaries Company as of and for the dates and periods covered by the Registration Statement and the General Disclosure PackageProspectus; (iv) they are responsible for establishing and maintaining disclosure controls and procedures; (v) they have designed such disclosure controls and procedures to ensure that material information relating to the Company, including the ProspectusMHC and the Bank is made known to them; (vi) they have evaluated the effectiveness of their disclosure controls and procedures; and (vii) they have disclosed to KPMG LLP and the audit committee (A) all significant deficiencies in the design or operation of disclosure controls and procedures which are reasonably likely to adversely affect the Bank’s ability to record, process, summarize, and report financial data, and have identified for the Company’s and the Bank’s independent registered public accounting firm any material weaknesses in disclosure controls and procedures and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s and the Bank’s disclosure controls and procedures.
(f) At the time As of the execution of this Agreementdate hereof, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C., KPMG LLP a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHC, the Company and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the MHC Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇S▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. KPMG LLP set forth in detail in such letterletters, nothing has come to their attention which causes them to believe that that, except as set forth in such letters, (A) the unaudited consolidated financial statements and supporting schedules of the MHC included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” or under “Recent Developments” in the Registration Statement Prospectus and Prospectus the General Disclosure Package do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited consolidated financial statements included in the Registration Statement, the Prospectus and the General Disclosure Package, (CB) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC and the Bank Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings total stockholders’ equity of the MHC and the BankCompany, in each case as compared with the amounts shown in the [December 31], 2017 unaudited consolidated statements of financial conditions included condition presented under the “Recent Developments” caption in the Registration Statement or, (DC) during the period from [ [December 31], 2014 2017 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCCompany, except in all instances for increases or decreases which the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement Statement, Prospectus and the General Disclosure Package, including the Prospectus Package and which that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the MHC Company and the Bank identified in such letter.
(g) At the Closing Time, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. KPMG LLP a letter, letter dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter letters furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(h) At the Closing Time, the Securities and the Foundation Shares shall have been approved for trading listing on the Nasdaq Capital Market upon notice of issuanceStock Market.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the issuance and contribution of the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either any of the NYSE MKT, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either any of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by Federal, Massachusetts either Federal or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHC, the Mid-Tier, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC MHC, the Mid-Tier and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC MHC, the Mid-Tier and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC MHC, the Mid-Tier and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the FRB, and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇ ▇▇▇▇▇▇ Lovells US LLP▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., counsel for the Company, the MHC MHC, the Mid-Tier and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on Exhibit A hereto.
(2) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇ Procter LLP, counsel for the Agent, with respect to the matters set forth in clauses [ ] of Exhibit A and such other matters as the Agent may reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇▇▇ ▇▇▇▇▇▇ Lovells US LLP ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. and ▇▇▇▇▇▇▇ Procter LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇ ▇▇▇▇▇▇ Lovells US LLP ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. and ▇▇▇▇▇▇▇ Procter LLP may rely as to matters of fact on certificates of officers and directors of the Company, the MHC MHC, the Mid-Tier and the Bank and certificates of public officials, and ▇▇▇▇▇▇▇ Procter LLP may also rely on the opinion of ▇▇▇▇ ▇▇▇▇▇▇ Lovells US LLP.▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C.
(c) At the Closing Time referred to in Section 2, the Company, the MHC MHC, the Mid-Tier and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company or the Bank by the FRB, or any other regulatory authority other than those which the FRB or the Division permits to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC MHC, the Mid-Tier and the Bank, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC MHC, of the Mid-Tier and of the Bank and the Chief Financial Officer of the Company, of the MHC, of the Mid-Tier and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the MHC MHC, the Mid-Tier or the Bank from the latest date as of which the financial condition of the Company, the MHC MHC, the Mid-Tier or the Bank, as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, practice (iii) neither the Company nor the Bank shall have received from the FRB any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC MHC, the Mid-Tier or the Bank, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC MHC, the Mid-Tier and the Bank has complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission, and (vii) no order suspending the Subscription and Community Offering or the Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or, to their knowledge, or threatened by the FRB and no person has sought to obtain regulatory or judicial review of the action of the Division in approving the Plan in accordance with the Conversion Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Holding Company Application.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC MHC, of the Mid-Tier and of the Bank and the Chief Financial Officer of the Company, of the MHC MHC, of the Mid-Tier and of the Bank, dated as of the Closing Time, to the effect that (i) they have he or she has reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on their his or her knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on their his or her knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, fairly present the financial condition and results of operations of the MHC Bank and the subsidiaries Subsidiaries as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus; (iv) he or she is responsible for establishing and maintaining internal controls; (v) he or she has designed such internal controls to ensure that material information relating to the Company, the MHC, the Mid-Tier and the Bank is made known to them; (vi) he or she has evaluated the effectiveness of their internal controls; and (vii) he or she has disclosed to Wolf & Company, P.C. and the audit committee (A) all significant deficiencies in the design or operation of internal controls which could adversely affect the Company’s and the Bank’s ability to record, process, summarize, and report financial data, and have identified for the Company’s and the Bank’s auditors any material weaknesses in internal controls and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s and the Bank’s internal controls.
(f) At the time of the execution of this Agreement, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Wolf & Company, P.C., a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHCCompany, the Company Bank and the Bank Subsidiaries within the meaning of the Code of Ethics of the American Institute of Certified Public Accountants, the Securities Act and Act, the Securities Act Regulations and the Conversion Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Wolf & Company, P.C. set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC Company included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and Act, the Securities Act Regulations and the Conversion Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” and under “Recent Developments” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC MHC, the Mid-Tier and the Bank or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings of the MHC MHC, the Mid-Tier and the Bank, in each case as compared with the amounts shown in the consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from [ ][October 1, 2014 2013] to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCCompany, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the MHC Company, the MHC, the Mid-Tier and the Bank identified in such letter.
(g) At the Closing Time, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Wolf & Company, P.C. a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five days prior to the Closing Time.
(h) At the Closing Time, the Securities shall have been approved for trading on the Nasdaq Capital Market upon notice of issuance.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by Federal, Massachusetts Rhode Island or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, proceedings therefor initiated or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the FRBCommission, the NCCOB or the FRB and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of Brooks, Pierce, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ Lovells US LLP, & ▇▇▇▇▇▇▇ L.L.P. (“▇▇▇▇▇▇ ▇▇▇▇▇▇”) counsel for the Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on Agent as attached hereto as Exhibit A hereto.C.
(2) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇▇▇▇ Procter LLP▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP (“▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇”), counsel for the Agent, with respect as to such matters as the Agent may reasonably requirerequest.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇▇▇▇▇ Lovells US LLP ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇ Procter LLP ▇▇▇▇▇▇▇▇ shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included thereintherein or omitted therefrom, as to which counsel need make no statement), at the time the Registration Statement became effective or at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇▇▇ Lovells US LLP ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇ Procter LLP ▇▇▇▇▇▇▇▇ 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, and ▇▇▇▇▇▇▇▇▇▇ Procter LLP ▇▇▇▇▇▇▇▇ may also rely on the opinion of ▇▇▇▇▇▇ Lovells US LLP▇▇▇▇▇▇.
(c) At the Closing Time referred to in Section 22 hereof, the Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion NCCOB Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company Company, the MHC or the Bank by the NCCOB, the FRB, the FDIC or any other regulatory authority authority, other than those which the NCCOB, the FRB or the Division FDIC permits to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC and the Bank, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practicebusiness, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC, MHC and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the MHC or the Bank, as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither the Company Company, the MHC nor the Bank shall have received from the NCCOB, the FRB or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC or the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC and the Bank has have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission, and (vii) no order suspending the Subscription and Community Offering NCCOB’s approval of the Conversion Application or the Syndicated Community Offering transactions contemplated thereby or the authorization for final use FRB’s Approval of the Prospectus Holding Company Application or the transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to their knowledge, or threatened by the NCCOB, the FRB or the FDIC and no person has sought to obtain regulatory or judicial review of the action of the Division NCCOB, the FRB or the FDIC in approving or not objecting to the Plan in accordance with the applicable regulations, nor has any person sought to obtain regulatory or judicial review of the action of the NCCOB in approving the Conversion Application or of the FRB in approving the Holding Company Application, (viii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forth and (ix) the conditions set forth in this Section 5 have been satisfied.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer and President of the Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus fairly present the financial condition and results of operations of the MHC and the subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus.
(f) At the time As of the execution of this Agreementdate hereof, the Agent shall have received from ▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇ & Company, P.C., LLP a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHCCompany, the Company MHC and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act RegulationsRegulations and the regulations of the FRB, they are registered with the PCAOB, PCAOB and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇ & Company, P.C. LLP set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and Act, the Securities Act Regulations and the regulations of the FRB or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income for the three months ended March 31, 2014 and net income 2013 set forth under “Selected Consolidated Financial and Other Data” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC and the Bank or any decrease in consolidated total assets, total deposits, loans receivable, net, the allowance for loan losses, or total deposits or retained earnings equity of the MHC and the BankMHC, in each case as compared with the amounts shown in the March 31, 2014 consolidated statements of financial conditions condition included in the Registration Statement or, or (D) during the period from [ ]March 31, 2014 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, noninterest income before income tax expense or net income or any increases in the provision for loan losses or noninterest expense of the MHC, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the MHC and the Bank identified in such letter.
(g) At the Closing Time, the Agent shall have received from ▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇ & Company, P.C. LLP a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (fg) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(h) At the Closing Time, the Company, the MHC and the Bank shall have received all regulatory approvals required to consummate the Conversion and the Offerings and the Securities shall have been approved for trading quotation on the Nasdaq Capital Global Market upon notice of issuance.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, Massachusetts North Carolina, Georgia or New York authorities.
(l) The Securities shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Company, the MHC and the Bank.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC Company and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC Company and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC Company and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the FRBCommission, the Federal Reserve Board, the FDIC or the Commissioner and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of Ober, Kaler, G▇▇▇▇▇ Lovells US LLP& S▇▇▇▇▇▇, P.C., counsel for the Company, the MHC Company and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on Agent as attached hereto as Exhibit A hereto.B.
(2) The favorable opinion, dated as of the Closing Time, of Silver, F▇▇▇▇▇▇▇, Taff & T▇▇▇▇▇▇ Procter LLP, counsel for the Agent, with respect as to such matters as the Agent may shall reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Ober, Kaler, G▇▇▇▇▇ Lovells US LLP and & S▇▇▇▇▇▇, P.C. and Silver, F▇▇▇▇▇▇▇, Taff & T▇▇▇▇▇▇ Procter LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statementsstatements and schedules, notes to financial statements, stock valuation information and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statementsstatements and schedules, notes to financial statements, stock valuation information and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at Closing Time, or (if applicable) that the Closing General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, Ober, Kaler, G▇▇▇▇▇ Lovells US LLP and & S▇▇▇▇▇▇, P.C. and Silver, F▇▇▇▇▇▇▇, Taff & T▇▇▇▇▇▇ Procter LLP may rely as to matters of fact on certificates of officers and directors of the Company, the MHC Company and the Bank and certificates of public officials. Silver, and F▇▇▇▇▇▇▇, Taff & T▇▇▇▇▇▇ Procter LLP may also rely on the opinion of Ober, Kaler, G▇▇▇▇▇ Lovells US LLP.& S▇▇▇▇▇▇, P.C.
(c) At the Closing Time referred to in Section 22 hereof, the Company, the MHC Company and the Bank shall have completed complied in all material respects with the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations regulations of the FDIC and the Commissioner and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company or the Bank by the FRBFDIC, the Commissioner or any other regulatory authority other than those which the FRB FDIC or the Division Commissioner permits to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC and the Bank, considered as one enterpriseMaterial Adverse Effect, whether or not arising in the ordinary course of business consistent with past practicebusiness, and the Agent shall have received a certificate of the President and Chief Executive Officer and President of the Company, of the MHC Company and of the Bank and the Chief Financial Officer of the Company, of the MHC, Company and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse changeMaterial Adverse Effect, (ii) there shall have been no material transaction entered into by the Company, the MHC Company or the Bank from the latest date as of which the financial condition of the Company, the MHC Company or the Bank, as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither the Company nor the Bank shall have received from the FRB Federal Resesrve Board, the FDIC or the Commissioner any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied in all material respects (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC Company or the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC Company and the Bank has have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission, Commission and (vii) no order suspending the Subscription Federal Reserve Board’s and Community Offering the Commissioner’s approval or non-objection of the Holding Company Application or the Syndicated Community Offering FDIC’s or the authorization for final use Commissioner’s approval of the Prospectus Conversion Application, or the transactions contemplated thereby, has been issued and no proceedings for that purpose have been initiated or, to their knowledge, or threatened by the FRB and no person has sought to obtain regulatory or judicial review of the action of the Division FDIC or the Commissioner in approving the Plan in accordance or consistent with the regulations of the FDIC or the Commissioner, as applicable, nor has any person sought to obtain regulatory or judicial review of the action of the FRB Federal Reserve Board or the Commissioner in approving the Holding Company Application.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer and President of the Company, of the MHC Company and of the Bank and the Chief Financial Officer of the Company, of the MHC Company and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus fairly present the financial condition and results of operations of the MHC and the subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus.
(f) At the time As of the execution of this Agreementdate hereof, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇R▇▇▇▇▇ & Company, P.C., LLP a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHC, the Company and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act RegulationsRegulations and the regulations of the FDIC and the Commissioner, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇S▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇, ▇▇R▇▇▇▇▇ & Company, P.C. LLP set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC Bank included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and Act, the Securities Act Regulations and the regulations of the FDIC and the Commissioner or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” [or under “Recent Developments”] in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-long term or short-short term debt of the MHC and the Bank or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings stockholders’ equity of the MHC and the Bank, in each case as compared with the amounts shown in the December 31, 2013 consolidated statements of financial conditions balance sheets included in the Registration Statement or, (D) during the period from [ ]March 31, 2014 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCBank, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the MHC Company and the Bank identified in such letter.
(g) At the Closing Time, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇R▇▇▇▇▇ & Company, P.C. LLP a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(h) At the Closing Time, the Securities shall have been approved for trading listing on the Nasdaq Capital Stock Market upon notice of issuance, if an application for listing has been filed by the Company, or otherwise approved for quotation on the OTC Bulletin Board.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisalAppraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, Massachusetts Maryland or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, Statement shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, Prospectus shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the FRBCommission or the OTS, and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable written opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇ Lovells US ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, as to the matters set forth on Exhibit A hereto.:
(2) The favorable written opinion, dated as of the Closing Time, of ▇▇▇▇ ▇▇▇▇▇▇ Procter LLP▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., counsel for the Agent, with respect to such the matters as the Agent may reasonably requireset forth on Exhibit B hereto.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Procter & ▇▇▇▇▇▇▇ LLP and ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter LLP 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, and ▇▇▇▇▇▇▇ Procter LLP may also rely on the opinion of ▇▇▇▇▇ Lovells US LLP.
(c) At the Closing Time referred to in Section 2, the Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion Offerings in accordance with the Plan, the applicable Conversion OTS Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Offerings imposed upon the Company Company, the MHC or the Bank by the FRB, OTS or any other regulatory authority authority, other than those which the FRB or the Division OTS permits to be completed after the ConversionOfferings.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC MHC, the Bank and the BankSubsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC and of the Bank and the Chief Financial Officer chief financial or chief accounting officer of the Company, of the MHC, MHC and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the MHC or the Bank, as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, practice (iii) neither the Company Company, the MHC nor the Bank shall have received from the FRB OTS any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC or the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC and the Bank has have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission, and (vii) no order suspending the Subscription and Community Offering or the Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or, to their knowledge, or threatened by the FRB OTS and no person has sought to obtain regulatory or judicial review of the action of the Division OTS in approving the Plan in accordance with the OTS Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB OTS in approving the Holding Company ApplicationPlan.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer and President of the Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus fairly present the financial condition and results of operations of the MHC Company and the subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the General Disclosure PackageProspectus; (iv) they are responsible for establishing and maintaining internal controls; (v) they have designed such internal controls to ensure that material information relating to the Company, including the ProspectusMHC, the Bank and the Subsidiaries is made known to them; (vi) they have evaluated the effectiveness of their internal controls; and (vii) they have disclosed to Deloitte & Touche, LLP and the audit committee (A) all significant deficiencies in the design or operation of internal controls which could adversely affect the Company’s, the MHC’s and the Bank’s ability to record, process, summarize, and report financial data, and have identified for the Company’s, the MHC’s and the Bank’s auditors any material weaknesses in internal controls and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s, the MHC’s and the Bank’s internal controls.
(f) At the time of the execution of this Agreement, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Deloitte & Company, P.C., Touche LLP a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the Company, the MHC, the Company Bank and the Bank Subsidiaries within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the OTS Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Deloitte & Company, P.C. Touche LLP set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC Company included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and Act, the Securities Act Regulations and the OTS Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC and the Bank Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings net worth of the MHC and the BankCompany, in each case as compared with the amounts shown in the consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from [ ]December 31, 2014 2003 to a specified date not more than five (5) days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCCompany, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the MHC and the Bank identified in such letter.
(g) At the Closing Time, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Deloitte & Company, P.C. Touche LLP a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(h) At the Closing Time, the Securities Common Stock shall have been approved for trading quotation on the Nasdaq Capital National Market upon notice of issuance.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance to in the reasonable judgment of the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, Massachusetts New Jersey or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the Mid-Tier Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and the issuance of the Exchange Shares and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the Mid-Tier Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, threatened by the FRB, Commission or the FRB and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇ ▇▇ Lovells US LLP▇▇▇▇▇, PC, counsel for the Company, the Mid-Tier Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on as attached hereto as Exhibit A hereto.B.
(2) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇ ▇▇▇ Procter ▇▇▇▇, LLP, counsel for the Agent, with respect as to such matters as the Agent may reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇, PC and ▇▇▇▇▇ Procter ▇▇▇▇▇▇, LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective effective, as of the date of the Prospectus or at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇, PC and ▇▇▇▇▇ Procter ▇▇▇▇▇▇, LLP may rely as to matters of fact on certificates of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank and certificates of public officials, and . ▇▇▇▇▇ ▇▇▇▇▇▇▇ Procter , LLP may also rely on the opinion of ▇▇▇▇ ▇▇ Lovells US LLP▇▇▇▇▇, PC.
(c) At the Closing Time referred to in Section 22 hereof, the Company, the Mid-Tier Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion FRB Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company Company, the Mid-Tier Company, the MHC or the Bank by the FRB, or any other regulatory authority other than those which the FRB or the Division permits to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC and the Bank, considered as one enterpriseMaterial Adverse Effect, whether or not arising in the ordinary course of business consistent with past practicebusiness, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the Mid-Tier Company, the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHCMid-Tier Company, the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse changeMaterial Adverse Effect, (ii) there shall have been no material transaction entered into by the Company, the Mid-Tier Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the Mid-Tier Company, the MHC or the Bank, as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, practice (iii) neither the Company Company, the Mid-Tier Company, the MHC nor the Bank shall have received from the FRB FRB, the OCC or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the Mid-Tier Company, the MHC or the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the Mid-Tier Company, the MHC and the Bank has have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission, Commission and (vii) no order suspending the Subscription and Community Offering FRB’s approval of the Conversion Application, the Holding Company Application or the Syndicated Community Offering or the authorization for final use of the Prospectus transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to their knowledge, or threatened by the FRB and no person has sought to obtain regulatory or judicial review of the action of the Division FRB in approving the Plan in accordance with the FRB Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Conversion Application or the Holding Company Application.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of the Mid-Tier Company, of the MHC Company and of the Bank and the Chief Financial Officer of the Mid-Tier Company, of the MHC Company and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus fairly present the financial condition and results of operations of the MHC Mid-Tier Company and the subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus.
(f) At the time As of the execution of this Agreementdate hereof, the Agent shall have received from BDO USA, LLP and ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C., a letter LLP letters dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHCCompany, the Company Mid-Tier Company, the MHC and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the FRB Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and BDO USA, LLP and ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. LLP set forth in detail in such letterletters, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC Mid-Tier Company included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and Act, the Securities Act Regulations and the FRB Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” in the Registration Statement Prospectus and Prospectus the General Disclosure Package do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited consolidated financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC and the Bank Mid-Tier Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings net worth of the MHC and the BankMid-Tier Company, in each case as compared with the amounts shown in the December 31, 2014 consolidated statements of financial conditions condition included in the Registration Statement or, (D) during the period from [ ]December 31, 2014 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCMid-Tier Company, except in all instances for increases or decreases which the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus Package and which that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the Mid-Tier Company, the MHC and the Bank identified in such letter.
(g) The “lock-up” agreements, each substantially in the form of Exhibit C hereto, between the Agent and the persons set forth on Exhibit D hereto, relating to sales and certain other dispositions of shares of Common Stock, Mid-Tier Company Common Stock or certain other securities, shall be delivered to the Agent on or before the date hereof and shall be in full force and effect on the Closing Time.
(h) At the Closing Time, the Agent shall have received from BDO USA, LLP and ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. a letterLLP letters, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter letters furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(hi) At the Closing Time, all notices required to be filed to permit the Securities shall have been approved for trading Securities, the Foundation Shares and the Exchange Shares to be quoted on the Nasdaq Capital Global Select Market upon notice of issuanceissuance shall have been timely filed.
(ij) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(jk) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities Securities, the Foundation Shares and the Foundation Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities Securities, the Foundation Shares and the Foundation Exchange Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(kl) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the NYSE MKT, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either any of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, Massachusetts Maryland, New Jersey or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the Mid-Tier Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and the issuance of the Exchange Shares and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the Mid-Tier Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the FRB, Commission or the FRB and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇▇▇▇ Lovells US ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, the Mid-Tier Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on as attached hereto as Exhibit A hereto.C.
