Conditions to Obligations of the Agent. The obligations of the Agent hereunder are subject to the condition that all representations and warranties and other statements of the Company are, at and as of the commencement of the Offering and at and as of the applicable Closing Date, true and correct in all material respects and the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed, and the following additional conditions: a. No Prospectus or amendment or supplement to the Registration Statement or the Prospectus shall have been filed to which the Agent shall have objected in writing. b. The Registration Statement and any registration statement required to be filed, prior to the sale of the Shares, under the 1933 Act pursuant to Rule 424(b) shall have been filed and shall have become effective under the 1933 Act. (i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings initiated under Section 8(d) or 8(e) of the 1933 Act; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein in light of the circumstances under which they are made, not misleading; and (iii) none of the Prospectus or any amendment or supplement thereto shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. ▇. ▇▇▇▇▇▇ Law Firm, P.A., counsel for the Company, shall have furnished to the Agent its written opinion, dated as of each Closing Date, in form and substance satisfactory to the Agent, substantially to the effect set forth in Appendix 6 hereto; in rendering the opinions required by this section, such counsel, with the consent of Agent’s counsel, may rely, as to matters of fact, upon certificates and representations of officers of the Company and on certificates of public officials. e. At the time of the execution of this Agreement, the Agent shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇, LLC a letter dated such date, in form and substance satisfactory to the Agent to the effect that: i. ▇▇▇▇▇▇ ▇▇▇▇▇, LLC are independent certified public accountants with respect to the Company within the meaning of the 1933 Act and the applicable published rules and regulations adopted by the Commission and the PCAOB; ii. In the opinion of ▇▇▇▇▇▇ ▇▇▇▇▇, LLC, the financial statements audited by ▇▇▇▇▇▇ ▇▇▇▇▇, LLC and included in the Registration Statement comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and the related rules and regulations adopted by the Commission; iii. For the purposes of providing such letter, ▇▇▇▇▇▇ ▇▇▇▇▇, LLC has read the fiscal 2008 minutes of meetings of shareholders, the Board of Directors and any committees of the Board of Directors of the Company, as set forth in the minute books as of a date within five days of the Effective Time, officials of the Company advising ▇▇▇▇▇▇ ▇▇▇▇▇, LLC that the minutes of all such meetings through that date were set forth therein; and iv. Such additional statements relating to the unaudited quarterly financial statements of the Company subsequent to the date of Company’s most recent audited financial statements as the Agent may reasonably request. f. At each Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and Chief Financial Officer of each of the Company and the Bank (if the Bank is capitalized at such time), dated the Closing Date, to the effect that (i) they have carefully examined the Prospectus and, as of its date, the date it was filed with the Commission, and the applicable Closing Date, the Prospectus did not contain any untrue statement of a material fact or omit 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; (ii) there has not been, since the respective dates as of which information is given in the Prospectus, any material adverse change in the financial condition or in the management, earnings, capital, properties, business prospects or business affairs of the Company or the Bank, considered as one enterprise, whether or not arising in the ordinary course of business; (iii) the representations and warranties contained in Section 3 of this Agreement are true and correct in all material respects with the same force and effect as though made at and as of such Closing Date; (iv) the Company and the Bank have complied in all material respects with all material agreements and satisfied all conditions on its part to be performed or satisfied at or prior to such Closing Date including the conditions contained in this Section 8; (v) no stop order has been issued or, to their knowledge, is threatened, by the Commission, a Regulatory Agency, the Federal Reserve or any other governmental body; (vi) no order suspending the Offering, the acquisition of all of the shares of the Bank by the Company or the effectiveness of the Prospectus has been issued and to their knowledge, no proceedings for any such purpose have been initiated or threatened by any Regulatory Agency, the Federal Reserve or any other federal or state authority; and (vii) to their knowledge, no person has sought to obtain regulatory or judicial review of the action of the OCC, the FDIC or the Federal Reserve in granting preliminary approval of the Applications or the Holding Company Application. g. Neither the Company nor the Bank shall have sustained since the date of the latest audited financial statements included in the Registration Statement or the Prospectus, any material 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, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any material change