(2) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇▇ Procter Ronon ▇▇▇▇▇▇▇ & ▇▇▇▇▇, LLP, counsel for the Agent, with respect as to such matters as the Agent may reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇▇▇▇▇▇▇▇▇ Lovells US ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇ Procter Ronon ▇▇▇▇▇▇▇ & ▇▇▇▇▇, LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇▇▇▇▇▇▇ Lovells US ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇ Procter Ronon ▇▇▇▇▇▇▇ & ▇▇▇▇▇, LLP may rely as to matters of fact on certificates of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank and certificates of public officials, and . ▇▇▇▇▇▇▇▇ Procter Ronon ▇▇▇▇▇▇▇ & ▇▇▇▇▇, LLP may also rely on the opinion of ▇▇▇▇▇▇▇▇▇▇ Lovells US ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP.
(c) At the Closing Time referred to in Section 22 hereof, the Company, the Mid-Tier Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion FRB Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company Company, the Mid-Tier Company, the MHC or the Bank by the FRB, or any other regulatory authority other than those which the FRB or the Division Pennsylvania Banking Department permits to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC and the Bank, considered as one enterprise, Material Adverse Effect whether or not arising in the ordinary course of business consistent with past practicebusiness, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the Mid-Tier Company, the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHCMid-Tier Company, the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the Mid-Tier Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the Mid-Tier Company, the MHC or the Bank, as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, practice (iii) neither the Company Company, the Mid-Tier Company, the MHC nor the Bank shall have received from the FRB FRB, the Pennsylvania Banking Department or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the Mid-Tier Company, the MHC or the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the Mid-Tier Company, the MHC and the Bank has have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission, Commission and (vii) no order suspending the Subscription and Community Offering FRB’s approval of the Conversion Application, the Holding Company Application or the Syndicated Community Offering or the authorization for final use of the Prospectus transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to their knowledge, or threatened by the FRB and no person has sought to obtain regulatory or judicial review of the action of the Division FRB in approving the Plan in accordance with the FRB Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Conversion Application or the Holding Company Application and no person has sought to obtain regulatory or judicial review of the action of the Pennsylvania Department in approving the Pennsylvania Application.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of the Mid-Tier Company, of the Company, the MHC and of the Bank and the Chief Financial Officer of the Mid-Tier Company, of the Company, the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus fairly present the financial condition and results of operations of the MHC Mid-Tier Company and the subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus.
(f) At the time As of the execution of this Agreementdate hereof, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C., KPMG LLP a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHCCompany, the Company Mid-Tier Company, the MHC and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the FRB Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. KPMG LLP set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC Mid-Tier Company included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and Act, the Securities Act Regulations and the FRB Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” or under “Recent Developments” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited consolidated financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-long term or short-short term debt of the MHC and the Bank Mid-Tier Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings total stockholders’ equity of the MHC and the BankMid-Tier Company, in each case as compared with the amounts shown in the consolidated statements of financial conditions condition included in the Registration Statement or, (D) during the period from [ ]June 30, 2014 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCMid-Tier Company, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the Mid-Tier Company, the MHC and the Bank identified in such letter.
(g) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between the Agent and the persons set forth on Exhibit E hereto, relating to sales and certain other dispositions of shares of Common Stock, Mid-Tier Company Common Stock or certain other securities, shall be delivered to the Agent on or before the date hereof and shall be in full force and effect on the Closing Time.
(h) At the Closing Time, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. KPMG LLP a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(hi) At the Closing Time, all notices required to be filed to permit the Securities shall have been approved for trading and the Exchange Shares to be quoted on the Nasdaq Capital Global Select Market upon notice of issuanceissuance shall have been timely filed.
(ij) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(jk) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Exchange Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(kl) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the Nasdaq, the New York Stock Exchange or the Nasdaq Stock Market NYSE MKT shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either any of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, Massachusetts Pennsylvania or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, Statement shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, Prospectus shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the FRBCommission, the NCCOB or the FRB and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of Brooks, Pierce, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ Lovells US LLP, & ▇▇▇▇▇▇▇ L.L.P. (“▇▇▇▇▇▇ ▇▇▇▇▇▇”) counsel for the Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on Exhibit A hereto.Agent as attached hereto as Appendix A.
(2) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇▇▇▇ Procter LLP▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP (“▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇”), counsel for the Agent, with respect to addressing such matters as the Agent may reasonably requirerequest.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇▇▇▇▇ Lovells US LLP ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇ Procter LLP ▇▇▇▇▇▇▇▇ shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statementsstatements and schedules, notes to financial statements, stock valuation information and schedules and other financial or statistical data included thereintherein or omitted therefrom, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statementsstatements and schedules, notes to financial statements, stock valuation information and schedules and other financial or statistical data included thereintherein or omitted therefrom, as to which counsel need make no statement), at the time the Registration Statement became effective or at the Closing Time, or that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. To the extent not inconsistent with the assumptions, qualifications and limitations which shall be set forth in the opinion, the opinions of ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ may be governed by, and shall be interpreted in accordance with, the Legal Opinion Accord (the “Accord”) of the American Bar Association Section of Business Law (1991). The clause “to counsel’s knowledge,” “to such counsel’s actual knowledge” or similar terms used in said opinion shall have the meaning set forth in the Accord for the term “Actual Knowledge.” In giving their opinions, ▇▇▇▇▇▇ Lovells US LLP ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇ Procter LLP ▇▇▇▇▇▇▇▇ 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, and ▇▇▇▇▇▇▇▇▇▇ Procter LLP ▇▇▇▇▇▇▇▇ may also rely on the opinion of ▇▇▇▇▇▇ Lovells US LLP▇▇▇▇▇▇.
(c) At the Closing Time referred to in Section 2Time, the Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion NCCOB Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company Company, the MHC or the Bank by the NCCOB, the FRB, the FDIC or any other regulatory authority authority, other than those which the NCCOB, the FRB or the Division permits FDIC permit to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC and the Bank, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC, and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the MHC or the Bank, as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither the Company nor the Bank shall have received from the FRB any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC or the Bank, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC and the Bank has complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission, and (vii) no order suspending the Subscription and Community Offering or the Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or, to their knowledge, threatened by the FRB and no person has sought to obtain regulatory or judicial review of the action of the Division in approving the Plan nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Holding Company ApplicationMaterial Adverse Effect.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC and of the Bank, dated as of Closing Time, to the effect that (i) there has been no Material Adverse Effect since the date hereof or since the respective dates as of which information is given in the Registration Statement and the Prospectus, (ii) there shall have been no material transaction entered into by the Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the MHC or the Bank has been set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) none of the Company, the MHC or the Bank shall have received from the NCCOB, the FRB or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which would have a Material Adverse Effect, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC and the Bank have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission or any other governmental body, (vii) no order suspending any material aspect of the Conversion or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or threatened by the NCCOB, the FRB or the FDIC and no person has sought to obtain regulatory or judicial review of the action of the NCCOB, the FRB or the FDIC in approving or not objecting to the Plan in accordance with the applicable regulations, nor has any person sought to obtain regulatory or judicial review of the action of the NCCOB in approving the Conversion Application or of the FRB in approving the Holding Company Application, (viii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forth and (ix) the conditions set forth in this Section 5 have been satisfied.
(f) At the Closing Time, the Agent shall have received a certificate of the Chief Executive Officer and President of the Company, the MHC and the Bank and the Chief Financial Officer of the Company, the MHC and the Bank, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and Statement, the Prospectus, the General Disclosure Package, including any Issuer-Represented Free-Writing Prospectus and the ProspectusMembers’ Proxy Statement; (ii) based on each of their knowledge, the Registration Statement and Statement, the Prospectus, the General Disclosure Package, including any Issuer-Represented Free-Writing Prospectus and the ProspectusMembers’ Proxy Statement, do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and Statement, the Prospectus, the General Disclosure Package, including any Issuer-Represented Free-Writing Prospectus and the ProspectusMembers’ Proxy Statement, fairly present the financial condition and results of operations of the MHC and the subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the General Disclosure PackageProspectus; (iv) they are responsible for establishing and maintaining internal controls; (v) they have designed such internal controls to ensure that material information relating to the Company, including the ProspectusMHC and the Bank is made known to them; (vi) they have evaluated the effectiveness of their internal controls; and (vii) they have disclosed to ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP and the audit committee (A) all significant deficiencies in the design or operation of internal controls which could adversely affect the Company’s, the MHC’s and the Bank’s ability to record, process, summarize, and report financial data, and have identified for the Company’s, the MHC’s and the Bank’s auditors any material weaknesses in internal controls and (B) and fraud, whether or not material, that involves management or other employees who have a significant roles in the Company’s, the MHC’s and the Bank’s internal controls.
(fg) At the time As of the execution of this Agreementdate hereof, the Agent shall have received from ▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇ & Company, P.C., LLP a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHCCompany, the Company MHC and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations, they are registered with the PCAOB, PCAOB and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇ & Company, P.C. LLP set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC and the Bank or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings net worth of the MHC and the BankMHC, in each case as compared with the amounts shown in the consolidated statements of financial conditions balance sheet included in the Registration Statement or, or (DA) during the period from [ ]June 30, 2014 2011 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest and dividend income, net interest income, net interest income after provision for loan losses, losses before provision for income before income tax expense taxes or net income of the MHC, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the MHC and the Bank identified in such letter.
(gh) At the Closing Time, the Agent shall have received from ▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇ & Company, P.C. LLP a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (fg) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(hi) At the Closing Time, the Company, the MHC and the Bank shall have received all regulatory approvals required to consummate the Conversion and the Offerings and the Securities shall have been approved for trading quotation on the Nasdaq Capital Global Market upon notice of issuance.
(ij) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(jk) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(kl) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, Massachusetts North Carolina, Georgia or New York authorities.
(m) The Securities shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Company, the MHC and the Bank.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the Mid-Tier Company, the MHC, the Bank and the Agent Agents agree that the issuance and the sale of Securities and all obligations of the Agent Agents hereunder are subject to the accuracy of the representations and warranties of the Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the Mid-Tier Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, Statement shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, Prospectus shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the FRB, Commission or the OTS and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent Agents shall have received:
(1) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇▇▇▇ Lovells US ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, the Mid-Tier Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on Agents as attached hereto as Exhibit A hereto.A.
(2) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇ Procter Lovells US LLP, counsel for the AgentAgents, with respect to addressing such matters as the Agent Agents may reasonably requirerequest.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇▇▇▇▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇▇ Procter & ▇▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇ Lovells US LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at the Closing Time, or that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter LLP 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, and ▇▇▇▇▇▇▇ Procter LLP may also rely on the opinion of ▇▇▇▇▇ Lovells US LLP.
(c) At the Closing Time referred to in Section 2Time, the Company, the Mid-Tier Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion OTS Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company Company, the Mid-Tier Company, the MHC or the Bank by the FRB, OTS or any other regulatory authority authority, other than those which the FRB or the Division OTS permits to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in Material Adverse Effect.
(e) At the financial condition, results of operations, business affairs or prospects of the CompanyClosing Time, the MHC and the Bank, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent Agents shall have received a certificate of the President and Chief Executive Officer of the Company, of the Mid-Tier Company, of the MHC and of the Bank and the Chief Financial Officer chief financial or chief accounting officer of the Company, of the MHCMid-Tier Company, of the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse changeMaterial Adverse Effect since the date hereof or since the respective dates as of which information is given in the Registration Statement and the Prospectus, (ii) there shall have been no material transaction entered into by the Company, the Mid-Tier Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the Mid-Tier Company, the MHC or the Bank, as Bank has been set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither none of the Company nor Company, the Mid-Tier Company, the MHC or the Bank shall have received from the FRB OTS any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the AgentAgents) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC or the Bankhave a Material Adverse Effect, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the Mid-Tier Company, the MHC and the Bank has have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the CommissionCommission or any other governmental body, and (vii) no order suspending any material aspect of the Subscription and Community Offering Conversion or the Syndicated Community Offering contribution to the Foundation or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or, to their knowledge, or threatened by the FRB OTS and no person has sought to obtain regulatory or judicial review of the action of the Division OTS in approving the Plan in accordance with the OTS Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB OTS in approving the Holding Company ApplicationConversion Application and (viii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forth and (ix) the conditions set forth in this Section 5 have been satisfied.
(ef) At the Closing Time, the Agent Agents shall have received a certificate of the President and Chief Executive Officer and President of the Mid-Tier Company, of the MHC Company and of the Bank and the Chief Financial Officer of the Mid-Tier Company, of the MHC Company and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement Statement, the Prospectus, any Issuer-Represented Free-Writing Prospectus and the General Disclosure Package, including the ProspectusMembers’ Proxy Statement; (ii) based on each of their knowledge, the Registration Statement Statement, the Prospectus, any Issuer-Represented Free-Writing Prospectus and the General Disclosure Package, including the ProspectusMembers’ Proxy Statement, do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement Statement, the Prospectus, any Issuer-Represented Free-Writing Prospectus and the General Disclosure Package, including the ProspectusMembers’ Proxy Statement, fairly present the financial condition and results of operations of the MHC Mid-Tier Company and the subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus.
(fg) At the time As of the execution of this Agreementdate hereof, the Agent Agents shall have received from ▇▇▇McGladrey & ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C., LLP a letter dated such date, in form and substance satisfactory to the AgentAgents, to the effect that: (i) they are independent public accountants with respect to the MHCCompany, the Company Mid-Tier Company, the MHC and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the OTS Regulations, they are registered with the PCAOB, PCAOB and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent Agents and ▇▇▇McGladrey & ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. LLP set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and Act, the Securities Act Regulations and the OTS Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC and the Bank or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings net worth of the MHC and the BankMHC, in each case as compared with the amounts shown in the September 30, 2010 consolidated statements of financial conditions included in the Registration Statement or, or (DB) during the period from [ ]September 30, 2014 2010 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest and dividend income, net interest income, net interest income after provision for loan losses, losses before provision for income before income tax expense taxes or net income of the MHC, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which that are specified by the AgentAgents, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the Mid-Tier Company, the MHC and the Bank identified in such letter.
(gh) At the Closing Time, the Agent Agents shall have received from ▇▇▇McGladrey & ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. LLP a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (fg) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(hi) At the Closing Time, the Securities shall have been approved for trading quotation on the Nasdaq Capital Global Market upon notice of issuance.
(ij) At the Closing Time, the Agent Agents shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(jk) At the Closing Time, counsel for the Agent Agents shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent Agents and counsel for the AgentAgents.
(kl) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the AgentAgents, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, Massachusetts Virginia or New York authorities.
(m) The Securities shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agents shall have reasonably requested and as agreed to by the Company, the MHC, the Mid-Tier Company and the Bank.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHC, MHC and the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC and the Bank of and their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, Statement shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, Prospectus shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the FRB, OTS and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ Lovells US LLP& ▇▇▇▇▇▇▇▇, counsel for the Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on Exhibit A heretoto the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the United States of America.
(2ii) The favorable opinionCompany has full corporate power and authority to own, dated lease and operate its properties and to conduct its business as of described in the Closing Time, of ▇▇▇▇▇▇▇ Procter LLP, counsel for the Agent, with respect Registration Statement and Prospectus and to such matters as the Agent may reasonably requireenter into and perform its obligations under this Agreement.
(3iii) In addition The Company is duly qualified as a foreign corporation to giving their opinions transact business and is in good standing in the State of New Jersey and in each other jurisdiction in which such qualification is required whether by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as reason of the Applicable Timeownership or leasing of property or the conduct of business, contained an untrue statement of except where the failure to so qualify would not have a material fact adverse effect upon the financial condition, results of operations or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter LLP may rely as to matters of fact on certificates of officers and directors business affairs of the Company, the MHC and the Bank and certificates of public officialstheir subsidiaries, and ▇▇▇▇▇▇▇ Procter LLP may also rely on the opinion of ▇▇▇▇▇ Lovells US LLPconsidered as one enterprise.
(civ) At Upon consummation of the Conversion, and the issuance of the Foundation Shares to the Foundation immediately upon completion thereof, the authorized, issued and outstanding capital stock of the Company will be as set forth in the Prospectus under "Capitalization" and, except for shares issued upon formation of the Company, no shares of Common Stock have been or will be issued and outstanding prior to the Closing Time.
(v) The Securities and the Foundation Shares have been duly and validly authorized for issuance and sale and, when issued and delivered by the Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, or contributed by the Company pursuant to the Plan in the case of the Foundation Shares, will be duly and validly issued and fully paid and non-assessable.
(vi) The issuance of the Securities and the Foundation Shares is not subject to preemptive or other similar rights arising by operation of law or, to the best of their knowledge and information, otherwise.
(vii) The Bank has been at all times since 1995 and prior to the Closing Time referred duly organized, and is validly existing and in good standing under the laws of the United States of America as a federally chartered savings bank of mutual form, and, at Closing Time, has become duly organized, validly existing and in good standing under the laws of the United States of America as a federally chartered savings bank of stock form, in both instances with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in Section 2the Registration Statement and the Prospectus; and the Bank is duly qualified as a foreign corporation in each jurisdiction in which the failure to so qualify would have a material adverse effect upon the financial condition, results of operations or business affairs of the Bank.
(viii) The Bank is a member in good standing of the Federal Home Loan Bank of New York and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits. Upon consummation of the Conversion, the rights of the members of the Bank in its mutual form will be transferred to the MHC in accordance with the Plan and the MHC Regulations.
(ix) Each direct and indirect subsidiary of the Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which the failure to so qualify would have a material adverse effect upon the financial condition, results of operations or business of the Company, the MHC and the Bank shall have completed and their subsidiaries, taken as a whole; the activities of each such subsidiary are permitted to subsidiaries of a savings association holding company and of a federally chartered savings bank by the rules, regulations, resolutions and practices of the OTS; all of the issued and outstanding capital stock of each such subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and is owned by the Bank, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity.
(x) The Foundation has been duly incorporated and is validly existing as a non-stock corporation in all material respects good standing under the conditions precedent laws of the State of Delaware with corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Conversion Prospectus; the Foundation is not a savings and loan holding company within the meaning of 12 C.F.R. Section 574.2(q) as a result of the issuance of shares of Common Stock to it in accordance with the Plan, terms of the applicable Conversion Regulations Plan and all other applicable laws, regulations, decisions in the amounts as described in the Prospectus; no approvals are required to establish the Foundation and orders, including all terms, conditions, requirements and provisions precedent to contribute the Conversion imposed upon shares of Common Stock thereto as described in the Company or the Bank by the FRB, or any other regulatory authority Prospectus other than those which set forth in any written notice or order of approval or non-objection of the FRB Conversion, the Conversion Application or the Division permits Holding Company Application, copies of which were provided to be completed after the ConversionAgent prior to the Closing Time.
(dxi) At Upon consummation of the Closing TimeConversion, there shall not have been, since all of the date hereof or since issued and outstanding capital stock of the respective dates Bank when issued and delivered pursuant to the Plan against payment of consideration calculated as of which information is given set forth in the Registration Statement Plan and set forth in the Prospectus, will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity.
(xii) The OTS has duly approved the Holding Company Application and the General Disclosure PackageMHC Application and no action is pending, or to the best of such counsel's knowledge, threatened respecting the Holding Company Application or the MHC Application or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the MHC Application comply with the applicable requirements of the OTS, includes all documents required to be filed as exhibits thereto, and is, to the best of such counsel's knowledge and information, truthful, accurate and complete; and the Company is duly authorized to become a savings association holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank to be issued pursuant to the Plan.
(xiii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, including the Prospectusestablishment of the Foundation and the contribution thereto of the Foundation Shares, any material adverse change in (A) have been duly and validly authorized by all necessary action on the financial condition, results part of operations, business affairs or prospects each of the Company, the MHC and the Bank, considered as one enterpriseand this Agreement constitutes the legal, whether or not arising in the ordinary course valid and binding agreement of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC, and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the MHC or the Bank, as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither the Company nor the Bank shall have received from the FRB any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC or the Bank, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC and the Bank has complied Bank, enforceable in accordance with all agreements its terms, except as rights to indemnity and satisfied all conditions on their part to contribution hereunder may be performed limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or satisfied at or prior to similar laws and the Closing Time, availability of equitable remedies); (viB) no stop order suspending the effectiveness will not result in any violation of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission, and (vii) no order suspending the Subscription and Community Offering or the Syndicated Community Offering or the authorization for final use provisions of the Prospectus has been issued and no proceedings for that purpose have been initiated or, to their knowledge, threatened by the FRB and no person has sought to obtain regulatory charter or judicial review of the action of the Division in approving the Plan nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Holding Company Application.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer bylaws of the Company, of the MHC and of the Bank or any of its subsidiaries; and, (C) will not conflict with or constitute a breach of, or default under, and no event has occurred which, with notice or lapse of time or both, would constitute a default under, or result in the Chief Financial Officer creation or imposition of any lien, charge or encumbrance, that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business affairs of the Company, of the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, fairly present the financial condition and results of operations of the MHC and the Bank and their subsidiaries considered as of and for the dates and periods covered by the Registration Statement and the General Disclosure Packageone enterprise, including the Prospectus.
(f) At the time upon any property or assets of the execution of this Agreement, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C., a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHC, the Company and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public Accountants, the Securities Act and the Securities Act Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC and the Bank or their subsidiaries pursuant to any decrease in consolidated total assetscontract, the allowance for indenture, mortgage, loan lossesagreement, total deposits note, lease or retained earnings of the MHC and the Bank, in each case as compared with the amounts shown in the consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from [ ], 2014 other instrument to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHC, except in all instances for increases or decreases which the Registration Statement and the General Disclosure PackageCompany, including the Prospectus, disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the MHC and the Bank identified in such letter.
(g) At the Closing Time, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. or their subsidiaries is a letter, dated as party or by which any of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall them may be a date not more than five days prior to the Closing Time.
(h) At the Closing Time, the Securities shall have been approved for trading on the Nasdaq Capital Market upon notice of issuance.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedingsbound, or in order to evidence the accuracy of which any of the representations property or warranties, or the fulfillment of any assets of the conditionsCompany, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities MHC and the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the AgentBank or their subsidiaries is subject.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by Federal, Massachusetts or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHC, the Bank ▇▇▇▇▇▇ Mutual and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC Company and the Bank ▇▇▇▇▇▇ Mutual herein contained as of the date hereof and the Closing Time, to the accuracy in all material respects of the statements of officers and directors of the Company, the MHC Company and the Bank ▇▇▇▇▇▇ Mutual made pursuant to the provisions hereof, to the performance by the Company, the MHC Company and the Bank ▇▇▇▇▇▇ Mutual of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, Statement shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, Conversion shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the FRBDepartment, and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇ Lovells US LLP& ▇▇▇, counsel for the Company, the MHC Company and the Bank▇▇▇▇▇▇ Mutual, in form and substance satisfactory to counsel for the Agent, to the effect that:
(i) The Company has been incorporated and is validly existing as a corporation in good standing under the laws of the Commonwealth of Pennsylvania with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and to enter into and perform its obligations under this Agreement; and to the best of such counsel's knowledge the Company is not transacting business in any other jurisdiction in which qualification as a foreign corporation is required to transact business, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the Company and the ▇▇▇▇▇▇ Companies, considered as one enterprise.
(ii) An opinion to the same general effect as subsection 5(b)(1)(i) in respect of each of the ▇▇▇▇▇▇ Companies.
(iii) ▇▇▇▇▇▇ Mutual has all requisite power and authority to enter into and perform its obligations under the Agreement and to carry on an insurance business pursuant to and to the extent of the certificates of authority issued under the laws of the Commonwealth of Pennsylvania and the State of New Jersey; MIC and FIC have all requisite power and authority to carry on an insurance business pursuant to and to the extent of the certificate of authority issued under the laws of the State of New Jersey and the Commonwealth of Pennsylvania, respectively; the Company and each of the ▇▇▇▇▇▇ Companies has obtained all licenses, permits and other governmental authorizations currently required for the conduct of their respective businesses, except where the failure to obtain any such license, permit or authorization would not have a material adverse effect upon the financial condition, results of operations or business affairs of the Company and the ▇▇▇▇▇▇ Companies, considered as one enterprise.
(iv) The Securities have been duly and validly authorized for issuance and sale and, when issued and delivered by the Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be duly and validly issued and fully paid and non-assessable; and all corporate actions required to be taken for the authorization, issuance and sale of the Securities have been validly and sufficiently taken.
(v) The issuance of the Securities is not subject to preemptive or other similar rights arising by operation of law or under the articles of incorporation or bylaws of the Company or ▇▇▇▇▇▇ Mutual.
(vi) Upon consummation of the Conversion, the authorized, issued and outstanding capital stock of the Company will be within the range set forth in the Prospectus under "Capitalization" and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Time.
(vii) All of the issued and outstanding capital stock of each of QHC and MIC has been duly authorized and validly issued and, to such counsel's best knowledge, is fully paid and non-assessable and is owned by ▇▇▇▇▇▇ Mutual, directly or through subsidiaries, to such counsel's knowledge free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, except such as would not result in a material adverse effect on Exhibit A heretothe financial condition or results of operations of ▇▇▇▇▇▇ Mutual and its subsidiaries, taken as a whole.
(viii) Upon consummation of the Conversion, all of the issued and outstanding capital stock of ▇▇▇▇▇▇ Mutual when issued and delivered pursuant to the Plan against payment of consideration as set forth in the Plan and set forth in the Prospectus, will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company, to the best of such counsel's knowledge free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity.
(ix) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, including without limitation the Conversion, have been duly and validly authorized by all necessary corporate action on the part of each of the Company and ▇▇▇▇▇▇ Mutual, and this Agreement constitutes the legal, valid and binding agreement of each of the Company and ▇▇▇▇▇▇ Mutual, enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws and the availability of equitable remedies); the execution and delivery of this Agreement, the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein, including without limitation the Conversion, will not result in any violation of the provisions of the charter or by-laws of the Company or any of the ▇▇▇▇▇▇ Companies; and, to the best of such counsel's knowledge, the execution and delivery of this Agreement, the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein, including without limitation the Conversion, will not constitute a breach of, or default under, and no event has occurred which, with notice or lapse of time or both, would constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance, that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business affairs of the Company and the ▇▇▇▇▇▇ Companies considered as one enterprise, upon any property or assets of the Company or any of the ▇▇▇▇▇▇ Companies pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument described in or filed as an exhibit to the Registration Statement.
(x) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act or, to the best of such counsel's knowledge, proceedings therefor initiated or threatened by the Commission. The Department confirmed in writing on _________, 2003 that it has no further comments on the Prospectus, and the Department has not amended or rescinded that confirmation since that date.
(xi) Subject to the satisfaction of any conditions set forth in any approvals or orders received from the Department or the New Jersey Department of Banking and Insurance required to be performed after the date of the opinion, 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, the issuance of the Securities and the consummation of the Conversion, except as may be required under the securities or Blue Sky laws of various jurisdictions as to which no opinion need be rendered.
(xii) At the time the Registration Statement became effective, the Registration Statement (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act and the Securities Act Regulations and the Conversion Act.
(xiii) The Common Stock conforms to the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xiv) To the best of such counsel's knowledge and without performing any docket search or similar search of judicial or administrative records (i) except as described in the Prospectus under the section "Risk Factors--New Jersey 'retaliatory tax' laws could possibly have an adverse impact on our results of operations," there are no legal or governmental proceedings pending or threatened against or affecting the Company or any of the ▇▇▇▇▇▇ Companies which are required, individually or in the aggregate, to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein, and (ii) all pending legal or governmental proceedings to which the Company or any of the ▇▇▇▇▇▇ Companies is a party or to which any of their property is subject which are not described in the Registration Statement, including ordinary routine litigation incidental to the business, are considered, in the aggregate, not material.
(xv) The information in the Prospectus under "Business--Regulation," "The Conversion--Effect of Conversion on Policyholders," "Risk Factors -- New Jersey 'retaliatory tax' laws could possibly have an adverse impact on our results of operations," "The Conversion--Tax Effects Generally," "The Conversion -- Tax Consequences of Subscription Rights," "Certain Restrictions on Acquisition of the Holding Company" and "Description of the Capital Stock," to the extent that it constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by them and is complete and accurate in all material respects.
(xvi) To the best of such counsel's knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Registration Statement or to be filed as exhibits thereto other than those described or referred to therein or filed as exhibits thereto, and the descriptions thereof or references thereto are correct in all material respects.
(xvii) The Conversion Application complies in all material respects with the applicable requirements of the Conversion Act, includes all documents required to be filed as exhibits thereto, and is, to the best of such counsel's knowledge and information, truthful, accurate and complete in all material respects. The Plan has been duly authorized by all necessary corporate actions, and all necessary regulatory consents thereto and regulatory approvals thereof have been obtained and the Conversion has been consummated; ▇▇▇▇▇▇ Mutual's charter has been amended to authorize the issuance of capital stock; to the best of such counsel's knowledge, the Company and ▇▇▇▇▇▇ Mutual have conducted the Conversion in all material respects in accordance with applicable requirements of the Conversion Act, the Plan and all other applicable regulations, decisions and orders of the Department, including all material applicable terms, conditions, requirements and conditions precedent to the Conversion imposed upon the Company or ▇▇▇▇▇▇ Mutual by the Department, except for those required to be completed after the date of the opinion, and, to the best of such counsel's knowledge, no order has been issued by the Department to suspend the Conversion and no action for such purpose has been instituted or threatened by the Department; and, to the best of such counsel's knowledge, no person has sought to obtain review of the final action of the Department in approving the Plan.
(xviii) Neither the Company nor any of the ▇▇▇▇▇▇ Companies is in violation of its articles of incorporation or, to the best of such counsel's knowledge, in default (nor has any event occurred which, with notice or lapse of time or both, would constitute a default) in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument described in or filed as an exhibit to the Registration Statement.
(xix) The Company is not and upon completion of the Conversion and Offering will not be required to be registered as an investment company under the Investment Company Act of 1940.
(2) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇ Procter LLPLord, Bissell & Brook, counsel for the Agent, with respect to such certain of the matters set forth in Sections 5(b)(1)(i), (iv), (v), (vi) and (xii) as the Agent may reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇▇▇▇▇▇ Lovells US LLP & ▇▇▇ and ▇Lord, Bissell & Brook shall each additionally state to the effect that during the preparation of the Registration Statement and the Prospectus, such counsel participated in conferences with certain officers and other representatives of the independent public accountants for the Company and the ▇▇▇▇▇▇ Procter LLP shall each additionally state that Companies and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and, although such counsel is not passing upon the accuracy of the statements contained in the Registration Statement and Prospectus (except as otherwise provided in subsections (b)(1) and (b)(2)), on the basis of the foregoing and without independent verification (relying as to factual matters on certificates and other factual representations provided by officers of the Company and the ▇▇▇▇▇▇ Companies), nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter LLP & ▇▇▇ and Lord, Bissell & Brook may rely as to matters of fact fact, to the extent such counsel deems proper, on certificates of officers and directors of the Company, the MHC Company and the Bank ▇▇▇▇▇▇ Mutual and certificates of public officials, provided that copies of any such certificates are delivered to the Agent together with the opinion to be rendered by such counsel, and ▇▇▇▇▇▇▇ Procter LLP Lord, Bissell & Brook may also rely on the opinion of ▇▇▇▇▇▇▇ Lovells US LLP& ▇▇▇ regarding matters of Pennsylvania law. Further, the opinion of ▇▇▇▇▇▇▇ & ▇▇▇ may be limited to matters governed by the laws of the Commonwealth of Pennsylvania and federal law.
(c) At the Closing Time referred to in Section 2, the Company, Plan shall have been approved by the MHC policyholders of ▇▇▇▇▇▇ Mutual and the Bank ▇▇▇▇▇▇ Mutual shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations Act and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company or the Bank by the FRB, or any other regulatory authority other than those which the FRB or the Division permits to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC and the Bank, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC, and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the MHC or the Bank, as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither the Company nor the Bank shall have received from the FRB any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC or the Bank, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC and the Bank has complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission, and (vii) no order suspending the Subscription and Community Offering or the Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or, to their knowledge, threatened by the FRB and no person has sought to obtain regulatory or judicial review of the action of the Division in approving the Plan nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Holding Company Application.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, fairly present the financial condition and results of operations of the MHC and the subsidiaries as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus.
(f) At the time of the execution of this Agreement, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C., a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHC, the Company and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public Accountants, the Securities Act and the Securities Act Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC and the Bank or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings of the MHC and the Bank, in each case as compared with the amounts shown in the consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from [ ], 2014 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHC, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the MHC and the Bank identified in such letter.
(g) At the Closing Time, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five days prior to the Closing Time.
(h) At the Closing Time, the Securities shall have been approved for trading on the Nasdaq Capital Market upon notice of issuance.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by Federal, Massachusetts or New York authorities.upon
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHCBank, the Bank Mineola Community MHC and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the Bank and Mineola Community MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC and Mineola Community Financial, the Bank and Mineola Community MHC made pursuant to the provisions hereof, to the performance by the Company, the MHC and Mineola Community Financial, the Bank and Mineola Community MHC of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-post- effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, threatened by the FRB, Commission or the FRB and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇ ▇▇ Lovells US LLP▇▇▇▇▇, PC, counsel for the Company, Mineola Community Financial, the MHC Bank and the BankMineola Community MHC, in form and substance satisfactory to counsel for the Agent, set forth on as attached hereto as Exhibit A hereto.A.
(2) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇ Procter LLP, counsel for the Agent, with respect as to such matters as the Agent may reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇▇▇ ▇▇ Lovells US LLP ▇▇▇▇▇, PC and ▇▇▇▇▇▇▇ Procter LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial financial, pro forma, appraisal or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial financial, pro forma, appraisal or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective effective, as of the date of the Prospectus or at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇ ▇▇ Lovells US LLP ▇▇▇▇▇, PC and ▇▇▇▇▇▇▇ Procter LLP may rely as to matters of fact on certificates of officers and directors of the Company, the MHC Company and the Bank and certificates of public officials, and . ▇▇▇▇▇▇▇ Procter LLP may also rely on the opinion of ▇▇▇▇ ▇▇ Lovells US LLP▇▇▇▇▇, PC.
(c) At the Closing Time referred to in Section 22 hereof, the Company, the MHC and Mineola Community Financial, the Bank and Mineola Community MHC shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion FRB Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company or Company, Mineola Community Financial, the Bank or Mineola Community MHC by the FRB, FRB or any other regulatory authority other than those which the FRB or the Division permits any such other regulatory authority permit to be completed after the consummation of the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC and the Bank, considered as one enterpriseMaterial Adverse Effect, whether or not arising in the ordinary course of business consistent with past practicebusiness, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC and of Mineola Community Financial, the Bank and Mineola Community MHC and the Chief Financial Officer of the Company, of Mineola Community Financial, the Bank and Mineola Community MHC, and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse changeMaterial Adverse Effect, (ii) there shall have been no material transaction entered into by the Company, the MHC or Mineola Community Financial, the Bank or Mineola Community MHC from the latest date as of which the financial condition of the Company, the MHC Mineola Community Financial or the Bank, as set forth in the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither none of the Company nor Company, Mineola Community Financial, the Bank or Mineola Community MHC shall have received from the FRB FRB, the TDSML or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which would materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, Mineola Community Financial the MHC Bank or the BankMineola Community MHC, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC and Mineola Community Financial, the Bank has and Mineola Community MHC have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company, Mineola Community Financial, the Bank or Mineola Community MHC, threatened by the Commission, and (vii) no order suspending the Subscription FRB’s approval of the Holding Company Application and Community Offering the Conversion Application or the Syndicated Community Offering or the authorization for final use of the Prospectus transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to their knowledgethe knowledge of the Company, Mineola Community Financial, the Bank or Mineola Community MHC, threatened by the FRB and no person has sought to obtain regulatory or judicial review of the action of the Division FRB in approving the Plan in accordance with the FRB Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Conversion Application or the Holding Company Application, and (viii) no order suspending the Subscription and Community Offering or the Syndicated Offering or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the FRB.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC and of Mineola Community Financial, the Bank and Mineola Community MHC and the Chief Financial Officer of the Company, of the MHC Bank and of the BankMineola Community MHC, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the consolidated financial statements and other financial information included in the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package fairly present the financial condition and results of operations of the MHC Mineola Community MHC, Mineola Community Financial and the subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus.
(f) At the time As of the execution of this Agreementdate hereof, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C., BKD a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHCCompany, Mineola Community Financial, the Company Bank and the Bank Mineola Community MHC within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the FRB Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. BKD set forth in detail in such letter, nothing has come to their attention which causes them to believe that that, except as set forth in such letter, (A) the unaudited consolidated financial statements and supporting schedules of the MHC included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” or under “Recent Developments” in the Registration Statement Prospectus and Prospectus the General Disclosure Package do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited consolidated financial statements included in the Registration Statement, the Prospectus and the General Disclosure Package, (CB) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-long- term or short-term debt of the Mineola Community MHC and the Bank or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings stockholders’ equity of the MHC and the BankMineola Community MHC, in each case as compared with the amounts shown in the consolidated December 31, 2020 audited statements of financial conditions included in the Registration Statement condition or, (DC) during the period from [ ]December 31, 2014 2020 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of Mineola Community MHC or increases in interest expense or the MHCprovision for loan losses, except in all instances for increases or decreases which the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement Statement, Prospectus and the General Disclosure Package, including the Prospectus Package and which that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, Mineola Community Financial, the Bank and Mineola Community MHC identified in such letter. In addition, as of the date hereof, the Agent shall have received from ▇▇▇▇ a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) until October 2020, they were the independent public accountants with respect to Mineola Community Financial, the Bank and Mineola Community MHC and within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the FRB Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇ set forth in detail in such letter, nothing has come to their attention which causes them to believe that, except as set forth in such letter, the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” in the Prospectus and the General Disclosure Package do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited consolidated financial statements included in the Registration Statement, the Prospectus and the General Disclosure Package to which their opinion applied; and (iii) in addition to the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information that are included in the Registration Statement, Prospectus and the General Disclosure Package and that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Mineola Community Financial, the Bank and Mineola Community MHC identified in such letter.
(g) At the Closing Time, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇each of BKD and ▇▇▇▇ & Company, P.C. a letter, letter dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter letters furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(h) At the Closing Time, the Securities shall have been approved for trading listing on the Nasdaq Capital Market upon notice of issuanceStock Market.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either any of the NYSE MKT, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either any of said Exchanges exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by Federal, Massachusetts either Federal or New York Texas authorities.
Appears in 1 contract
Sources: Agency Agreement (Texas Community Bancshares, Inc.)
Conditions of Agent’s Obligations. The Company, the Mid-Tier Company, the MHC, the Bank and the Agent Agents agree that the issuance and the sale of Securities and the issuance of the Exchange Shares and all obligations of the Agent Agents hereunder are subject to the accuracy of the representations and warranties of the Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the Mid-Tier Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the FRB, Commission or the Federal Reserve Board and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent Agents shall have received:
(1) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇ ▇▇▇▇▇▇ Lovells US LLP▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., counsel for the Company, the Mid-Tier Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on Agents as attached hereto as Exhibit A hereto.C.
(2) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇▇▇▇ Procter ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the AgentAgents, with respect as to such matters as the Agent may Agents shall reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇▇▇ ▇▇▇▇▇▇ Lovells US LLP ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. and ▇▇▇▇▇▇▇▇▇▇ Procter ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at Closing Time, or (if applicable) that the Closing General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇ ▇▇▇▇▇▇ Lovells US LLP ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. and ▇▇▇▇▇▇▇▇▇▇ Procter ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely as to matters of fact on certificates of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank and certificates of public officials, and . ▇▇▇▇▇▇▇▇▇▇ Procter ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may also rely on the opinion of ▇▇▇▇ ▇▇▇▇▇▇ Lovells US LLP.▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C.
(c) At the Closing Time referred to in Section 22 hereof, the Company, the Mid-Tier Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion FRB Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company Company, the Mid-Tier Company, the MHC or the Bank by the FRBFederal Reserve Board, or any other regulatory authority other than those which the FRB or the Division Federal Reserve Board permits to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC and the Bank, considered as one enterpriseMaterial Adverse Effect, whether or not arising in the ordinary course of business consistent with past practice, and the Agent Agents shall have received a certificate of the President and Chief Executive Officer of the Company, of the Mid‑Tier Company, of the MHC and of the Bank and the Executive Vice President, Chief Operating and Chief Financial Officer of the Company, of the MHCMid-Tier Company, of the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the Mid-Tier Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the Mid-Tier Company, the MHC or the Bank, as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, practice (iii) neither the Company Company, the Mid-Tier Company, the MHC nor the Bank shall have received from the FRB Federal Reserve Board, the OCC or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the AgentAgents) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the Mid-Tier Company, the MHC or the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the Mid-Tier Company, the MHC and the Bank has have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission, Commission and (vii) no order suspending the Subscription and Community Offering Federal Reserve Board’s approval of the Conversion Application, or the Syndicated Community Offering or the authorization for final use of the Prospectus transactions contemplated thereby, has been issued and no proceedings for that purpose have been initiated or, to their knowledge, or threatened by the FRB Federal Reserve Board and no person has sought to obtain regulatory or judicial review of the action of the Division Federal Reserve Board in approving the Plan in accordance with the FRB Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB Federal Reserve Board in approving the Holding Company Conversion Application.
(e) At the Closing Time, the Agent Agents shall have received a certificate of the President and Chief Executive Officer of the Mid‑Tier Company, of the MHC Company and of the Bank and the Executive Vice President and Chief Financial Officer of the Mid-Tier Company, of the MHC Company and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus fairly present the financial condition and results of operations of the MHC Mid-Tier Company and the subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus.
(f) At the time As of the execution of this Agreementdate hereof, the Agent Agents shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C., KPMG LLP a letter dated such date, in form and substance satisfactory to the AgentAgents, to the effect that: (i) they are independent public accountants with respect to the MHCCompany, the Company Mid-Tier Company, the MHC and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the FRB Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent Agents and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. KPMG LLP set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC Mid-Tier Company included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and Act, the Securities Act Regulations and the FRB Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” or under “Recent Developments” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-long term or short-short term debt of the MHC and the Bank Mid-Tier Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings net worth of the MHC and the BankMid-Tier Company, in each case as compared with the amounts shown in the June 30, 2012 consolidated statements of financial conditions balance sheets included in the Registration Statement or, (D) during the period from [ ]June 30, 2014 2012 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCMid-Tier Company, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which that are specified by the AgentAgents, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the Mid-Tier Company, the MHC and the Bank identified in such letter.
(g) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between the Agents and the persons set forth on Exhibit E hereto, relating to sales and certain other dispositions of shares of Common Stock, Mid-Tier Company Common Stock or certain other securities, shall be delivered to the Agents on or before the date hereof and shall be in full force and effect on the Closing Time.
(h) At the Closing Time, the Agent Agents shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. KPMG LLP a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(hi) At the Closing Time, the Securities and Exchange Shares shall have been approved for trading quotation on the Nasdaq Capital Global Select Market upon notice of issuance.
(ij) At the Closing Time, the Agent Agents shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisalAppraisal.
(jk) At the Closing Time, counsel for the Agent Agents shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Exchange Shares as herein contemplated shall be satisfactory in form and substance to the Agent Agents and counsel for the AgentAgents.
(kl) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the AgentAgents, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, Massachusetts New Jersey or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, Statement shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, Prospectus shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the FRBCommission or the OTS, and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of Malizia Spidi & Fisch, P.C., cou▇▇▇▇ ▇▇r the Com▇▇▇▇▇ Lovells US LLP, counsel for the Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on Exhibit A heretoto the effect that:
(i) The Company has been duly organized and is validly existing as a stock holding company chartered under the laws of the United States; the MHC has been duly organized and is validly existing as a mutual holding company chartered under the laws of the United States; the Bank has been duly organized and is validly existing as a savings bank chartered under the laws of the United States.
(2ii) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇ Procter LLP, counsel for the Agent, with respect to such matters as the Agent may reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter LLP may rely as to matters of fact on certificates of officers and directors Each of the Company, the MHC and the Bank has full corporate power and certificates of public officialsauthority to own, lease and ▇▇▇▇▇▇▇ Procter LLP may also rely on operate its properties and to conduct its business as described in the opinion of ▇▇▇▇▇ Lovells US LLPRegistration Statement and the Prospectus and to enter into and perform its obligations under this Agreement and the transactions contemplated hereby.