in the long-term debt of the Company or the Bank or any material change, or any development, involving a prospective material change in or affecting the general affairs of the management, financial position, shareholders’ equity (deficit) or results of operations of the Company or the Bank, otherwise than as set forth in or contemplated by the Registration Statement and the Prospectus, the effect of which, in any such case described above, is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the sale of the Shares on the terms and in the manner contemplated in the Prospectus. h. Prior to and at each Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the management, financial condition, earnings, capital, properties or business affairs of the Company or the Bank independently, or of the Company and the Bank, considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, except as referred to therein or contemplated thereby; (ii) there shall have been no material transaction entered into by the Company and the Bank, considered as one enterprise, from the latest date as of which the financial condition of the Company or the Bank is set forth in the Prospectus other than transactions referred to or contemplated therein; (iii) the Company or the Bank shall not have received from the OCC, the Federal Reserve or the FDIC any direction (oral or written) to make any material change in the method of conducting their respective businesses with which they have not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would reasonably be expected to have a Material Adverse Effect; (iv) neither the Company nor the Bank shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (v) no action, suit or proceedings, at law or in equity or before or by any federal or state commission, board or other administrative agency, shall be pending or, to the knowledge of the Chief Executive Officer of the Company or the Bank, threatened against the Company or the Bank or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; and (vi) the Shares shall have been qualified or registered for offering and sale under the securities or Blue Sky Laws of the jurisdictions as to which the Company and the Agent shall have agreed. i. At or prior to such Closing Date, the Agent shall receive (i) a copy of the letters from the OCC and the FDIC granting preliminary approval of the Applications, (ii) a copy of the order from the Commission declaring the Registration Statement effective, (iii) a certificate of existence from the State of South Carolina evidencing the existence of the Company and (iv) a copy of the letter from the Federal Reserve granting preliminary approval of the Holding Company Application. j. Subsequent to the date hereof, there shall not have occurred any of the following: (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange or American Stock Exchange or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or FINRA or by order of the Commission or any other governmental authority; or (ii) a general moratorium on the operations of commercial banks or other federally-insured financial institutions or general moratorium on the withdrawal of deposits from commercial banks or other federally-insured financial institutions declared by either federal or state authorities if the effect of either of (i) or (ii) herein, in the Agent’s reasonable judgment, makes it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus and the Agent shall have promptly notified the Company of such event. k. FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the terms of this Agreement and Agent’s compensation hereunder. l. Upon the Bank’s capitalization, provided the Commencement Date has occurred without this Agreement having been terminated, the Company shall, or shall have caused the Bank to, deliver the Assumption Agreement duly executed by the Bank to the Agent as contemplated by Section 6(s) hereof.
Appears in 2 contracts
Sources: Agency Agreement (Coastal Carolina Bancshares, Inc.), Agency Agreement (Coastal Carolina Bancshares, Inc.)
Conditions to Obligations of the Agent. The obligations of the Agent hereunder and immediately prior to the initial Closing of the Offering and each subsequent Closing are subject to the condition that all representations and warranties and other statements of the Company are, at and as of the commencement of the Offering and at and as of the applicable each Closing Date, true and correct in all material respects and the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed, and the following additional conditions:
a. (a) No Prospectus Registration Statement or amendment or supplement to the Registration Statement or the Prospectus thereto shall have been filed distributed to which the Agent shall have objected in writing.
b. The Registration Statement and any registration statement required to be filed, prior to the sale of the Shares, under the 1933 Act pursuant to Rule 424(b(b) shall have been filed and shall have become effective under the 1933 Act.
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings initiated under Section 8(d) or 8(e) of the 1933 Act; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein in light of the circumstances under which they are made, not misleading; and (iii) none of the Prospectus or any amendment or supplement thereto shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading.