(ciii) At Each of the Closing Time referred MHC and the Bank is duly qualified as a foreign corporation to transact business and is in Section 2good standing under the laws of the State of New Jersey and in each other jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a Material Adverse Effect.
(iv) The Company is duly qualified as a foreign corporation to transact business and is in good standing under the laws of the State of New Jersey and in each other jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a Material Adverse Effect.
(v) The authorized capital stock of the Company consists of 45,000,000 shares of Common Stock and 5,000,000 shares of preferred stock, par value $0.10 per share, and the issued and outstanding capital stock of the Company is ____ shares of Common Stock, all of which are owned beneficially and of record by the MHC free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim; upon consummation of the Offerings, and the issuance of the Foundation Shares to the Foundation immediately upon completion thereof, the issued and outstanding capital stock of the Company will be within the range as forth in the Prospectus under "Capitalization."
(vi) The authorized capital stock of the Bank consists of ______ shares of common stock, par value $__.00 per share, and the issued and outstanding capital stock of the Bank is _______ shares of common stock, all of which are owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or legal or equitable claim. All of the issued and outstanding capital stock of the Bank has been duly authorized, validly issued and fully paid and nonassessable and has been issued in compliance with all federal and state securities laws.
(vii) The Securities and the Foundation Shares have been duly and validly authorized for issuance and sale; the Securities, when issued and delivered by the Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, or contributed by the Company pursuant to the Plan in the case of the Foundation Shares, will be duly and validly issued and fully paid and nonassessable.
(viii) The issuance of the Securities and the Foundation Shares is not subject to preemptive rights arising by operation of law, or, to such counsel's knowledge, otherwise, except for subscription rights granted pursuant to the Plan.
(ix) The issuance of the Securities and the Foundation Shares is in compliance with all conditions imposed upon the Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company or the Bank by the FRB, or any other regulatory authority other than those which OTS under the FRB or the Division permits to be completed after the Conversionterms of its written approval.
(dx) At Each of the Closing TimeCompany and the MHC is registered as a savings and holding company under the Home Owners Loan Act, there shall not have beenas amended.
(xi) The Bank is a member of the Federal Home Loan Bank of New York and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(xii) Each Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, since and each of the date hereof or since the respective dates Subsidiaries has full corporate power and authority to own, lease and operate its properties and to conduct its business as of which information is given described in the Registration Statement and Prospectus, and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the General Disclosure Packageownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a Material Adverse Effect; the activities of each Subsidiary as described in the Registration Statement and Prospectus are permitted to subsidiaries of a Federally-chartered savings bank, a Federally-chartered stock holding company and a Federally-chartered mutual holding company by the rules, regulations, resolutions and practices of the OTS; all of the issued and outstanding capital stock of each Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and is owned by the Bank directly, free and clear of any security interest, mortgage, pledge, lien, encumbrance, or legal or equitable claim.
(xiii) The Foundation is duly incorporated and is validly existing as a non-stock corporation in good standing under the laws of the State of New Jersey with corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus; the Foundation is not a savings and loan holding company within the meaning of 12 C.F.R. Section 574.2(q) as a result of the issuance of the Foundation Shares to it in accordance with the terms of the Plan and in the amounts as described in the Prospectus; no approvals are required to establish the Foundation and to contribute the Foundation Shares thereto as described in the Prospectus other than those set forth in any written order of approval of the Stock Issuance Application, a copy of which was provided to the Agent prior to the Closing Time; and the issuance of the Foundation Shares to the Foundation is registered pursuant to the Registration Statement.
(xiv) The OTS has duly approved the Stock Issuance Application and the Plan; to such counsel's knowledge, such approval remains in full force and effect and no action is pending, or to such counsel's knowledge, threatened respecting the Stock Issuance Application, including the ProspectusPlan. The Stock Issuance Application complies as to form in all material respects with the applicable requirements of the OTS, any material adverse change in includes all documents required to be filed as exhibits thereto, and is, to such counsel's knowledge, truthful, accurate and complete.
(xv) The execution and delivery of this Agreement, the financial conditionincurrence of the obligations herein set forth, results and the consummation of operationsthe transactions contemplated hereby, business affairs or prospects (A) have been duly and validly authorized by all necessary corporate action on the part of each of the Company, the MHC and the Bank, considered as one enterpriseand this Agreement constitutes the legal, whether or not arising in the ordinary course valid and binding agreement of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC, and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the MHC or the Bank, as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither the Company nor the Bank shall have received from the FRB any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC or the Bank, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC and the Bank, enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws and the availability of equitable remedies); (B) will not result in any violation of the provisions of the certificate of incorporation, articles of incorporation or charter, as the case may be, or bylaws of the Company, the MHC, the Bank or any Subsidiary; and (C) will not conflict with or constitute a breach of, or default under, and no event has complied occurred which, with all agreements notice or lapse of time or both, would constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the MHC, the Bank or the Subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC, the Bank or the Subsidiaries is a party or by which any of them may be bound, or to which any of the property or assets of the Company, the MHC, the Bank or the Subsidiaries is subject that, individually or in the aggregate, would have a Material Adverse Effect.
(xvi) No approval of any regulatory or supervisory or other public authority other than the Commission or the OTS is required in connection with the final use of the Prospectus.
(xvii) The Registration Statement is effective under the Securities Act and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no under the Securities Act or, to such counsel's knowledge, proceedings for that purpose have been therefor initiated or threatened by the Commission, and (vii) no order suspending the Subscription and Community Offering or the Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or, to their knowledge, threatened by the FRB and no person has sought to obtain regulatory or judicial review of the action of the Division in approving the Plan nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Holding Company Application.
(exviii) At the Closing TimeNo further approval, the Agent shall have received a certificate authorization, consent or other order of the President and Chief Executive Officer of the Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, do not contain any untrue statement of a material fact public board or omit to state a material fact necessary body is required in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, fairly present the financial condition and results of operations of the MHC and the subsidiaries as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus.
(f) At the time of connection with the execution and delivery of this Agreement, the Agent shall have received from ▇▇▇▇▇▇▇▇▇issuance of both the Securities and the Foundation Shares and the consummation of the transactions contemplated by the Plan, ▇▇▇▇▇▇▇ & Company, P.C., a letter dated such date, in form and substance satisfactory except as may be required under the securities or "Blue Sky" laws of various jurisdictions as to which no opinion need be rendered.
(xix) At the Agent, to time the effect that: (i) they are independent public accountants with respect to the MHCRegistration Statement became effective, the Company and Registration Statement (other than the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public Accountants, the Securities Act and the Securities Act Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules statistical data included in the Registration Statement and covered by their opinions therein comply therein, as to which no opinion need be rendered) complied as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; .
(iiixx) based upon limited procedures as agreed upon by The Common Stock conforms to the Agent description thereof contained in the Prospectus, and ▇▇▇▇▇▇▇▇▇the form of certificate used to evidence the Common Stock complies with all applicable statutory and regulatory requirements.
(xxi) There are no legal or governmental proceedings pending or, ▇▇▇▇▇▇▇ & to such counsel's knowledge, threatened against or affecting the Company, P.C. set forth the MHC, the Bank or the Subsidiaries which are required, individually or in detail in such letterthe aggregate, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC included be disclosed in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as other than those disclosed therein, and all pending legal or governmental proceedings to form in all material respects with which the applicable accounting requirements Company, the MHC, the Bank or any Subsidiary is a party or to which any of the Securities Act and the Securities Act Regulations or their property is subject which are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included described in the Registration Statement, (C) at a specified date not more than five days prior including ordinary routine litigation incidental to the date of this Agreementbusiness, there has been any increase are, considered in the consolidated long-term or short-term debt of the MHC and the Bank or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings of the MHC and the Bank, in each case as compared with the amounts shown in the consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from [ ], 2014 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHC, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified proceduresaggregate, not constituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the MHC and the Bank identified in such lettermaterial.
(gxxii) At The information in the Closing TimeProspectus under "Risk Factors - Persons Who Purchase Stock in the Offering Will Own a Minority of Roma Financial Corporation's Common Stock and Will Not Be Able to Exercise Voting Control Over Most Matters Put to a Vote of Stockholders, Including Any Proposal Regarding the Agent shall have received from ▇▇▇▇▇▇▇▇▇Acquisition of Roma Financial Corporation" "Provisions in Our Charter and Bylaws Limit the Rights of Stockholders, ▇▇▇▇▇▇▇ & Company, P.C. a letter, dated as May Deter Potential Takeovers and May Reduce the Trading Price of the Closing TimeOur Stock," "Our Policy Regarding Dividends," "Regulation," "Taxation," "The Offering," "Roma Bank Community Foundation," "Restrictions on Acquisition of Roma Financial Corporation," "Description of Capital Stock" and "Legal and Tax Opinions", to the effect extent that they reaffirm the statements made in the letter furnished pursuant to subsection (f) it constitutes matters of this Sectionlaw, except that the specified date referred to shall be a date not more than five days prior to the Closing Time.
(h) At the Closing Timesummaries of legal matters, the Securities shall have been approved for trading on the Nasdaq Capital Market upon notice of issuance.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related or proceedings, or legal conclusions, has been reviewed by them and is complete and accurate in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agentmaterial respects.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by Federal, Massachusetts or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the --------------------------------- Agent hereunder are to sell the Stock as provided herein shall be subject to the accuracy accuracy, as of the date hereof, and as of each Closing Date for any Pricing Period contemplated under this Agreement, of the representations and warranties of the Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC and the Bank made pursuant to the provisions hereofCompany herein, to the performance by the Company, the MHC and the Bank Company of their its obligations hereunder, hereunder and to the following further additional conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, Statement shall have been issued under the Securities Act or proceedings therefor initiated and no proceeding for that purpose shall have been instituted or, to the knowledge of the CompanyCompany or the Agent, threatened by the Commission, no order suspending the Offerings or authorization for final use and any request of the Prospectus, including any prospectus Commission for additional information (to be included in a post-effective amendment to the Registration Statement, Statement or the Prospectus or otherwise) shall have been issued or proceedings therefor initiated or, complied with to the knowledge of the Company, threatened by the FRB, and no order suspending the sale of the Securities in any jurisdiction shall have been issuedAgent's satisfaction.
(b) At The Agent shall not have advised the Closing TimeCompany that the Registration Statement or Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact that in the Agent's reasonable opinion is material, or omits to state a fact that in the Agent's reasonable opinion is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) Except as contemplated in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any material change, on a consolidated basis, in the capital stock of the Company and its subsidiaries, or any material adverse change, or any development that may reasonably be expected to cause a material adverse change, in the condition (financial or other), business, prospects, net worth or results of operations of the Company and its subsidiaries, or any change in the rating assigned to any securities of the Company.
(d) The Agent shall have received:
received at the date of the commencement of the first Pricing Period hereunder (1the "Commencement Date") The favorable opinionand at every other date specified in Section 4(m) hereof, opinions of Company Counsel, dated as of the Closing TimeCommencement Date and dated as of such other date, respectively, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of ▇▇▇▇▇ Lovells US LLPits jurisdiction of incorporation, counsel has full corporate power and authority to conduct its business as described in the Registration Statement and Prospectus and is duly qualified to do business in each jurisdiction set forth on a schedule thereto; to their knowledge, such jurisdictions are the only jurisdictions in which the Company's ownership or leasing of real property or conduct of its business requires such qualification;
(ii) Each subsidiary of the Company has been duly incorporated and is validly existing as a corporation (or partnership, as the case may be) in good standing under the laws of the jurisdiction of its incorporation, has corporate (or partnership) power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement and Prospectus, and is duly qualified as a foreign corporation (or partnership) to transact business and is in good standing in each jurisdiction set forth on a schedule thereto; to their knowledge, such jurisdictions are the only jurisdictions in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business; all of the issued outstanding capital stock (or other equity interests) of each such subsidiary has been duly authorized and validly issued, is fully paid and nonassessable (except for the general partner interests in CMC Investment Partnership, which are assessable in accordance with its partnership agreement and applicable law), and, except for (A) a 1% general partner interest in CMC Investment Partnership held by Capstead Inc. and (B) shares of Capstead Inc. which are owned by parties other than the Company (which will be set forth in a schedule to the opinion), is owned by the Company, directly or indirectly, free and clear of any mortgage, pledge, lien, encumbrance, claim or equity;
(iii) The shares of Stock have been duly and validly authorized, and, when issued and delivered to and paid for by the MHC purchasers thereof pursuant to this Agreement, will be fully paid and nonassessable and conform to the description thereof in the Prospectus; and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on Exhibit A hereto.
(2) The favorable opinion, dated as shareholders of the Closing Time, of ▇▇▇▇▇▇▇ Procter LLP, counsel for the Agent, Company have no preemptive rights with respect to the Stock; all corporate action required to be taken for the authorization, issue and sale of the Stock has been validly and sufficiently taken; and the shares of Stock are the subject of an effective registration statement permitting their sale in the manner contemplated by this Agreement;
(iv) The Registration Statement has become effective under the Act; (if applicable, the filing of the Prospectus Supplements pursuant to Rule 424(b) have been made in the manner and within the time period required by Rule 424(b)); to the knowledge of such matters counsel no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been instituted or threatened by the Commission;
(v) The Registration Statement, when it became effective, and the Prospectus and any amendment or supplement thereto, on the date of filing thereof with the Commission (and at each Closing Date on or prior to the date of the opinion), complied as to form in all material respects with the requirements of the Act and the Rules and Regulations; and the documents incorporated by reference in the Registration Statement or Prospectus or any amendment or supplement thereto, when filed with the Commission under the Exchange Act, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder;
(vi) The description in the Registration Statement and Prospectus of statutes, legal and governmental proceedings, contracts and other documents are accurate in all material respects and fairly present the information required to be shown; and such counsel do not know of any statutes or legal or governmental proceedings required to be described in the Prospectus that are not described as required, or of any contracts or documents of a character required to be described in the Registration Statement or Prospectus (or required to be filed under the Exchange Act if upon such filing they would be incorporated by reference therein) or to be filed as exhibits to the Registration Statement that are not described and filed as required;
(vii) This Agreement has been duly authorized, executed and delivered by the Company;
(viii) The execution, delivery and performance of this Agreement by the Company and the consummation of the transactions contemplated herein by the Company do not and will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any agreement or instrument known to such counsel to which the Company or any of its subsidiaries is a party or by which it is bound or to which any of the property of the Company or any of its subsidiaries is subject except for such breaches or defaults that would not in the aggregate have a material adverse effect on the Company's ability to perform its obligations under this Agreement or on the condition, financial or otherwise, or the earnings business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, nor will such action result in the violation of the Company's charter or by-laws, or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of its properties; and no consent, approval, authorization or order of, or filing with, any court or governmental agency or body is required for the consummation of the transactions contemplated by this Agreement in connection with the issuance or sale of the Stock by the Company, except such as have been obtained under the Act and such as may be required under state securities or blue sky laws in connection with the sale and distribution of the Stock by the Agent;
(ix) Except for permits and similar authorizations required under the securities or blue sky laws of certain states, no consent, waiver, approval, authorization or other order of any regulatory body, administrative agency or other governmental body is legally required for the sale of the Stock by the Agent may reasonably require.as contemplated hereby and by the Prospectus;
(3x) In addition to giving Such counsel knows of no actions, suits or proceedings pending or threatened against or affecting the Company or any of its subsidiaries or the business, properties, business prospects, condition (financial or otherwise) or results of operations of the Company or any of its subsidiaries, or any of their opinions required respective officers in their capacities as such, before or by subsections any Federal or state or foreign court, commission, regulatory body, wherein an unfavorable ruling, decision or finding might materially and adversely affect the Company or any of its subsidiaries or its business, properties, business prospects, condition (b)(lfinancial or otherwise) or results of operations; and
(xi) For all taxable years beginning September 5, 1985 (the date of the Company's initial public offering of common stock) and ending December 31, 1994, Capstead REIT (b)(2)as defined below) has met the requirements for qualification as a REIT under the Code. Capstead REIT will be able to qualify as a REIT for the taxable year beginning January 1, respectively1995, provided that after the date hereof, Capstead REIT continues to be organized and operated as described in the Registration Statement and according to representations made to us in a certificate of this Sectionan officer of the Company and therefore continues to satisfy the income tests, ▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter LLP distribution, shareholder, recordkeeping and other applicable REIT requirements under the Code. "Capstead REIT" means the Company, as aggregated with such wholly- owned subsidiaries as were in existence during the period for which reference is made. The information presented in the Registration Statement under the caption "Taxation," to the extent it constitutes matters of law or legal conclusions, is accurate in all material respects. In addition, such counsel shall each additionally state that nothing such counsel has come to their attention that would lead them no reason to believe that either the Registration Statement (except for financial statements, notes to financial statements, stock valuation information and schedules and other financial or statistical data included therein, as to which counsel need make no statement)Statement, at the time it (including each Post-Effective Amendment thereto) became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statementsand any amendments or supplements thereto, notes to financial statements, stock valuation information on the date of filing thereof with the Commission and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time Commencement Date and at each Closing Date on or prior to the Registration Statement became effective or at date of the Closing Timeopinion, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter LLP may rely ; it being understood that such counsel need express no opinion as to matters of fact on certificates of officers and directors of the Company, the MHC and the Bank and certificates of public officials, and ▇▇▇▇▇▇▇ Procter LLP may also rely on the opinion of ▇▇▇▇▇ Lovells US LLP.
(c) At the Closing Time referred to in Section 2, the Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company or the Bank by the FRB, or any other regulatory authority other than those which the FRB or the Division permits to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC and the Bank, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC, and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the MHC or the Bank, as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither the Company nor the Bank shall have received from the FRB any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC or the Bank, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC and the Bank has complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission, and (vii) no order suspending the Subscription and Community Offering or the Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or, to their knowledge, threatened by the FRB and no person has sought to obtain regulatory or judicial review of the action of the Division in approving the Plan nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Holding Company Application.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on their knowledge, the financial statements and or other financial information and statistical data included in the Registration Statement and the General Disclosure Package, including the Prospectus, fairly present the financial condition and results of operations of the MHC and the subsidiaries as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus.
(f) At the time of the execution of this Agreement, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C., a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHC, the Company and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public Accountants, the Securities Act and the Securities Act Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC and the Bank or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings of the MHC and the Bank, in each case as compared with the amounts shown in the consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from [ ], 2014 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHC, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the MHC and the Bank identified in such letter.
(g) At the Closing Time, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five days prior to the Closing Time.
(h) At the Closing Time, the Securities shall have been approved for trading on the Nasdaq Capital Market upon notice of issuance.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company documents mentioned in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agentthis paragraph.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by Federal, Massachusetts or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the Mid-Tier Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and the issuance of the Exchange Shares and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the Mid-Tier Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, Statement shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, Prospectus shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the FRB, Commission or the OTS and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇▇▇▇ Lovells US ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, the Mid-Tier Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on Agent as attached hereto as Exhibit A hereto.A.
(2) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇ ▇▇▇▇▇▇ Procter LLP▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., counsel for the Agent, with respect to such matters as the Agent may reasonably require.attached hereto as Exhibit B.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇▇▇▇▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇▇ Procter LLP and ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at Closing Time, or (if applicable) that the Closing General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter LLP 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, and ▇▇▇▇▇▇▇ Procter LLP may also rely on the opinion of ▇▇▇▇▇ Lovells US LLP.
(c) At the Closing Time referred to in Section 22 hereof, the Company, the Mid-Tier Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion OTS Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company Company, the Mid-Tier Company, the MHC or the Bank by the FRBOTS, or any other regulatory authority other than those which the FRB or the Division OTS permits to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the Mid-Tier Company, the MHC and the Bank, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the Mid-Tier Company, of the MHC and of the Bank and the Chief Financial Officer chief financial or chief accounting officer of the Company, of the MHCMid-Tier Company, of the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the Mid-Tier Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the Mid-Tier Company, the MHC or the Bank, as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, practice (iii) neither the Company Company, the Mid-Tier Company, the MHC nor the Bank shall have received from the FRB OTS any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the Mid-Tier Company, the MHC or the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the Mid-Tier Company, the MHC and the Bank has have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission, Commission and (vii) no order suspending the Subscription and Community Offering or the Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or, to their knowledge, or threatened by the FRB OTS and no person has sought to obtain regulatory or judicial review of the action of the Division OTS in approving the Plan in accordance with the OTS Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB OTS in approving the Holding Company Conversion Application.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer and President of the Mid-Tier Company, of the MHC Company and of the Bank and the Chief Financial Officer of the Mid-Tier Company, of the MHC Company and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus fairly present the financial condition and results of operations of the MHC Mid-Tier Company and the subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus.
(f) At the time As of the execution of this Agreementdate hereof, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Deloitte & Company, P.C., Touche LLP a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHCCompany, the Company Mid-Tier Company, the MHC and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the OTS Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Deloitte & Company, P.C. Touche LLP set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC Mid-Tier Company included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and Act, the Securities Act Regulations and the OTS Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-long term or short-short term debt of the MHC and the Bank Mid-Tier Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings net worth of the MHC and the BankMid-Tier Company, in each case as compared with the amounts shown in the June 30, 2008 consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from [ ]June 30, 2014 2008 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCMid-Tier Company, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the Mid-Tier Company, the MHC and the Bank identified in such letter.
(g) At the Closing Time, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Deloitte & Company, P.C. Touche LLP a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(h) At the Closing Time, the Securities and Exchange Shares shall have been approved for trading quotation on the Nasdaq Capital Global Market upon notice of issuance.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Exchange Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, Massachusetts New Jersey or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC Company and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC Company and the officers and trustees of Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC Company and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, threatened by the FRBCommission, the PDB, the FDIC or the FRB and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇ ▇▇ Lovells US LLP▇▇▇▇▇, PC, counsel for the Company, the MHC Company and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on as attached hereto as Exhibit A hereto.A.