▇. ▇▇▇▇▇▇ Law Firm▇▇▇▇▇▇▇ ▇▇▇▇▇ & Scarborough LLP, P.A.counsel for the Agent, shall have furnished to the Agent such opinion or opinions, dated as of each Closing Date, with respect to such matters as the Agent 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) ▇▇▇▇▇▇ & ▇▇▇▇▇▇ PLLC, counsel for the Company, shall have furnished to the Agent its written opinion, dated as of each Closing Date, in a form and substance reasonably satisfactory to the Agent and Agent, substantially ’s counsel and to the such further effect as set forth in Appendix 6 hereto; in rendering the opinions required by this section, such counsel, with the consent of Agent’s counsel, may rely, as to matters of fact, upon certificates and representations of officers of the Company and on certificates of public officialsII.
e. (d) At the time of the execution of this Agreement, the Agent shall have received from ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ Certified Public Accountants, LLC a letter dated such date, in form and substance satisfactory to the Agent containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the effect that:financial statements and certain financial information contained in the Registration Statement.
i. (e) At each Closing Date, the Agent shall have received from ▇▇▇▇▇▇▇ & ▇▇▇▇▇, LLC are independent certified public accountants with respect to the Company within the meaning of the 1933 Act and the applicable published rules and regulations adopted by the Commission and the PCAOB;
ii. In the opinion of ▇▇▇▇▇▇ ▇▇▇▇▇Certified Public Accountants, LLC, a letter, dated as of Closing Date, to the financial effect that they reaffirm the statements audited by ▇▇▇▇▇▇ ▇▇▇▇▇, LLC and included made in the Registration Statement comply as letter furnished pursuant to form in all material respects with subsection (d) of this Section, except that the applicable accounting requirements of the 1933 Act and the related rules and regulations adopted by the Commission;
iii. For the purposes of providing such letter, ▇▇▇▇▇▇ ▇▇▇▇▇, LLC has read the fiscal 2008 minutes of meetings of shareholders, the Board of Directors and any committees of the Board of Directors of the Company, as set forth in the minute books as of specified date referred to shall be a date within five not more than three business days of the Effective Time, officials of the Company advising ▇▇▇▇▇▇ ▇▇▇▇▇, LLC that the minutes of all such meetings through that date were set forth therein; and
iv. Such additional statements relating prior to the unaudited quarterly financial statements of the Company subsequent to the date of Company’s most recent audited financial statements as the Agent may reasonably requestClosing Date.
f. (f) At each Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and Chief Financial Officer of each of the Company and the Bank (if the Bank is capitalized at such time)Company, dated the Closing Date, solely in their respective capacities as officers of the Company, to the effect that (i) they have carefully examined the Prospectus Registration Statement and, as of its date, the date it was filed with the Commission, and the applicable Closing Datetime of purchase, the Prospectus Registration Statement did not contain any untrue statement of a material fact or omit 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; (ii) there has not been, since the respective dates as of which information is given in the ProspectusRegistration Statement, any material adverse change Material Adverse Effect except as disclosed in the financial condition or in the management, earnings, capital, properties, business prospects or business affairs of the Company or the Bank, considered as one enterprise, whether or not arising in the ordinary course of businessRegistration Statement; (iii) the representations and warranties contained in Section 3 of this Agreement are true and correct in all material respects with the same force and effect as though made at and as of such the Closing Date; (iv) the Company and the Bank have has complied in all material respects with all material agreements and satisfied all conditions on its part to be performed or satisfied at or prior to such the Closing Date including the conditions contained in this Section 87; (v) no stop order has been issued or, to the best of their knowledge, is threatened, by the Commission, a Regulatory Agency, the Federal Reserve or any other governmental body; and (vi) no order suspending the Offering, the acquisition of all of the shares of the Bank by the Company or the effectiveness of the Prospectus Offering has been issued and to the best of their knowledge, no proceedings for any such purpose have been initiated or threatened by any Regulatory Agency, the Federal Reserve Agency or any other federal or state authority; and (vii) to their knowledge, no person has sought to obtain regulatory or judicial review of the action of the OCC, the FDIC or the Federal Reserve in granting preliminary approval of the Applications or the Holding Company Application.