(2) The favorable opinion, dated as of the Closing Time, of Silver, ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ Procter LLP, counsel for the Agent, with respect as to such matters as the Agent may reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇▇▇ ▇▇▇▇▇▇, PC and Silver, ▇▇▇▇▇▇▇▇, ▇▇▇▇ Lovells US LLP and & ▇▇▇▇▇▇▇ Procter LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial financial, pro forma or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial financial, pro forma or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective effective, as of the date of the Prospectus or at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇ ▇▇▇▇▇▇, PC and Silver, ▇▇▇▇▇▇▇▇, ▇▇▇▇ Lovells US LLP and & ▇▇▇▇▇▇▇ Procter LLP may rely as to matters of fact on certificates of officers and directors of the Company, the MHC Company and the Bank and certificates of public officials. Silver, and ▇▇▇▇▇▇▇▇, Taff & ▇▇▇▇▇▇▇ Procter LLP may also rely on the opinion of ▇▇▇▇ ▇▇ Lovells US LLP▇▇▇▇▇, PC.
(c) At the Closing Time referred to in Section 22 hereof, the Company, the MHC Company and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company or the Bank by the FRB, the PDB or the FDIC or any other regulatory authority other than those which the FRB FRB, the PDB or the Division permits FDIC or any such other regulatory authority permit to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC and the Bank, considered as one enterpriseMaterial Adverse Effect, whether or not arising in the ordinary course of business consistent with past practicebusiness, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC Company and of the Bank and the Chief Financial Officer of the Company, of the MHC, Company and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse changeMaterial Adverse Effect, (ii) there shall have been no material transaction entered into by the Company, the MHC Company or the Bank from the latest date as of which the financial condition of the Company, the MHC Company or the Bank, as set forth in the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither the Company nor the Bank shall have received from the FRB FRB, the PDB or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC or Company and the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC Company and the Bank has have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company or the Bank, threatened by the Commission, and (vii) no order suspending the Subscription and Community Offering PDB’s approval of the Conversion Applications or the Syndicated Community Offering FRB’s or PDB’s approval of the Holding Company Applications or the authorization for final use of the Prospectus transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to their knowledgethe knowledge of the Company or the Bank, threatened by the PDB or the FRB and no person has sought to obtain regulatory or judicial review of the action of the Division PDB in approving the Plan in accordance with the Pennsylvania Conversion Law nor has any person sought to obtain regulatory or judicial review of the action of the PDB in approving the Conversion Applications or the FRB in approving the Holding Company ApplicationApplications, and (viii) no order suspending the Subscription and Community Offering or the Syndicated Offering or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the PDB, the FDIC or the FRB.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC Company and of the Bank and the Chief Financial Officer of the Company, of the MHC Company and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package fairly present the financial condition and results of operations of the MHC and the subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the General Disclosure PackageProspectus; (iv) they are responsible for establishing and maintaining disclosure controls and procedures; (v) they have designed such disclosure controls and procedures to ensure that material information relating to the Company and the Bank is made known to them; (vi) they have evaluated the effectiveness of their disclosure controls and procedures; and (vii) they have disclosed to BDO USA LLP and the audit committee (A) all significant deficiencies in the design or operation of disclosure controls and procedures which are reasonably likely to adversely affect the Bank’s ability to record, including process, summarize, and report financial data, and have identified for the ProspectusCompany’s and the Bank’s independent registered public accounting firm any material weaknesses in disclosure controls and procedures and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s and the Bank’s disclosure controls and procedures.
(f) At the time As of the execution of this Agreementdate hereof, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C., BDO USA LLP a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHC, the Company and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the Conversion Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. BDO USA LLP set forth in detail in such letterletters, nothing has come to their attention which causes them to believe that that, except as set forth in such letters, (A) the unaudited consolidated financial statements and supporting schedules of the MHC included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other DataData of Huntingdon Valley Bank” or under “Recent Developments” in the Registration Statement Prospectus and Prospectus the General Disclosure Package do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited consolidated financial statements included in the Registration Statement, the Prospectus and the General Disclosure Package, (CB) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC and the Bank or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings of the MHC and the Bank, in each case as compared with the amounts shown in the consolidated September 30, 2016 unaudited statements of financial conditions included condition presented under the “Recent Developments” caption in the Registration Statement or, (D) during the period from [ ]September 30, 2014 2016 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCBank, except in all instances for increases or decreases which the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement Statement, Prospectus and the General Disclosure Package, including the Prospectus Package and which that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the MHC Company and the Bank identified in such letter.
(g) At the Closing Time, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. BDO USA LLP a letter, letter dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter letters furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(h) At the Closing Time, the Securities shall have been approved for trading listing on the Nasdaq Capital Market upon notice of issuanceStock Market.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either any of the NYSE MKT, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either any of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, Massachusetts Pennsylvania or New York authorities.
Appears in 1 contract
Sources: Agency Agreement (HV Bancorp, Inc.)
Conditions of Agent’s Obligations. The Company, the Mid-Tier Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and the issuance of the Exchange Shares and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the Mid-Tier Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, or to the knowledge of the Company, Company threatened by the Commission, ; no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the FRB, Commission or the FRB and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇▇▇▇ Lovells US ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, the Mid-Tier Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on Agent as attached hereto as Exhibit A B hereto.
(2) The favorable opinion, dated as of the Closing Time, of Elias, Matz, ▇▇▇▇▇▇▇ Procter LLP& ▇▇▇▇▇▇▇ L.L.P., counsel for the Agent, with respect to such matters as the Agent may reasonably requireattached hereto as Exhibit C hereto.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇▇▇▇▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇▇ Procter & ▇▇▇▇▇▇▇▇ LLP and Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P. shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statementsstatements and schedules, notes to financial statements, stock valuation information and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statementsstatements and schedules, notes to financial statements, stock valuation information and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at Closing Time, or (if applicable) that the Closing General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇▇▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇▇ Procter & ▇▇▇▇▇▇▇▇ LLP and Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. may rely as to matters of fact on certificates of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank and certificates of public officials. Elias, and Matz, ▇▇▇▇▇▇▇ Procter LLP & ▇▇▇▇▇▇▇ L.L.P. may also rely on the opinion of ▇▇▇▇▇▇▇▇▇▇ Lovells US ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP.
(c) At the Closing Time referred to in Section 22 hereof, the Company, the Mid-Tier Company, the MHC and the Bank shall have completed in all material respects with the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion FRB Regulations and the Control Act Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company Company, the Mid-Tier Company, the MHC or the Bank by the FRB, FRB or any other regulatory authority other than those which the FRB or the Division permits to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC and the Bank, considered as one enterpriseMaterial Adverse Effect, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the Mid-Tier Company, the MHC and of the Bank and the Chief Financial Officer chief financial or chief accounting officer of the Company, of the MHCMid-Tier Company, of the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the Mid-Tier Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the Mid-Tier Company, the MHC or the Bank, as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither the Company Company, the Mid-Tier Company, the MHC nor the Bank shall have received from the OCC or the FRB any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations operations, business affairs or prospects of the Company, the MHC or Mid-Tier Company, the BankMHC, the Bank and the Subsidiaries, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the Mid-Tier Company, the MHC and the Bank has have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission, Commission and (vii) no order suspending the Subscription and Community Offering or the Syndicated Community Public Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or, to their knowledge, or threatened by the FRB and no person has sought to obtain regulatory or judicial review of the action of the Division FRB in approving the Plan in accordance with the FRB Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Conversion Application or the Holding Company Application.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of the Mid-Tier Company, of the MHC Company and of the Bank and the Chief Financial Officer chief financial or chief accounting officer of the Mid-Tier Company, the Company, of the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus fairly present the financial condition and results of operations of the MHC Mid-Tier Company and the subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus.
(f) At the time As of the execution of this Agreementdate hereof, the Agent shall have received from ▇▇▇▇▇▇▇▇▇Clark, Schaefer, ▇▇▇▇▇▇▇ & Company, P.C., Co. a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) that they are the independent public accountants with respect to the MHCCompany, the Company Mid-Tier Company, the MHC and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the FRB Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as (but not an audit examination in accordance with the auditing standards of the PCAOB) consisting of a review in accordance with Statement on Auditing Standards (SAS) No. 100, “Interim Financial Information” (AU Section 722), agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇Clark, Schaefer, ▇▇▇▇▇▇▇ & Company, P.C. Co. set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC Mid-Tier Company included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and Act, the Securities Act Regulations and the FRB Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” [or under “Recent Developments”] in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC and the Bank Mid-Tier Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings net worth of the MHC and the BankMid-Tier Company, in each case as compared with the amounts shown in the consolidated statements of financial conditions included in the Registration Statement orStatement, or (D) during the period from [ ][September 30, 2014 2012] to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCMid-Tier Company, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the Mid-Tier Company, the MHC and the Bank identified in such letter.
(g) At the Closing Time, the Agent shall have received from ▇▇▇▇▇▇▇▇▇Clark, Schaefer, ▇▇▇▇▇▇▇ & Company, P.C. Co. a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(h) At the Closing Time, the Securities and Exchange Shares shall have been approved for trading quotation on the Nasdaq Capital Global Market upon notice of issuance.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Exchange Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, Massachusetts Indiana or New York authorities.
(l) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between the Agent and the persons set forth on Exhibit E hereto, relating to sales and certain other dispositions of shares of Common Stock or certain other securities, shall be delivered to the Agent on or before the date hereof and shall be in full force and effect on the Closing Date.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHCBank, the Bank Marathon MHC and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the Bank and Marathon MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Bank and Marathon MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the Bank and Marathon MHC and the Bank of their obligations hereunder, and to the following further conditions::
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, threatened by the FRB, Commission or the FRB and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇ ▇▇ Lovells US LLP▇▇▇▇▇, PC, counsel for the Company, the MHC Bank and the BankMarathon MHC, in form and substance satisfactory to counsel for the Agent, set forth on as attached hereto as Exhibit A hereto.A.
(2) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇ Procter LLP, counsel for the Agent, with respect to such matters as the Agent may reasonably require.
(3) In addition to giving their opinions opinion required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter LLP , PC shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial financial, pro forma or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial financial, pro forma or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective effective, as of the date of the Prospectus or at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinionsits opinion, ▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter LLP , PC may rely as to matters of fact on certificates of officers and directors of the Company, the Marathon MHC and the Bank and certificates of public officials, and ▇▇▇▇▇▇▇ Procter LLP may also rely on the opinion of ▇▇▇▇▇ Lovells US LLP.
(c) At the Closing Time referred to in Section 22 hereof, the Company, the Bank and Marathon MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion FRB Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company or Company, the Bank or Marathon MHC by the FRB, the WDFI or any other regulatory authority other than those which the FRB FRB, the WDFI or the Division permits any such other regulatory authority permit to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC and the Bank, considered as one enterpriseMaterial Adverse Effect, whether or not arising in the ordinary course of business consistent with past practicebusiness, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC and of the Bank and Marathon MHC and the Chief Financial Officer of the Company, of the Bank and Marathon MHC, and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse changeMaterial Adverse Effect, (ii) there shall have been no material transaction entered into by the Company, the Bank or Marathon MHC or the Bank from the latest date as of which the financial condition of the Company, the MHC Company or the Bank, as set forth in the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither none of the Company nor Company, the Bank or Marathon MHC shall have received from the FRB FRB, the WDFI or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC Bank or the BankMarathon MHC, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the Bank and Marathon MHC and the Bank has have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company, the Bank or Marathon MHC, threatened by the Commission, and (vii) no order suspending the Subscription and Community Offering FRB’s approval of the Conversion Application, the WDFI’s approval of the WDFI Application or the Syndicated Community Offering or the authorization for final use of the Prospectus transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to their knowledgethe knowledge of the Company, the Bank or Marathon MHC, threatened by the FRB or the WDFI and no person has sought to obtain regulatory or judicial review of the action of the Division FRB or the WDFI in approving the Plan in accordance with the FRB Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Holding Company Conversion Application, and (viii) no order suspending the Offerings or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the FRB or the WDFI.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC and of the Bank and Marathon MHC and the Chief Financial Officer of the Company, of the MHC Bank and of the BankMarathon MHC, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package fairly present the financial condition and results of operations of the MHC and the subsidiaries Company as of and for the dates and periods covered by the Registration Statement and the General Disclosure PackageProspectus; (iv) they are responsible for establishing and maintaining disclosure controls and procedures; (v) they have designed such disclosure controls and procedures to ensure that material information relating to the Company and the Bank is made known to them; (vi) they have evaluated the effectiveness of their disclosure controls and procedures; and (vii) they have disclosed to ▇▇▇▇▇▇▇ and the audit committee (A) all significant deficiencies in the design or operation of disclosure controls and procedures which are reasonably likely to adversely affect the Company’s ability to record, including process, summarize, and report financial data, and have identified for the ProspectusCompany’s and the Bank’s independent registered public accounting firm any material weaknesses in disclosure controls and procedures and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s disclosure controls and procedures.
(f) At the time As of the execution of this Agreementdate hereof, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C., a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the Marathon MHC, the Company and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the FRB Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with generally accepted auditing standards) consisting of a review (in accordance with Auditing Standard No. 4105) of the latest available unaudited interim financial statements of the Company prepared by the Agent and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. set forth in detail in such lettera reading of the minutes of the meetings of the Board of Directors of the Company and the Bank and committees thereof and consultations with officers of the Company and the Bank responsible for financial and accounting matters, nothing has come came to their attention which causes caused them to believe that that: (A) the such unaudited consolidated financial statements and supporting schedules of the MHC included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations or Prospectus are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, ; or (B) except as stated in such letter, during the period from the date of the latest unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC and the Bank or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings of the MHC and the Bank, in each case as compared with the amounts shown in the consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from [ ], 2014 Prospectus to a specified date not more than five three (3) business days prior to the date of this Agreementthe Prospectus, there were was any decreasesincrease in borrowings (defined as securities sold under agreements to repurchase and any other form of debt other than deposits), as compared with the corresponding period non-performing loans or special mention loans or decrease in the preceding fiscal yeardeposits, total assets, total loans, the allowance for credit losses or equity, or there was any decrease in total interest income, net interest income, net interest income after the provision for loan credit losses, income (loss) before income tax expense taxes, or net income (loss) of the MHC, except Company for the period commencing immediately after the period covered by the latest unaudited income statement included in all instances for increases or decreases which the Registration Statement Prospectus and ended not more than three (3) business days prior to the General Disclosure Package, including date of the Prospectus, disclose have occurred or may occurProspectus as compared to the corresponding period in the preceding year; and (iv) stating that, in addition to the examination audit referred to in their opinions its opinion included in the Prospectus and the limited performance of the procedures referred to in clause (iii) aboveof this subsection (f), they have carried out certain specified procedurescompared with the general accounting records of the Company, not constituting an audit, with respect to certain amounts, percentages and financial information which are included subject to the internal controls of the accounting system of the Company and other data prepared by the Company from accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Registration Statement and Prospectus as the General Disclosure Package, including the Prospectus and which are specified by the AgentAgent may reasonably request, and they have found such amounts, amounts and percentages and financial information to be in agreement with the relevant accounting, financial and other records of the MHC and the Bank identified in such lettertherewith (subject to rounding).
(g) At the Closing Time, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. a letter, letter dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five three (3) days prior to the Closing Time.
(h) At the Closing Time, the Securities and the Exchange Shares shall have been approved for trading listing on the Nasdaq Capital Market upon notice of issuance.Stock Market.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, (i) confirming that said firm is independent of the Company, the Bank and Marathon MHC and is experienced and expert in the area of corporate appraisals, (ii) stating in effect that the Appraisal complies in all material respects with the applicable requirements of the FRB Regulations, and (iii) further stating that its appraisalopinion of the aggregate pro forma market value of the Company, the Bank and Marathon MHC expressed in the Appraisal as most recently updated, remains in effect.
(j) At or prior to the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon advise the Agent with respect to the issuance and sale of the Securities and the Foundation Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Exchange Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either any of the NYSE MKT, the New York Stock Exchange or Exchange, the Nasdaq Stock Market or the OTC Pink Marketplace shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either any of said Exchanges exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by Federal, Massachusetts either Federal or New York Wisconsin authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHCBank, the Bank Marathon MHC and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the Bank and Marathon MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Bank and Marathon MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the Bank and Marathon MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, threatened by the FRB, Commission or the FRB and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇ ▇▇ Lovells US LLP▇▇▇▇▇, PC, counsel for the Company, the MHC Bank and the BankMarathon MHC, in form and substance satisfactory to counsel for the Agent, set forth on as attached hereto as Exhibit A hereto.A.
(2) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇ Procter LLP, counsel for the Agent, with respect to such matters as the Agent may reasonably require.
(3) In addition to giving their opinions opinion required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter LLP , PC shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial financial, pro forma or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial financial, pro forma or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective effective, as of the date of the Prospectus or at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinionsits opinion, ▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter LLP , PC may rely as to matters of fact on certificates of officers and directors of the Company, the Marathon MHC and the Bank and certificates of public officials, and ▇▇▇▇▇▇▇ Procter LLP may also rely on the opinion of ▇▇▇▇▇ Lovells US LLP.
(c) At the Closing Time referred to in Section 22 hereof, the Company, the Bank and Marathon MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion FRB Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company or Company, the Bank or Marathon MHC by the FRB, the WDFI or any other regulatory authority other than those which the FRB FRB, the WDFI or the Division permits any such other regulatory authority permit to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC and the Bank, considered as one enterpriseMaterial Adverse Effect, whether or not arising in the ordinary course of business consistent with past practicebusiness, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC and of the Bank and Marathon MHC and the Chief Financial Officer of the Company, of the Bank and Marathon MHC, and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse changeMaterial Adverse Effect, (ii) there shall have been no material transaction entered into by the Company, the Bank or Marathon MHC or the Bank from the latest date as of which the financial condition of the Company, the MHC Company or the Bank, as set forth in the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither none of the Company nor Company, the Bank or Marathon MHC shall have received from the FRB FRB, the WDFI or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC Bank or the BankMarathon MHC, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the Bank and Marathon MHC and the Bank has have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company, the Bank or Marathon MHC, threatened by the Commission, and (vii) no order suspending the Subscription and Community Offering FRB’s approval of the Conversion Application, the WDFI’s approval of the WDFI Application or the Syndicated Community Offering or the authorization for final use of the Prospectus transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to their knowledgethe knowledge of the Company, the Bank or Marathon MHC, threatened by the FRB or the WDFI and no person has sought to obtain regulatory or judicial review of the action of the Division FRB or the WDFI in approving the Plan in accordance with the FRB Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Holding Company Conversion Application, and (viii) no order suspending the Offerings or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the FRB or the WDFI.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC and of the Bank and Marathon MHC and the Chief Financial Officer of the Company, of the MHC Bank and of the BankMarathon MHC, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package fairly present the financial condition and results of operations of the MHC and the subsidiaries Company as of and for the dates and periods covered by the Registration Statement and the General Disclosure PackageProspectus; (iv) they are responsible for establishing and maintaining disclosure controls and procedures; (v) they have designed such disclosure controls and procedures to ensure that material information relating to the Company and the Bank is made known to them; (vi) they have evaluated the effectiveness of their disclosure controls and procedures; and (vii) they have disclosed to ▇▇▇▇▇▇▇ and the audit committee (A) all significant deficiencies in the design or operation of disclosure controls and procedures which are reasonably likely to adversely affect the Company’s ability to record, including process, summarize, and report financial data, and have identified for the ProspectusCompany’s and the Bank’s independent registered public accounting firm any material weaknesses in disclosure controls and procedures and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s disclosure controls and procedures.
(f) At the time As of the execution of this Agreementdate hereof, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C., a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the Marathon MHC, the Company and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the FRB Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with generally accepted auditing standards) consisting of a review (in accordance with Auditing Standard No. 4105) of the latest available unaudited interim financial statements of the Company prepared by the Agent and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. set forth in detail in such lettera reading of the minutes of the meetings of the Board of Directors of the Company and the Bank and committees thereof and consultations with officers of the Company and the Bank responsible for financial and accounting matters, nothing has come came to their attention which causes caused them to believe that that: (A) the such unaudited consolidated financial statements and supporting schedules of the MHC included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations or Prospectus are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, ; or (B) except as stated in such letter, during the period from the date of the latest unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC and the Bank or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings of the MHC and the Bank, in each case as compared with the amounts shown in the consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from [ ], 2014 Prospectus to a specified date not more than five three (3) business days prior to the date of this Agreementthe Prospectus, there were was any decreasesincrease in borrowings (defined as securities sold under agreements to repurchase and any other form of debt other than deposits), as compared with the corresponding period non-performing loans or special mention loans or decrease in the preceding fiscal yeardeposits, total assets, total loans, the allowance for credit losses or equity, or there was any decrease in total interest income, net interest income, net interest income after the provision for loan credit losses, income (loss) before income tax expense taxes, or net income (loss) of the MHC, except Company for the period commencing immediately after the period covered by the latest unaudited income statement included in all instances for increases or decreases which the Registration Statement Prospectus and ended not more than three (3) business days prior to the General Disclosure Package, including date of the Prospectus, disclose have occurred or may occurProspectus as compared to the corresponding period in the preceding year; and (iv) stating that, in addition to the examination audit referred to in their opinions its opinion included in the Prospectus and the limited performance of the procedures referred to in clause (iii) aboveof this subsection (f), they have carried out certain specified procedurescompared with the general accounting records of the Company, not constituting an audit, with respect to certain amounts, percentages and financial information which are included subject to the internal controls of the accounting system of the Company and other data prepared by the Company from accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Registration Statement and Prospectus as the General Disclosure Package, including the Prospectus and which are specified by the AgentAgent may reasonably request, and they have found such amounts, amounts and percentages and financial information to be in agreement with the relevant accounting, financial and other records of the MHC and the Bank identified in such lettertherewith (subject to rounding).
(g) At the Closing Time, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. a letter, letter dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five three (3) days prior to the Closing Time.
(h) At the Closing Time, the Securities and the Exchange Shares shall have been approved for trading listing on the Nasdaq Capital Market upon notice of issuanceStock Market.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, (i) confirming that said firm is independent of the Company, the Bank and Marathon MHC and is experienced and expert in the area of corporate appraisals, (ii) stating in effect that the Appraisal complies in all material respects with the applicable requirements of the FRB Regulations, and (iii) further stating that its appraisalopinion of the aggregate pro forma market value of the Company, the Bank and Marathon MHC expressed in the Appraisal as most recently updated, remains in effect.
(j) At or prior to the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon advise the Agent with respect to the issuance and sale of the Securities and the Foundation Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Exchange Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either any of the NYSE MKT, the New York Stock Exchange or Exchange, the Nasdaq Stock Market or the OTC Pink Marketplace shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either any of said Exchanges exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by Federal, Massachusetts either Federal or New York Wisconsin authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, Statement shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, Prospectus shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the FRBCommission or the OTS, and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇ Lovells US ▇▇▇▇▇▇ Aguggia LLP, counsel for the Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, as set forth on in Exhibit A hereto.A.
(2) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇ ▇▇▇▇▇▇ Procter LLP▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., counsel for the Agent, with respect to such the matters as the Agent may reasonably require.set forth in Exhibit B.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇▇▇▇▇▇ Lovells US ▇▇▇▇▇▇ & Aguggia LLP and ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Procter LLP & ▇▇▇▇▇▇, P.C. shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter LLP 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, and ▇▇▇▇▇▇▇ Procter LLP may also rely on the opinion of ▇▇▇▇▇ Lovells US LLP.
(c) At the Closing Time referred to in Section 2, the Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion Reorganization and the Offerings in accordance with the Plan, the applicable Conversion OTS Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Reorganization and the Offerings imposed upon the Company Company, the MHC or the Bank by the FRBOTS, or any other regulatory authority other than those which the FRB or the Division OTS permits to be completed after the ConversionReorganization and the Offerings.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC MHC, the Bank and the BankSubsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC and of the Bank and the Chief Financial Officer chief financial or chief accounting officer of the Company, of the MHC, MHC and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the MHC or the Bank, as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, practice (iii) neither the Company Company, the MHC nor the Bank shall have received from the FRB OTS any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC or the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC and the Bank has have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission, and (vii) no order suspending the Subscription and Community Offering or the Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or, to their knowledge, or threatened by the FRB OTS and no person has sought to obtain regulatory or judicial review of the action of the Division OTS in approving the Plan in accordance with the OTS Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB OTS in approving the Holding Company ApplicationPlan.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer and President of the Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus fairly present the financial condition and results of operations of the MHC Bank and the subsidiaries Subsidiaries as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus.
(f) At the time of the execution of this Agreement, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C., P.C. a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the Company, the MHC, the Company Bank and the Bank Subsidiaries within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the OTS Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC Company included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and Act, the Securities Act Regulations and the OTS Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC and the Bank Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings net worth of the MHC and the BankCompany, in each case as compared with the amounts shown in the consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from [ ]June 30, 2014 2007 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCCompany, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the MHC and the Bank identified in such letter.
(g) At the Closing Time, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(h) At the Closing Time, the Securities shall have been approved for trading quotation on the Nasdaq Capital Market OTC Bulletin Board upon notice of issuance.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, Massachusetts New Hampshire or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the Mid-Tier Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and the issuance of the Exchange Shares and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the Mid-Tier Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the Commission, ; no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the FRB, Commission or the Federal Reserve Board and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇▇▇▇ Lovells US ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, the Mid-Tier Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on Agent as attached hereto as Exhibit A hereto.A.
(2) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇ ▇▇▇▇▇▇ Procter LLP▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., counsel for the Agent, with respect to such matters as the Agent may reasonably require.attached hereto as Exhibit B.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇▇▇▇▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇▇ Procter & ▇▇▇▇▇▇▇▇ LLP and ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at Closing Time, or (if applicable) that the Closing General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter LLP 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, and ▇▇▇▇▇▇▇ Procter LLP may also rely on the opinion of ▇▇▇▇▇ Lovells US LLP.
(c) At the Closing Time referred to in Section 22 hereof, the Company, the Mid-Tier Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Federal Reserve Board Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company Company, the Mid-Tier Company, the MHC or the Bank by the FRBFederal Reserve Board, or any other regulatory authority other than those which the FRB or the Division Federal Reserve Board permits to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the Mid-Tier Company, the MHC and the Bank, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the Mid-Tier Company, of the MHC and of the Bank and the Chief Financial Officer chief financial or chief accounting officer of the Company, of the MHCMid-Tier Company, of the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the Mid-Tier Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the Mid-Tier Company, the MHC or the Bank, as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, practice (iii) neither the Company Company, the Mid-Tier Company, the MHC nor the Bank shall have received from the FRB Federal Reserve Board, the OCC or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the Mid-Tier Company, the MHC or the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the Mid-Tier Company, the MHC and the Bank has have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission, Commission and (vii) no order suspending the Subscription and Community Offering Federal Reserve Board’s approval of the Conversion Application, or the Syndicated Community Offering or the authorization for final use of the Prospectus transactions contemplated thereby, has been issued and no proceedings for that purpose have been initiated or, to their knowledge, or threatened by the FRB Federal Reserve Board and no person has sought to obtain regulatory or judicial review of the action of the Division Federal Reserve Board in approving the Plan in accordance with the Federal Reserve Board Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB Federal Reserve Board in approving the Holding Company Conversion Application.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer and President of the Mid-Tier Company, of the MHC Company and of the Bank and the Chief Financial Officer of the Mid-Tier Company, of the MHC Company and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus fairly present the financial condition and results of operations of the MHC Mid-Tier Company and the subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus.
(f) At the time As of the execution of this Agreementdate hereof, the Agent shall have received from S.R. ▇▇▇▇▇▇▇▇▇, ▇.▇▇▇▇▇▇ & Company, P.C., . a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHCCompany, the Company Mid-Tier Company, the MHC and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the Federal Reserve Board Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and S.R. ▇▇▇▇▇▇▇▇▇, ▇.▇▇▇▇▇▇ & Company, P.C. . set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC Mid-Tier Company included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and Act, the Securities Act Regulations and the Federal Reserve Board Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” or under “Recent Developments” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-long term or short-short term debt of the MHC and the Bank Mid-Tier Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings net worth of the MHC and the BankMid- Tier Company, in each case as compared with the amounts shown in the March 31, 2012 consolidated statements of financial conditions balance sheets included in the Registration Statement or, (D) during the period from [ ]March 31, 2014 2012 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCMid-Tier Company, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the Mid-Tier Company, the MHC and the Bank identified in such letter.
(g) At the Closing Time, the Agent shall have received from S.R. ▇▇▇▇▇▇▇▇▇, ▇.▇▇▇▇▇▇ & Company, P.C. . a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(h) At the Closing Time, the Securities and Exchange Shares shall have been approved for trading quotation on the Nasdaq Capital Market OTC Bulletin Board upon notice of issuance.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Exchange Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, Massachusetts Pennsylvania or New York authorities.
(l) The “lock-up” agreements, each substantially in the form of Exhibit C hereto, between the Agent and the persons set forth on Exhibit D hereto, relating to sales and certain other dispositions of shares of Common Stock or certain other securities, shall be delivered to the Agent on or before the date hereof and shall be in full force and effect at the Closing Time.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the Mid-Tier Company, the MHC, the Bank and the Agent Agents agree that the issuance and the sale of Securities and all obligations of the Agent Agents hereunder are subject to the accuracy of the representations and warranties of the Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the Mid-Tier Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, Statement shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, Prospectus shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the FRB, Commission or the OTS and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent Agents shall have received:
(1) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇▇▇▇ Lovells US ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, the Mid-Tier Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on Agents as attached hereto as Exhibit A hereto.A.
(2) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇ Procter Lovells US LLP, counsel for the AgentAgents, with respect to addressing such matters as the Agent Agents may reasonably requirerequest.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇▇▇▇▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇▇ Procter & ▇▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇ Lovells US LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at the Closing Time, or that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter LLP 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, and ▇▇▇▇▇▇▇ Procter LLP may also rely on the opinion of ▇▇▇▇▇ Lovells US LLP.
(c) At the Closing Time referred to in Section 2Time, the Company, the Mid-Tier Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion OTS Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company Company, the Mid-Tier Company, the MHC or the Bank by the FRB, OTS or any other regulatory authority authority, other than those which the FRB or the Division OTS permits to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in Material Adverse Effect.
(e) At the financial condition, results of operations, business affairs or prospects of the CompanyClosing Time, the MHC and the Bank, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent Agents shall have received a certificate of the President and Chief Executive Officer of the Company, of the Mid-Tier Company, of the MHC and of the Bank and the Chief Financial Officer chief financial or chief accounting officer of the Company, of the MHCMid-Tier Company, of the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse changeMaterial Adverse Effect since the date hereof or since the respective dates as of which information is given in the Registration Statement and the Prospectus, (ii) there shall have been no material transaction entered into by the Company, the Mid-Tier Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the Mid-Tier Company, the MHC or the Bank, as Bank has been set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither none of the Company nor Company, the Mid-Tier Company, the MHC or the Bank shall have received from the FRB OTS any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the AgentAgents) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC or the Bankhave a Material Adverse Effect, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the Mid-Tier Company, the MHC and the Bank has have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the CommissionCommission or any other governmental body, and (vii) no order suspending any material aspect of the Subscription and Community Offering Conversion or the Syndicated Community Offering contribution to the Foundation or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or, to their knowledge, or threatened by the FRB OTS and no person has sought to obtain regulatory or judicial review of the action of the Division OTS in approving the Plan in accordance with the OTS Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB OTS in approving the Holding Company ApplicationConversion Application and (viii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forth and (ix) the conditions set forth in this Section 5 have been satisfied.
(ef) At the Closing Time, the Agent Agents shall have received a certificate of the President and Chief Executive Officer and President of the Mid-Tier Company, of the MHC Company and of the Bank and the Chief Financial Officer of the Mid-Tier Company, of the MHC Company and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement Statement, the Prospectus, any Issuer-Represented Free-Writing Prospectus and the General Disclosure Package, including the ProspectusMembers’ Proxy Statement; (ii) based on each of their knowledge, the Registration Statement Statement, the Prospectus, any Issuer-Represented Free-Writing Prospectus and the General Disclosure Package, including the ProspectusMembers’ Proxy Statement, do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement Statement, the Prospectus, any Issuer-Represented Free-Writing Prospectus and the General Disclosure Package, including the ProspectusMembers’ Proxy Statement, fairly present the financial condition and results of operations of the MHC Mid-Tier Company and the subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus.
(fg) At the time As of the execution of this Agreementdate hereof, the Agent Agents shall have received from ▇▇▇McGladrey & ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C., LLP a letter dated such date, in form and substance satisfactory to the AgentAgents, to the effect that: (i) they are independent public accountants with respect to the MHCCompany, the Company Mid-Tier Company, the MHC and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the OTS Regulations, they are registered with the PCAOB, PCAOB and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent Agents and ▇▇▇McGladrey & ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. LLP set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and Act, the Securities Act Regulations and the OTS Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC and the Bank or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings net worth of the MHC and the BankMHC, in each case as compared with the amounts shown in the September 30, 2010 consolidated statements of financial conditions included in the Registration Statement or, or (DB) during the period from [ ]September 30, 2014 2010 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest and dividend income, net interest income, net interest income after provision for loan losses, losses before provision for income before income tax expense taxes or net income of the MHC, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which that are specified by the AgentAgents, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the Mid-Tier Company, the MHC and the Bank identified in such letter.
(gh) At the Closing Time, the Agent Agents shall have received from ▇▇▇McGladrey & ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. LLP a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(hi) At the Closing Time, the Securities shall have been approved for trading quotation on the Nasdaq Capital Global Market upon notice of issuance.
(ij) At the Closing Time, the Agent Agents shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(jk) At the Closing Time, counsel for the Agent Agents shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent Agents and counsel for the AgentAgents.
(kl) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the AgentAgents, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, Massachusetts Virginia or New York authorities.
(m) The Securities shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agents shall have reasonably requested and as agreed to by the Company, the MHC, the Mid-Tier Company and the Bank.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, Statement shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the Commission, no order suspending the Offerings or the authorization for final use effectiveness of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, Prospectus shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the FRBCommission or the OTS, and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinionwritten opinion contained in Exhibit 1 hereof, dated as of the Closing Time, of M▇▇▇▇▇▇ Lovells US ▇▇▇▇▇▇ & A▇▇▇▇▇▇ LLP, special counsel for the Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on Exhibit A hereto.
(2) The favorable opinionopinion contained in Exhibit 2 hereof, dated as of the Closing Time, of M▇▇▇▇▇▇ Spidi & F▇▇▇▇, PC, counsel for the FMS Parties, in form and substance satisfactory to the Agent.
(3) The favorable opinion contained in Exhibit 3 hereof, dated as of Closing Time, of L▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Procter LLP& S▇▇▇▇▇, PC, counsel for the Agent, with respect in form and substance satisfactory to such matters as the Agent may reasonably requireAgent.
(34) In addition to giving their opinions required by subsections (b)(l) and (b)(2b)(3), respectively, of this Section, M▇▇▇▇▇▇ Lovells US ▇▇▇▇▇▇ & Aguggia LLP and L▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Procter LLP & S▇▇▇▇▇, P.C. shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at the Closing Time, or that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, M▇▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇ & Aguggia LLP, L▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Procter LLP & S▇▇▇▇▇, P.C. and M▇▇▇▇▇▇ Spidi and F▇▇▇▇, PC may rely as to matters of fact on certificates of officers and directors of the Company, the MHC MHC, the Bank and the Bank Subsidiaries, or the FMS Parties, as applicable, and certificates of public officials, and L▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Procter LLP & S▇▇▇▇▇, P.C. may also rely on the opinion of M▇▇▇▇▇▇ Lovells US LLP▇▇▇▇▇▇ & Aguggia LLP with respect to matters set forth in paragraphs (i), (ii), (iii), (vi), (vii), (xviii) and (xix) therein.
(c) At the Closing Time referred to in Section 2, the Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion Offerings in accordance with the Plan, the applicable Conversion OTS Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Offerings imposed upon the Company Company, the MHC or the Bank by the FRBOTS, or any other regulatory authority other than those which the FRB or the Division OTS permits to be completed after the ConversionOfferings.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC MHC, the Bank and the BankSubsidiaries, considered as one enterprise, or the FMS Parties, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC and of the Bank and the Chief Financial or Chief Accounting Officer of the Company, of the MHC, MHC and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the MHC MHC, the Bank or the Bank FMS Parties from the latest date as of which the financial condition of the Company, the MHC or the Bank, as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, practice (iii) neither the Company Company, the MHC, the Bank nor the Bank FMS Parties shall have received from the FRB OTS, the Department of Banking or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC or the Bank, considered as one enterprise, or the FMS Parties, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC and the Bank has complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or or, to the best of their knowledge after inquiry, threatened by the Commission, and (vii) no order suspending the Subscription and Community Offering or the Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or, to the best of their knowledge, threatened by the FRB OTS and no person has sought to obtain regulatory or judicial review of the action of the Division OTS in approving the Plan nor has any person sought to obtain regulatory or judicial review of in accordance with the action of the FRB in approving the Holding Company ApplicationOTS Regulations.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer and President of the Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus fairly present the financial condition and results of operations of the MHC Company and any subsidiary, and the subsidiaries FMS Parties, as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus.
(f1) At the time of the execution of this Agreement, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Deloitte & Company, P.C., Touche LLP a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the Company, the MHC, the Company Bank and the Bank Subsidiaries within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the OTS Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇S▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Deloitte & Company, P.C. Touche LLP set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC Company included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and Act, the Securities Act Regulations and the OTS Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other DataData of Beneficial Mutual Bancorp” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC and the Bank Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings stockholders’ equity of the MHC and the BankCompany, in each case as compared with the amounts shown in the consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from [ ]December 31, 2014 2006 to a specified date not more than five (5) days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCCompany, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the MHC and the Bank identified in such letter.
(g2) At the Closing Timetime of the execution of this Agreement, the Agent shall have received from G▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to FMS, FM Bank and the FMS Subsidiaries within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the OTS Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the S▇▇, ▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and G▇▇▇▇ ▇▇▇▇▇▇▇▇ & Company, P.C. a LLP set forth in detail in such letter, dated nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of FMS included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations and the OTS Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data of FMS Financial” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the Closing Time, to dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the effect that they reaffirm the statements made corresponding amounts in the letter furnished pursuant to subsection audited financial statements included in the Registration Statement, (fC) of this Section, except that the at a specified date referred to shall be a date not more than five (5) days prior to the Closing Timedate of this Agreement, there has been any increase in the long-term or short-term debt of FMS or any decrease in consolidated total assets, the allowance for loan losses, total deposits or stockholders’ equity of FMS, in each case as compared with the amounts shown in the consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from December 31, 2006 to a specified date not more than five (5) days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of FMS, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and Prospectus and which are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of FMS and FM Bank widentified in such letter.
(h3) At the Closing Time, time of the Securities shall have been approved for trading on the Nasdaq Capital Market upon notice execution of issuance.
(i) At the Closing Timethis Agreement, the Agent shall have received from PricewaterhouseCoopers LLP a letter from the Appraiserdated such date, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to FMS, FM Bank and the FMS Subsidiaries within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the OTS Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the S▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by Federal, Massachusetts or New York authorities.PricewaterhouseCoopers L
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC Company and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC Company and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC Company and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, Statement shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, Prospectus shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the FRB, OTS and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇▇▇▇ Lovells US LLP▇▇▇▇▇▇▇▇, counsel for the Company, the MHC Company and the Bank, in form and substance satisfactory to counsel for the Agent, to the effect set forth on Exhibit A hereto.in Appendix A.
(2) The favorable opinion, dated as of the Closing Time, of Elias, Matz, ▇▇▇▇▇▇▇ Procter LLP& ▇▇▇▇▇▇▇ L.L.P. (“▇▇▇▇▇ ▇▇▇▇”), counsel for the Agent, with respect to the matters set forth in clauses (i), (ii), (v), (vii), (viii) (solely as to preemptive rights arising by operation of law), (xv), (xvi) and (xviii) of Appendix A and such other matters as the Agent may reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇▇▇▇▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇▇ Procter LLP and ▇▇▇▇▇ ▇▇▇▇ shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statementsstatements and schedules, notes to financial statements, stock valuation information and schedules and other financial or statistical data included thereintherein or omitted therefrom, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statementsstatements and schedules, notes to financial statements, stock valuation information and schedules and other financial or statistical data included thereintherein or omitted therefrom, as to which counsel need make no statement), at the time the Registration Statement became effective or at the Closing Time, or that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. To the extent not inconsistent with the assumptions, qualifications and limitations which shall be set forth in the opinion, the opinions of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇ will be governed by, and shall be interpreted in accordance with, the Legal Opinion Accord (the “Accord”) of the American Bar Association Section of Business Law (1991). The clause “to counsel’s knowledge,” “to such counsel’s actual knowledge” or similar terms used in said opinion shall have the meaning set forth in the Accord for the term “Actual Knowledge.” In giving their opinions, ▇▇▇▇▇▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇▇ Procter LLP and ▇▇▇▇▇ ▇▇▇▇ may rely as to matters of fact on certificates of officers and directors of the Company, the MHC Company and the Bank and certificates of public officials, and ▇▇▇▇▇ ▇▇▇▇ Procter LLP may also rely on the opinion of ▇▇▇▇▇▇▇▇▇▇ Lovells US LLP▇▇▇▇▇▇▇▇.
(c) At the Closing Time referred to in Section 2, the Company, the MHC Company and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company or the Bank by the FRBOTS, or any other regulatory authority other than those which the FRB or the Division OTS permits to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change Material Adverse Change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC Bank and the Bank, Subsidiary considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and President, Chief Executive Officer of the Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC, Company and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse changeMaterial Adverse Change, (ii) there shall have been no material transaction entered into by the Company, the MHC Bank or the Bank Subsidiary from the latest date as of which the financial condition of the Company, the MHC Company or the Bank, Bank as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither the Company nor the Bank shall have received from the FRB OTS or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the businessbusiness affairs, financial condition, results of operations or prospects of the Company, the MHC Company or the Bank, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC Company and the Bank has complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission, Commission and (vii) no order suspending the Subscription and Community Offering or the Syndicated Community Offering Offerings or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or, to their knowledge, or threatened by the FRB OTS and no person has sought to obtain regulatory or judicial review of the action of the Division OTS in approving the Plan in accordance with the Conversion Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB OTS in approving the Holding Company Application.
(e) At the Closing Time, the Agent shall have received a certificate of the President and President, Chief Executive Officer of the Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC Company and of the Bank, dated as of the Closing Time, to the effect that (i) they have he has reviewed the contents of the Registration Statement and the Prospectus and the General Disclosure Package, including the Prospectus; (ii) based on their his knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on their his knowledge, the financial statements and other financial information included in the Registration Statement and the Prospectus and the General Disclosure Package, including the Prospectus, Package fairly present the financial condition and results of operations of the MHC and the subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the General Disclosure PackageProspectus; (iv) he is responsible for establishing and maintaining internal controls; (v) he has designed such internal controls to ensure that material information relating to the Company and the Bank is made known to them; (vi) he has evaluated the effectiveness of their internal controls; and (vii) he has disclosed to ▇▇▇▇▇▇ & Company, including LLP and the Prospectusaudit committee (A) all significant deficiencies in the design or operation of internal controls which could adversely affect the Company’s and the Bank’s ability to record, process, summarize, and report financial data, and have identified for the Company’s and the Bank’s auditors any material weaknesses in internal controls and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s and the Bank’s internal controls.
(f) At the time of the execution of this Agreement, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C., LLP a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: that (i) they are independent public accountants with respect to the MHC, the Company and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public Accountants, the Securities Act and Act, the Securities Act Regulations, and the Conversion Regulations and they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions opinion therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. LLP set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC Bank included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and Act, the Securities Act Regulations and the Conversion Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” or under “Recent Developments” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions caption or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC and the Bank or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings of the MHC and the Bank, in each case as compared with the amounts shown in the consolidated statements of financial conditions balance sheet included in the Registration Statement or, (D) during the period from [ ]June 30, 2014 2010 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCBank, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and the General Disclosure Package, including the Prospectus Prospectus, and which are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the MHC Company and the Bank identified in such letter.
(g) At the Closing Time, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. LLP a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five days prior to the Closing Time.
(h) At the Closing Time, the Securities shall have been approved for trading on the Nasdaq Capital Market OTC Bulletin Board upon notice of issuance, provided that the Agent has timely filed the application for such trading.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by Federal, Massachusetts or New York or Maryland authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the MHC, the Bank Primary Parties and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC and the Bank Primary Parties herein contained as of the date hereof and the Closing Time, to the accuracy in of the statements of the officers and directors of the MHC, Company, the MHC Mid-Tier and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC and the Bank Primary Parties of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, ; no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, or the FRB, ; and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) The Company and the MHC have received written notice from the FRB of its approval of (i) the Holding Company Application and (ii) the FRB Application and such approval remains in full force and effect. No order has been issued by the FRB suspending or revoking such approval and no proceedings therefor have been initiated or, to the knowledge of the Primary Parties, threatened by the FRB.
(c) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of L▇▇▇ ▇▇▇▇▇ Lovells US LLP▇▇, PC, counsel for the Company, the MHC and the BankPrimary Parties, in form and substance satisfactory to counsel for the Agent, set forth on as attached hereto as Exhibit A hereto.B.
(2) The favorable opinion, dated as of the Closing Time, of G▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Procter ▇, LLP, counsel for the Agent, with respect as to such matters as the Agent may reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, L▇▇▇ ▇▇▇▇▇ Lovells US LLP ▇▇, PC and ▇G▇▇▇▇▇▇ Procter LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial financial, pro forma, appraisal or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial financial, pro forma, appraisal or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective effective, as of the date of the Prospectus or at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, L▇▇▇ ▇▇▇▇▇ Lovells US LLP ▇▇, PC and ▇G▇▇▇▇▇▇ Procter LLP may rely as to matters of fact on certificates of officers and directors of the Company, the MHC and the Bank Primary Parties and certificates of public officials, and ▇. G▇▇▇▇▇▇ Procter LLP may also rely on the opinion of L▇▇▇ ▇▇▇▇▇ Lovells US LLP▇▇, PC.
(cd) At the Closing Time referred to in Section 22 hereof, the Company, the MHC and the Bank Primary Parties shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations FRB Regulations, Massachusetts Banking Law and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company Company, the Mid-Tier, the MHC or the Bank by the FRB, the Division or any other regulatory authority other than those which the FRB or FRB, the Division permits or any such other regulatory authority permit to be completed after the Conversion.
(de) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC and the Bank, considered as one enterpriseMaterial Adverse Effect, whether or not arising in the ordinary course of business consistent with past practicebusiness, and the Agent shall have received a certificate of the President and Chief Executive Officer of the CompanyMHC, of the MHC Mid-Tier, the Company and of the Bank and the Chief Financial Officer of the Company, of the MHC, the Mid-Tier, the Company and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse changeMaterial Adverse Effect, (ii) there shall have has been no material transaction entered into by the CompanyMHC, the MHC Mid-Tier, the Company or the Bank from the latest date as of which the financial condition of the MHC, the Company, the MHC Mid-Tier or the Bank, as set forth in the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package other than transactions referred to or contemplated therein and transactions in the ordinary course of business substantially consistent with past practice, (iii) neither none of the Company nor the Bank Primary Parties shall have received from the FRB FRB, the Division or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which that would materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC or MHC, the Mid-Tier and the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC and the Bank has Primary Parties shall have complied with all agreements and satisfied all conditions in all material respects on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the Knowledge of the Company, the MHC, the Mid-Tier or the Bank, threatened by the Commission, and (vii) no order suspending the Subscription FRB’s approval of the Holding Company Application and Community Offering the FRB Application or the Syndicated Community Offering transactions contemplated thereby or the authorization for final use Division’s approval of the Prospectus Massachusetts Application or the transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to their knowledgethe knowledge of the Company, the MHC, the Mid-Tier or the Bank, threatened by the FRB or the Division and no person has sought to obtain regulatory or judicial review of the action of the FRB or the Division in approving the Plan in accordance with the FRB Regulations and Massachusetts Banking Law nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Holding Company Application and the FRB Application or the Division approving the Massachusetts Application, and (viii) no order suspending the Subscription and Community Offering, or the Syndicated Community Offering or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the FRB or the Division.
(ef) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of the CompanyMHC, of the MHC Mid-Tier, the Company and of the Bank and the Chief Financial Officer of the CompanyMHC, of the MHC Mid-Tier, the Company and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement Statement, the Prospectus, the Information Statement, the and the General Disclosure Package, including the Prospectus, Package fairly present the financial condition and results of operations of the MHC and the subsidiaries Company as of and for the dates and periods covered by the Registration Statement and the General Disclosure PackageProspectus; (iv) they are responsible for establishing and maintaining disclosure controls and procedures; (v) they have designed such disclosure controls and procedures to ensure that material information relating to the Company, including the ProspectusMHC, the Mid-Tier and the Bank is made known to them; (vi) they have evaluated the effectiveness of their disclosure controls and procedures; and (vii) they have disclosed to E▇▇▇▇▇▇ ▇▇▇▇▇, LLC and the audit committee (A) all significant deficiencies in the design or operation of disclosure controls and procedures that are reasonably likely to adversely affect the Mid-Tier’s ability to record, process, summarize, and report financial data, and have identified for the Mid-Tier’s and the Bank’s independent registered public accounting firm any material weaknesses in disclosure controls and procedures and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s, the MHC’s, the Mid-Tier’s and the Bank’s disclosure controls and procedures.
(fg) At the time As of the execution of this Agreementdate hereof, the Agent shall have received from E▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C., LLC a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHC, the Mid-Tier, the Company and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the FRB Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇S▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and E▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. LLC set forth in detail in such letter, nothing has come to their attention which that causes them to believe that that, except as set forth in such letter, (A) the unaudited consolidated financial statements and supporting schedules of the MHC included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” or under “Recent Developments” in the Registration Statement Prospectus and Prospectus the General Disclosure Package do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited consolidated financial statements included in the Registration Statement, the Prospectus and the General Disclosure Package, (CB) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC and the Bank Primary Parties or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings total stockholders’ equity of the MHC and the BankMHC, in each case as compared with the amounts shown in the December 31, 2022 audited consolidated statements of financial conditions included condition presented in the Registration Statement or, (DC) during the period from [ ]December 31, 2014 2022 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in consolidated total interest and dividend income, net interest income, net interest income after provision for loan losses, income before provision for income tax expense taxes or net income of the MHC, except in all instances for increases or decreases which the Registration Statement Statement, the Prospectus and the General Disclosure Package, including the Prospectus, Package disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions opinion and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement Statement, Prospectus and the General Disclosure Package, including the Prospectus Package and which that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the MHC Company and the Bank identified in such letter.
(gh) At the Closing Time, the Agent shall have received from E▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. LLC a letter, letter dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five three (3) business days prior to the Closing Time.
(h) At the Closing Time, the Securities shall have been approved for trading on the Nasdaq Capital Market upon notice of issuance.
(i) At the Closing Time, the Agent Securities and the Foundation Shares shall have been approved for listing on the Nasdaq Stock Market.
(j) At the Closing Time, the Company and the Bank shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(jk) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(kl) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either any of the NYSE MKT, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either any of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by Federal, Massachusetts either Federal or New York authorities.
Appears in 1 contract
Sources: Agency Agreement (NB Bancorp, Inc.)
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent --------------------------------- Agents to act and continue to act as Agents hereunder are shall be subject to the accuracy of the representations and warranties made herein on the part of the Company, the MHC and the Bank herein contained as of Company at the date hereof of this agreement and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC and the Bank made pursuant to the provisions hereofany Settlement Date, to the performance by the Company, the MHC and the Bank Company of their its obligations to be performed hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration StatementStatement shall be in effect, including any post-effective amendment theretoand no proceedings for that purpose shall be pending before, or threatened by, the Commission; and the Agents shall have been issued under received a certificate, dated the Securities Act date of this agreement and signed by an officer of the Company, to the effect that no such stop order is in effect and that no proceedings for such purpose are pending before, or proceedings therefor initiated or, to the knowledge of the CompanyCompany threatened by, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, threatened by the FRB, and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, date of this agreement the Agent Agents shall have received:
(1) The favorable opinionreceived from Worsham, dated as of the Closing TimeForsythe & Wooldridge, L.L.P., general counsel fo▇ ▇▇▇ ▇ompa▇▇, ▇▇▇▇ & Priest LLP, of counsel to the Company, and Winthrop, Stimson, Putnam & Roberts, Counsel for the Agents, op▇▇▇▇▇▇ Lovells US LLP, counsel for the Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on Exhibit A hereto.
(2) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇ Procter LLP▇tially the form and substance prescribed in Schedules I, counsel II and III hereto (i) with such changes therein as may be agreed upon by the Company and the Agents, with the approval of Counsel for the AgentAgents, and (ii) if the Prospectus relating to the Securities shall be supplemented or amended after the Prospectus shall have been filed with, or transmitted for filing to, the Commission pursuant to Rule 424 of the General Rules and Regulations under the Securities Act (Rule 424), with respect changes therein to reflect such matters as the Agent may reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information and schedules and other financial supplementation or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter LLP 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, and ▇▇▇▇▇▇▇ Procter LLP may also rely on the opinion of ▇▇▇▇▇ Lovells US LLPamendment.
(c) At the Closing Time referred to in Section 2date of this agreement, the Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company or the Bank by the FRB, or any other regulatory authority other than those which the FRB or the Division permits to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC and the Bank, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC, and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the MHC or the Bank, as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither the Company nor the Bank Agents shall have received from the FRB any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC or the Bank, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC and the Bank has complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission, and (vii) no order suspending the Subscription and Community Offering or the Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or, to their knowledge, threatened by the FRB and no person has sought to obtain regulatory or judicial review of the action of the Division in approving the Plan nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Holding Company Application.
(e) At the Closing Time, the Agent shall have received Deloitte & Touche LLP a certificate of the President and Chief Executive Officer of the Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC and of the Bank, dated as of the Closing Time, letter to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, fairly present the financial condition and results of operations of the MHC and the subsidiaries as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus.
(f) At the time of the execution of this Agreement, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C., a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent certified public accountants with respect to the MHCCompany, the Company and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public Accountants, the Securities Act and the Securities Act Regulationsapplicable published rules and regulations thereunder, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is in their opinion that opinion, the consolidated financial statements audited by them and supporting schedules included or incorporated by reference in the Registration Statement and covered by their opinions therein Prospectus comply as to form in all material respects with the applicable accounting requirements of the Securities Exchange Act and the Securities Act Regulations; published rules and regulations thereunder, (iii) based upon limited procedures as agreed upon on the basis of a reading of the unaudited amounts of operating revenues and net income included or incorporated by reference in the Agent Prospectus and ▇▇▇▇▇▇▇▇▇the related financial statements from which these amounts were derived, ▇▇▇▇▇▇▇ & the latest available unaudited financial statements of the Company, P.C. set forth the minute books of the Company, and inquiries of officers of the Company who have responsibility for financial and accounting matters (it being understood that the foregoing procedures do not constitute an audit made in detail accordance with generally accepted auditing standards and they would not necessarily reveal matters of significance with respect to the comments made in such letter, and accordingly that Deloitte & Touche LLP makes no representation as to the sufficiency of such procedures for the Agents' purposes), nothing has come to their attention which causes caused them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC included incorporated by reference in the Registration Statement and the General Disclosure Package, including the Prospectus, do Prospectus were not comply as to form determined in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations or are not presented in conformity accordance with generally accepted accounting principles prin- ciples applied on a basis substantially consistent with that of the audited consolidated financial statements included corresponding amounts in the Registration Statement and the General Disclosure Package, including the Prospectuslatest available audited financial statements, (B) the unaudited amounts of net interest income operating revenues and net income set forth under “Selected Consolidated Financial and Other Data” of the Company included or incorporated by reference in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining of the corresponding amounts in the audited financial statements included of income incorporated by reference in the Registration StatementProspectus, (C) for the twelve months ended as of the date of the latest available financial statements of the Company, there were any decreases in operating revenues or net income as compared with the comparable period of the preceding year, and (D) at a specified date not more than five days prior to the date of this Agreementsuch letter, there has been was any increase change in the consolidated longcapital stock of the Company, short-term bank loans, commercial paper, notes payable to Texas Utilities Company or shortlong-term debt of the MHC and the Bank Company or any decrease in consolidated total its net assets, the allowance for loan losses, total deposits or retained earnings of the MHC and the Bank, in each case as compared with the amounts shown in the consolidated statements of financial conditions included most recent balance sheet incorporated by reference in the Registration Statement or, (D) during the period from [ ], 2014 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCProspectus, except in all instances for increases changes or decreases which that the Registration Statement and the General Disclosure Package, including the Prospectus, disclose Prospectus discloses have occurred or may occur; , or which are occasioned by the declaration of a regular quarterly dividend or the acquisition of long-term debt for sinking fund purposes, or which are described in such letter, and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain compared the dollar amounts (or percentages or ratios derived from such dollar amounts, percentages ) and other financial information which are included or incorporated by reference in the Registration Statement and the General Disclosure Package, including the Prospectus and which are specified as reasonably re- quested by the AgentAgents (in each case to the extent that such dollar amounts, percentages and other financial information are derived from the general accounting records of the Company subject to the internal controls of the Company's accounting system or are derived indirectly from such records by analysis or computation) with the results obtained from inquiries, a reading of such general accounting records and other procedures specified in such letter, and have found such dollar amounts, percentages and other financial information to be in agreement with the relevant accountingsuch results, financial and other records of the MHC and the Bank identified except as otherwise specified in such letter.
(gd) At Since the Closing Timemost recent dates as of which information is given in the Registration Statement or the Prospectus there shall not have been any material adverse change in the business, property or financial condition of the Agent Company and, since such dates, there shall not have been any material transaction entered into by the Company, in each case other than transactions in the ordinary course of business or transactions contemplated by the Registration Statement or Prospectus and at the date of this agreement the Agents shall have received a certificate to such effect, signed by an officer of the Company.
(e) On and as of each Settlement Date, the Agents shall have received (i) from Worsham, Forsythe & Wooldridge, L.L.P. their opinion ▇▇▇▇ir▇▇▇▇ ▇▇, ▇▇ m▇▇▇▇▇▇ & Company▇▇▇ forth in paragraph 5 of Schedule I hereto, P.C. and (ii) a letter, dated as certificate of an officer of the Closing Time, Company to the effect that they reaffirm the statements made resolutions of the Company's Board of Directors adopted at a meeting held June 14, 1995 are still in the letter furnished pursuant to subsection full force and effect and have not been altered, amended or rescinded or certifying any amendments or alterations thereto or any resolutions superseding such prior resolutions.
(f) of this Section, except that the specified date referred All legal proceedings to shall be a date not more than five days prior to the Closing Time.
(h) At the Closing Time, the Securities shall have been approved for trading on the Nasdaq Capital Market upon notice of issuance.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be have been satisfactory in form and substance to the Agent and counsel Counsel for the Agent.
(k) At Agents. In case any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the New York Stock Exchange or the Nasdaq Stock Market conditions specified above in this Section 7 shall not have been suspendedfulfilled, and minimum or maximum prices for trading the Agents shall not have been fixedno further obligation to proceed with any offering, sale, or maximum ranges for prices for securities have been requiredany solicitation of purchase, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by Federal, Massachusetts or New York authoritiesSecurities.
Appears in 1 contract
Sources: Distribution Agreement (Texas Utilities Electric Co)
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, Statement shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the CommissionSEC, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, Prospectus shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the FRB, OTS and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇ ▇▇▇▇▇▇ Lovells US LLP▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. counsel for the Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on Exhibit A heretoto the effect that:
(i) The Company has been duly incorporated and is validly existing as a federal stock corporation under the laws of the United States, and the MHC has been duly incorporated and is validly existing as a federal mutual holding company under the laws of the United States.
(2ii) The favorable opinion, dated as Each of the Closing TimeCompany and the MHC has full corporate power and authority to own, of ▇▇▇▇▇▇▇ Procter LLP, counsel for lease and operate its properties and to conduct its business as described in the Agent, with respect Registration Statement and Prospectus and to such matters as the Agent may reasonably requireenter into and perform its obligations under this Agreement.
(3iii) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as Upon completion of the Applicable TimeReorganization, contained an untrue statement each of the Company and the MHC will be duly qualified as a foreign corporation to transact business and is in good standing in the State of New York and in each other jurisdiction in which such qualification is required whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material fact adverse effect upon the financial condition, results of operations or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter LLP may rely as to matters of fact on certificates of officers and directors business affairs of the Company, the MHC and MHC, the Bank and certificates of public officialsthe Bank's subsidiaries, and ▇▇▇▇▇▇▇ Procter LLP may also rely on the opinion of ▇▇▇▇▇ Lovells US LLPconsidered as one enterprise.
(civ) At Upon consummation of the Reorganization and the issuance of Charitable Foundation Shares to the Foundation, immediately upon the completion thereof, subject to compliance with all conditions imposed upon the formation and contribution thereof by the OTS under the terms of any written notice or order of approval of the Reorganization Application, the authorized, issued and outstanding capital stock of the Company will be as set forth in the Prospectus under "Capitalization" and, no shares of Common Stock have been or will be issued and outstanding prior to the Closing Time referred to in Section 2Time.
(v) The Securities and Charitable Foundation Shares have been duly and validly authorized for issuance and sale and, when issued and delivered by the Company, the MHC and the Bank shall have completed in all material respects the conditions precedent Company pursuant to the Conversion Plan against payment of the consideration calculated as set forth in accordance with the Plan, or contributed by the applicable Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent Company pursuant to the Conversion imposed upon Plan in the Company or case of the Bank by the FRBCharitable Foundation Shares, or any other regulatory authority other than those which the FRB or the Division permits to will be completed after the Conversionduly and validly issued and fully paid and non-assessable.
(dvi) At The issuance of the Securities and Charitable Foundation Shares is not subject to preemptive or other similar rights arising by operation of law or, to the best of their knowledge and information, otherwise.
(vii) The Bank is duly organized and validly existing under the laws of the United States of America as a federally chartered savings bank of mutual form, and, at Closing Time, there shall not have beenhas become duly organized and validly existing under the laws of the United States of America as a federally chartered savings bank of stock form, since the date hereof or since the respective dates in both instances with full corporate power and authority to own, lease and operate its properties and to conduct its business as of which information is given described in the Registration Statement and the General Disclosure Package, including Prospectus; and the Prospectus, any Bank is duly qualified as a foreign corporation in each jurisdiction in which the failure to so qualify would have a material adverse change in effect upon the financial condition, results of operations, operations or business affairs of the Bank.
(viii) The Bank is a member of the Federal Home Loan Bank of New York and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(ix) Each direct and indirect subsidiary of the Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which the failure to so qualify would have a material adverse effect upon the financial condition, results of operations or prospects business of the Company, the MHC, the Bank and the Bank's subsidiaries, taken as a whole; the activities of each such subsidiary are permitted to subsidiaries of a savings association holding company and of a federally chartered savings bank by the rules, regulations, resolutions and practices of the OTS; all of the issued and outstanding capital stock of each such subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and is owned by the Bank, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity.
(x) The Foundation has been duly incorporated and is validly existing as a non-stock corporation in good standing under the laws of the State of Delaware with corporate power to own, lease and operate its properties and to conduct its business as described in the Prospectus; the Foundation is not a savings and loan holding company within the meaning of 12 C.F.R. Section 574.2(q) as a result of the issuance of shares of Common Stock to it in accordance with the terms of the Plan and in the amounts described in the Prospectus; no approvals are required to establish the Foundation and to contribute the shares of Common Stock thereto as described in the Prospectus other than those set forth in any written notice or order of approval of the Reorganization Application, copies of which were provided to the Agent prior to the Closing Time.
(xi) Upon consummation of the Reorganization, all of the issued and outstanding capital stock of the Bank when issued and delivered pursuant to the Plan against payment of consideration calculated as set forth in the Plan and set forth in the Prospectus, will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity.
(xii) The OTS has duly approved the Holding Company Application and the MHC Application and no action is pending, or threatened respecting the Holding Company Application or the MHC Application (including therewith the establishment of the Foundation and the contribution of shares of common stock thereto) or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the MHC Application comply with the applicable requirements of the OTS, includes all documents required to be filed as exhibits thereto, and is truthful, accurate and complete; the Company is duly authorized to become a savings association holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank to be issued pursuant to the Plan; and the MHC is duly authorized to become a federal mutual holding company and is duly authorized to own a majority of the issued and outstanding capital stock of the Company.
(xiii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, including the establishment of the Foundation and the contribution thereto of the Charitable Foundation Shares (A) have been duly and validly authorized by all necessary action on the part of each of the Company, the MHC and the Bank, considered as one enterpriseand this Agreement constitutes the legal, whether or not arising in the ordinary course valid and binding agreement of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC, and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the MHC or the Bank, as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither the Company nor the Bank shall have received from the FRB any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC or the Bank, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC and the Bank, enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws and the availability of equitable remedies); (B) will not result in any violation of the provisions of the charter or by-laws of the Company, the MHC, the Bank or any of the Bank's subsidiaries; and, (C) will not conflict with or constitute a breach of, or default under, and no event has complied occurred which, with all agreements notice or lapse of time or both, would constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance, that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business affairs of the Company, the MHC, the Bank and satisfied all conditions on their part the Bank's subsidiaries considered as one enterprise, upon any property or assets of the Company, the MHC, the Bank or the Bank's subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC, the Bank or the Bank's subsidiaries is a party or by which any of them may be performed bound, or satisfied at to which any of the property or prior assets of the Company, the MHC, the Bank or the Bank's subsidiaries is subject.
(xiv) The Prospectus has been duly authorized by the OTS for final use pursuant to the Closing Time, OTS Regulations and no action is pending or threatened by the OTS to revoke such authorization.
(vixv) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued and no under the Securities Act or proceedings for that purpose have been therefor initiated or threatened by the Commission, and (vii) no order suspending the Subscription and Community Offering or the Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or, to their knowledge, threatened by the FRB and no person has sought to obtain regulatory or judicial review of the action of the Division in approving the Plan nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Holding Company ApplicationSEC.
(exvi) At the Closing TimeNo further approval, the Agent shall have received a certificate authorization, consent or other order of the President and Chief Executive Officer of the Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, do not contain any untrue statement of a material fact public board or omit to state a material fact necessary body is required in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, fairly present the financial condition and results of operations of the MHC and the subsidiaries as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus.
(f) At the time of connection with the execution and delivery of this Agreement, the Agent shall have received from ▇▇▇▇▇▇▇▇▇issuance of the Securities and the consummation of the Reorganization, ▇▇▇▇▇▇▇ & Company, P.C., a letter dated such date, in form and substance satisfactory except as may be required under the securities or Blue Sky laws of various jurisdictions as to which no opinion need be rendered.
(xvii) At the Agent, to time the effect that: (i) they are independent public accountants with respect to the MHCRegistration Statement became effective, the Company and Registration Statement (other than the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public Accountants, the Securities Act and the Securities Act Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules statistical data included in the Registration Statement and covered by their opinions therein comply therein, as to which no opinion need be rendered) complied as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations and the OTS Regulations.
(xviii) The Common Stock conforms to the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xix) There are no legal or governmental proceedings pending or threatened against or affecting the Company, the MHC, the Bank, the Bank's subsidiaries, or the Foundation which are not presented required, individually or in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included aggregate, to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein, and all pending legal or governmental proceedings to which the General Disclosure PackageCompany, the MHC, the Bank or any of the Bank's subsidiaries is a party or to which any of their property is subject which are not described in the Registration Statement, including ordinary routine litigation incidental to the Prospectusbusiness, are, considered in the aggregate, not material.
(Bxx) The information in the unaudited amounts Prospectus under "Our Policy Regarding Dividends," "Business of net interest income SBU Bank - Legal Proceedings," "Regulation," "Federal and net income set forth under “Selected Consolidated State Taxation," "The Reorganization and the Offering - Effects of Reorganization," "- Liquidation Rights," and "- Federal and State Tax Consequences," "Restrictions on Acquisitions of Partners Trust Financial Group" and Other Data” "Description of Capital Stock" to the extent that it constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by them and is complete and accurate in all material respects.
(xxi) To the best of such counsel's knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Registration Statement or to be filed as exhibits thereto other than those described or referred to therein or filed as exhibits thereto, the descriptions thereof or references thereto are correct, and no default exists, and no event has occurred which, with notice or lapse of time or both, would constitute a default, in the due performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument so described, referred to or filed.
(xxii) The Plan has been duly authorized by the Boards of Directors of the Company, the MHC, the Bank and, the OTS's approval of the Plan remains in full force and effect; the Bank's charter has been amended, effective upon consummation of the Reorganization and the filing of such amended charter with the OTS, to authorize the issuance of permanent capital stock; to the best of such counsel's knowledge, the Company, the MHC and the Bank have conducted the Reorganization and the establishment and funding of the Foundation in all material respects in accordance with applicable requirements of the OTS Regulations, the Plan and all other applicable regulations, decisions and orders thereunder, including all material applicable terms, conditions, requirements and conditions precedent to the Reorganization imposed upon the Company, the MHC or the Bank by the OTS and, no order has been issued by the OTS to suspend the Reorganization or the Offerings and no action for such purpose has been instituted or threatened by the OTS; and, to the best of such counsel's knowledge, no person has sought to obtain review of the final action of the OTS in approving the MHC Application (which includes the Plan which provides for the establishment of the Foundation) or the Holding Company Application.
(xxiii) To the best of such counsel's knowledge, the Company, the MHC and the Bank and the Bank's subsidiaries have obtained all licenses, permits and other governmental authorizations currently required for the conduct of their respective businesses as described in the Registration Statement and Prospectus do not agree with Prospectus, and all such licenses, permits and other governmental authorizations are in full force and effect, and the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration StatementCompany, (C) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC and the Bank or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings of the MHC and the Bank's subsidiaries are in all material respects complying therewith.
(xxiv) Neither the Company, in each case as compared with the amounts shown in the consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from [ ], 2014 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHC, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records Bank nor any of the MHC Bank's subsidiaries is in violation of its certificate of incorporation, organization certificate, articles of incorporation or charter, as the case may be, or bylaws (and the Bank identified will not be in such letterviolation of its charter in stock form upon consummation of the Reorganization) or in default (nor has any event occurred which, with notice or lapse of time or both, would constitute a default) in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC, the Bank or any of the Bank's subsidiaries is a party or by which the Company, the MHC, the Bank or any of the Bank's subsidiaries or any of their property may be bound.
(gxxv) At The Company is not required to be registered as an investment company under the Investment Company Act of 1940.
(2) The favorable opinion, dated as of Closing Time, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, of ▇▇▇▇▇▇▇ Spidi & Company▇▇▇▇▇, P.C. a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five days prior to the Closing Time.
(h) At the Closing Time, the Securities shall have been approved for trading on the Nasdaq Capital Market upon notice of issuance.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing TimePC, counsel for the Agent shall have been furnished Agent, with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance respect to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Timematters set forth in Section 5(b)(1)(i), (iiv), (v), (vi) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is so material and adverse (solely as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, preemptive rights arising by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by Federal, Massachusetts or New York authorities.operati
Appears in 1 contract
Sources: Agency Agreement (Partners Trust Financial Group Inc)
Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, Statement shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, Prospectus shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the FRBCommission, the NCCOB, the FRB or the FDIC and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of Brooks, Pierce, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ Lovells US LLP, & ▇▇▇▇▇▇▇ L.L.P. (“▇▇▇▇▇▇ ▇▇▇▇▇▇”) counsel for the Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on Exhibit A hereto.Agent as attached hereto as Appendix A.
(2) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇▇▇▇ Procter LLP▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP (“▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇”), counsel for the Agent, with respect to addressing such matters as the Agent may reasonably requirerequest.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇▇▇▇▇ Lovells US LLP ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇ Procter LLP ▇▇▇▇▇▇▇▇ shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statementsstatements and schedules, notes to financial statements, stock valuation information and schedules and other financial or statistical data included thereintherein or omitted therefrom, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statementsstatements and schedules, notes to financial statements, stock valuation information and schedules and other financial or statistical data included thereintherein or omitted therefrom, as to which counsel need make no statement), at the time the Registration Statement became effective or at the Closing Time, or that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. To the extent not inconsistent with the assumptions, qualifications and limitations which shall be set forth in the opinion, the opinions of ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ may be governed by, and shall be interpreted in accordance with, the Legal Opinion Accord (the “Accord”) of the American Bar Association Section of Business Law (1991). The clause “to counsel’s knowledge,” “to such counsel’s actual knowledge” or similar terms used in said opinion shall have the meaning set forth in the Accord for the term “Actual Knowledge.” In giving their opinions, ▇▇▇▇▇▇ Lovells US LLP ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇ Procter LLP ▇▇▇▇▇▇▇▇ 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, and ▇▇▇▇▇▇▇▇▇▇ Procter LLP ▇▇▇▇▇▇▇▇ may also rely on the opinion of ▇▇▇▇▇▇ Lovells US LLP▇▇▇▇▇▇.
(c) At the Closing Time referred to in Section 2Time, the Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion NCCOB Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company Company, the MHC or the Bank by the NCCOB, the FRB, the FDIC or any other regulatory authority authority, other than those which the FRB or NCCOB, the Division FRB, the FDIC permits to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC and the Bank, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC, and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the MHC or the Bank, as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither the Company nor the Bank shall have received from the FRB any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC or the Bank, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC and the Bank has complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission, and (vii) no order suspending the Subscription and Community Offering or the Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or, to their knowledge, threatened by the FRB and no person has sought to obtain regulatory or judicial review of the action of the Division in approving the Plan nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Holding Company ApplicationMaterial Adverse Effect.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC and of the Bank, dated as of Closing Time, to the effect that (i) there has been no Material Adverse Effect since the date hereof or since the respective dates as of which information is given in the Registration Statement and the Prospectus, (ii) there shall have been no material transaction entered into by the Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the MHC or the Bank has been set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) none of the Company, the MHC or the Bank shall have received from the NCCOB, the FRB or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which would have a Material Adverse Effect, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC and the Bank have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission or any other governmental body, (vii) no order suspending any material aspect of the Conversion or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or threatened by the NCCOB, the FRB, or the FDIC and no person has sought to obtain regulatory or judicial review of the action of the NCCOB, the FRB or the FDIC in approving or not objecting to the Plan in accordance with the applicable regulations, nor has any person sought to obtain regulatory or judicial review of the action of the NCCOB in approving the Conversion Application, of the FRB in approving the Holding Company Application or of the FDIC in not objecting to the Conversion, (viii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forth and (ix) the conditions set forth in this Section 5 have been satisfied.
(f) At the Closing Time, the Agent shall have received a certificate of the Chief Executive Officer and President of the Company, the MHC and the Bank and the Chief Financial Officer of the Company, the MHC and the Bank, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and Statement, the Prospectus, the General Disclosure Package, including any Issuer-Represented Free-Writing Prospectus and the ProspectusMembers’ Proxy Statement; (ii) based on each of their knowledge, the Registration Statement and Statement, the Prospectus, the General Disclosure Package, including any Issuer-Represented Free-Writing Prospectus and the ProspectusMembers’ Proxy Statement, do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and Statement, the Prospectus, the General Disclosure Package, including any Issuer-Represented Free-Writing Prospectus and the ProspectusMembers’ Proxy Statement, fairly present the financial condition and results of operations of the MHC and the subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the General Disclosure PackageProspectus; (iv) they are responsible for establishing and maintaining internal controls; (v) they have designed such internal controls to ensure that material information relating to the Company, including the ProspectusMHC and the Bank is made known to them; (vi) they have evaluated the effectiveness of their internal controls; and (vii) they have disclosed to ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP and the audit committee (A) all significant deficiencies in the design or operation of internal controls which could adversely affect the Company’s, the MHC’s and the Bank’s ability to record, process, summarize, and report financial data, and have identified for the Company’s, the MHC’s and the Bank’s auditors any material weaknesses in internal controls and (B) and fraud, whether or not material, that involves management or other employees who have a significant roles in the Company’s, the MHC’s and the Bank’s internal controls.
(fg) At the time As of the execution of this Agreementdate hereof, the Agent shall have received from ▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇ & Company, P.C., LLP a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHCCompany, the Company MHC and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations, they are registered with the PCAOB, PCAOB and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇ & Company, P.C. LLP set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and Act, the Securities Act Regulations and the NCCOB Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the MHC and the Bank or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings net worth of the MHC and the BankMHC, in each case as compared with the amounts shown in the consolidated statements of financial conditions balance sheet included in the Registration Statement or, or (DA) during the period from [ ]June 30, 2014 2011 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest and dividend income, net interest income, net interest income after provision for loan losses, losses before provision for income before income tax expense taxes or net income of the MHC, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the MHC and the Bank identified in such letter.
(gh) At the Closing Time, the Agent shall have received from ▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇ & Company, P.C. LLP a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (fg) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(hi) At the Closing Time, the Securities shall have been approved for trading quotation on the Nasdaq Capital Global Market upon notice of issuance.
(ij) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(jk) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(kl) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, Massachusetts North Carolina, Georgia or New York authorities.
(m) The Securities shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Company, the MHC and the Bank.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company, the Mid-Tier Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and the issuance of the Exchange Shares and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the Mid-Tier Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, or threatened by the FRB, Commission or the FRB and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇▇▇▇ Lovells US ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, the Mid-Tier Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on as attached hereto as Exhibit A hereto.C.
(2) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ Procter LLP, counsel for the Agent, with respect as to such matters as the Agent may reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, ▇▇▇▇▇▇▇▇▇▇ Lovells US ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇ & ▇▇▇▇▇▇ Procter LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇▇▇▇▇▇▇ Lovells US ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇ & ▇▇▇▇▇▇ Procter LLP may rely as to matters of fact on certificates of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank and certificates of public officials, and ▇. ▇▇▇▇▇▇ Procter & ▇▇▇▇▇▇ LLP may also rely on the opinion of ▇▇▇▇▇▇▇▇▇▇ Lovells US ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP.
(c) At the Closing Time referred to in Section 22 hereof, the Company, the Mid-Tier Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion FRB Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company Company, the Mid-Tier Company, the MHC or the Bank by the FRB, or any other regulatory authority other than those which the FRB or the Division permits to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the Mid-Tier Company, the MHC and the Bank, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practicebusiness, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the Mid-Tier Company, the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHCMid-Tier Company, the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the Mid-Tier Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the Mid-Tier Company, the MHC or the Bank, as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, practice (iii) neither the Company Company, the Mid-Tier Company, the MHC nor the Bank shall have received from the FRB FRB, the OCC or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the Mid-Tier Company, the MHC or the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the Mid-Tier Company, the MHC and the Bank has have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission, Commission and (vii) no order suspending the Subscription and Community Offering FRB’s approval of the Conversion Application, the Holding Company Application or the Syndicated Community Offering or the authorization for final use of the Prospectus transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to their knowledge, or threatened by the FRB and no person has sought to obtain regulatory or judicial review of the action of the Division FRB in approving the Plan in accordance with the FRB Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Conversion Application or the Holding Company Application.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of the Mid-Tier Company, of the MHC Company and of the Bank and the Chief Financial Officer of the Mid-Tier Company, of the MHC Company and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus fairly present the financial condition and results of operations of the MHC Mid-Tier Company and the subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus.
(f) At the time As of the execution of this Agreementdate hereof, the Agent shall have received from ▇▇▇▇▇▇▇▇▇BDO USA, ▇▇▇▇▇▇▇ & Company, P.C., LLP a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHCCompany, the Company Mid-Tier Company, the MHC and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public AccountantsAICPA, the Securities Act and the Securities Act Regulations and the FRB Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇BDO USA, ▇▇▇▇▇▇▇ & Company, P.C. LLP set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC Mid-Tier Company included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and Act, the Securities Act Regulations and the FRB Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” or under “Recent Developments” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-long term or short-short term debt of the MHC and the Bank Mid-Tier Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings net worth of the MHC and the BankMid-Tier Company, in each case as compared with the amounts shown in the September 30, 2013 consolidated statements of financial conditions condition included in the Registration Statement or, (D) during the period from [ ]September 30, 2014 2013 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHCMid-Tier Company, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the Mid-Tier Company, the MHC and the Bank identified in such letter.
(g) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between the Agent and the persons set forth on Exhibit E hereto, relating to sales and certain other dispositions of shares of Common Stock, Mid-Tier Company Common Stock or certain other securities, shall be delivered to the Agent on or before the date hereof and shall be in full force and effect on the Closing Time.
(h) At the Closing Time, the Agent shall have received from ▇▇▇▇▇▇▇▇▇BDO USA, ▇▇▇▇▇▇▇ & Company, P.C. LLP a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(hi) At the Closing Time, the Securities and the Exchange Shares shall have been approved for trading quotation on the Nasdaq Capital Global Select Market upon notice of issuance.
(ij) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(jk) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Exchange Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(kl) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal, Massachusetts New Jersey or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The CompanyYour obligations hereunder, including to consummate the MHCpurchase of Solar Bonds on the applicable Settlement Date, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to (i) the accuracy of the condition that all representations and warranties and other statements of the CompanyCompany herein are, on the MHC Commencement Date and on the Bank herein contained as applicable Settlement Date, true and correct in all material respects; (ii) the condition that the Company shall have performed all of its obligations hereunder in all material respects theretofore to be performed; and (iii) the following additional conditions (it being understood that the conditions set forth in this Article III shall be interpreted to apply solely with respect to the specific sale of the date hereof and series of Solar Bonds that is to be consummated on the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:applicable Settlement Date):
(a) No The Program Supplement and the applicable Pricing Supplement relating to the series of Solar Bonds to be purchased on the applicable Settlement Date shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act; any Issuer Free Writing Prospectus required to be filed by the Company pursuant to Rule 433 under the Securities Act shall have been filed with the Commission within the applicable time period prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration StatementStatement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Program Supplement and the applicable Pricing Supplement relating to such series of Solar Bonds to be purchased on the applicable Settlement Date shall have been initiated or threatened by the Commission; and all requests for additional information, including any post-effective amendment theretosolely as related to the applicable Platform Disclosure Document Package for the series of Solar Bonds to be purchased on the applicable Settlement Date, on the part of the Commission, shall have been issued under the Securities Act or proceedings therefor initiated or, complied with to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or, to the knowledge of the Company, threatened by the FRB, and no order suspending the sale of the Securities in any jurisdiction shall have been issued.your reasonable satisfaction;
(b) At the Closing Time, the Agent Counsel for Incapital shall have received:
furnished to you such written opinion or opinions (1) The favorable opiniona form of each such opinion is attached as Exhibit A hereto), dated as of the Closing TimeCommencement Date and each Representation Date, of ▇▇▇▇▇ Lovells US LLPin form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) Counsel for the Company shall have furnished to you their written opinions, dated as of the Commencement Date and each Representation Date, in substantially the form attached as Exhibit B hereto;
(d) You shall have received on the Commencement Date and each Representation Date, from the Company’s outside independent auditor, dated the MHC and the Bankrespective dates of delivery thereof, in form and substance satisfactory to counsel for you, containing statements and information the Agent, set forth on Exhibit A hereto.
(2) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇ Procter LLP, counsel for the Agent, type ordinarily included in accountants’ “comfort letters” to underwriters with respect to such matters as the Agent may reasonably require.financial statements and certain financial information contained or incorporated by reference into the Prospectus;
(3i) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, Neither the Company nor any of this Section, ▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements, notes to financial statements, stock valuation information and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, ▇▇▇▇▇ Lovells US LLP and ▇▇▇▇▇▇▇ Procter LLP 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, and ▇▇▇▇▇▇▇ Procter LLP may also rely on the opinion of ▇▇▇▇▇ Lovells US LLP.
(c) At the Closing Time referred to in Section 2, the Company, the MHC and the Bank its Subsidiaries shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company or the Bank by the FRB, or any other regulatory authority other than those which the FRB or the Division permits to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, sustained since the date hereof of the latest audited financial statements included or incorporated by reference in the applicable Pricing Supplement any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Supplement, and (ii) since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, Pricing Supplement there shall not have been any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC and the Bank, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received development involving a certificate of the President and Chief Executive Officer of the Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC, and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse prospective change, (ii) there shall have been no material transaction entered into by in or affecting the Companygeneral affairs, the MHC management, consolidated financial position, consolidated stockholders’ equity or the Bank from the latest date as of which the financial condition of the Company, the MHC or the Bank, as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither the Company nor the Bank shall have received from the FRB any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC or the Bank, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC and the Bank has complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission, and (vii) no order suspending the Subscription and Community Offering or the Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or, to their knowledge, threatened by the FRB and no person has sought to obtain regulatory or judicial review of the action of the Division in approving the Plan nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Holding Company Application.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on their knowledge, the financial statements and other financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, fairly present the financial condition and consolidated results of operations of the MHC Company and its Subsidiaries, other than as set forth or contemplated in the subsidiaries as Pricing Supplement, the effect of which, in any such case described in clause (i) or (ii), is in Incapital’s judgment makes it impracticable or inadvisable to proceed with the distribution of the particular series of Solar Bonds being delivered at the applicable Settlement Date on the terms and for in the dates and periods covered by manner contemplated in the Registration Statement and the General applicable Platform Disclosure Document Package, including the Prospectus.;
(f) At On or after the time Applicable Time, as related solely to the offering of the execution series of this AgreementSolar Bonds to be purchased on the applicable Settlement Date, the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C., a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect no downgrading shall have occurred in the rating accorded to any debt securities issued directly by the MHCCompany, if any, by any “nationally recognized statistical rating organization”, as that term is defined by the Company and the Bank within the meaning Commission for purposes of the Code of Ethics of the American Institute of Certified Public Accountants, Rule 436(g) under the Securities Act and the Securities Act Regulations, they are registered with the PCAOBAct, and they are not in violation of the auditor independence requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; (ii) no such organization shall have publicly announced that it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects has under surveillance or review, with the applicable accounting requirements possible negative implications, its rating of any of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term ’s debt of the MHC and the Bank or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings of the MHC and the Bank, in each case as compared with the amounts shown in the consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from [ ], 2014 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHC, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the MHC and the Bank identified in such letter.securities;
(g) At On or after the Closing Applicable Time, as related solely to the Agent shall have received from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.C. a letter, dated as offering of the Closing Time, particular series of Solar Bonds to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five days prior to the Closing Time.
(h) At the Closing Time, the Securities shall have been approved for trading purchased on the Nasdaq Capital Market upon notice of issuance.
(i) At the Closing Timeapplicable Settlement Date, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agentfollowing: (i) no litigation or proceeding shall be pending or, is so material and adverse as to make it impracticable the Company’s knowledge, threatened, to market restrain or enjoin the Securities issuance or to enforce contracts, including subscriptions or orders, for the sale delivery of the SecuritiesSolar Bonds, and (ii) a suspension or material limitation in trading in securities generally on either the New York Stock Exchange or NASDAQ; (iii) a suspension or material limitation in trading in the Nasdaq Company’s securities on the New York Stock Market shall not have been suspended, and minimum Exchange or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, NASDAQ; (iv) a general moratorium on commercial banking activities declared by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by Federal, Massachusetts Federal or New York authoritiesor California State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (v) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war, or (vi) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (v) or (vi) in Incapital’s judgment makes it impracticable or inadvisable to proceed with the distribution of the particular series of Solar Bonds being delivered at the applicable Settlement Date on the terms and in the manner contemplated in the applicable Platform Disclosure Document Package;
(h) If contemplated by the Prospectus for a particular series of Solar Bonds, the Solar Bonds shall be eligible for clearance and settlement through the facilities of DTC; and
(i) You shall have received on the Commencement Date and each Representation Date, the certificates of officers of the Company as set forth in Section VII(a).
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