g. Neither the (g) The Company nor the Bank shall not have sustained since the date of the latest audited financial statements included in the Registration Statement or the ProspectusStatement, any material 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, otherwise than as set forth in the Registration Statement and the ProspectusStatement, and since the respective dates as of which information is are given in the Registration Statement and the ProspectusStatement, there shall not have been any material change in the long-term debt of the Company or the Bank or any material change, or any development, involving a prospective material change in or affecting the general affairs of the management, financial position, shareholdersstockholders’ equity (deficit) or results of operations of the Company or the BankCompany, otherwise than as set forth in or contemplated by in the Registration Statement and the ProspectusStatement, the effect of which, in any such case described above, is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the sale delivery of the Shares on the terms and in the manner contemplated in the ProspectusRegistration Statement.
h. (h) Prior to and or at each Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the management, financial condition, earnings, capital, properties or business affairs of the Company or the Bank independently, or of the Company and the Bank, considered as one enterprise, Material Adverse Effect independently from that as of the latest dates as of which such condition is set forth in the ProspectusRegistration Statement, except as referred to therein or contemplated therebytherein; (ii) there shall have been no material transaction entered into by the Company and the Bank, considered as one enterprise, from the latest date as of which the financial condition of the Company or the Bank is set forth in the Prospectus Registration Statement other than transactions referred to or contemplated therein; (iii) the Company or the Bank shall not have received from the OCC, the Federal Reserve or the FDIC any Regulatory Agencies any direction (oral or written) to make any material change in the method of conducting their respective businesses its business with which they have it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would reasonably be expected to have a Material Adverse Effect; (iv) neither the Company nor the Bank shall not have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (v) no action, suit or proceedings, at law or in equity or before or by any federal or state commission, board or other administrative agency, shall be pending or, to the knowledge of the Chief Executive Officer of the Company or the BankCompany, threatened against the Company or the Bank or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; and (vi) the Shares shall have been qualified or registered for offering and sale under the securities or Blue Sky Laws blue sky laws of the jurisdictions as to which the Company and the Agent shall have agreed.
i. At or prior to such Closing Date, the Agent shall receive (i) a copy of the letters from the OCC and the FDIC granting preliminary approval of the Applications, (ii) a copy of the order from the Commission declaring the Registration Statement effective, (iii) a certificate of existence from the State of South Carolina evidencing the existence of the Company and (iv) a copy of the letter from the Federal Reserve granting preliminary approval of the Holding Company Application.
j. Subsequent to the date hereof, there shall not have occurred any of the following: (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange or American Stock Exchange or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or FINRA or by order of the Commission or any other governmental authority; or (ii) a general moratorium on the operations of commercial banks or other federally-insured financial institutions or general moratorium on the withdrawal of deposits from commercial banks or other federally-insured financial institutions declared by either federal or state authorities authorities; (ii) the engagement by the United States in hostilities which have resulted in the declaration, on or after the date hereof, of a national emergency or war; or (iii) a material decline in the price of equity or debt securities, if the effect of either any of (i) or through (iiiii) herein, in the Agent’s reasonable judgment, makes it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus and the Agent shall have promptly notified the Company of such eventStatement.
k. (j) FINRA shall have has confirmed that it has not raised any objection with respect to the fairness and reasonableness of the terms of this Agreement and the Agent’s compensation hereunder.
l. Upon the Bank’s capitalization, provided the Commencement Date has occurred without this Agreement having been terminated, the Company shall, or shall have caused the Bank to, deliver the Assumption Agreement duly executed by the Bank to the Agent as contemplated by Section 6(s) hereof.
Appears in 1 contract
Sources: Agency Agreement (Piedmont Community Bank Group, Inc.)
Conditions to Obligations of the Agent. The obligations of the Agent hereunder and the occurrence of the Closing of the Offering are subject subject, in its discretion, to the condition that all representations and warranties and other statements of the Company are, at and as of the commencement of the Offering Commencement Date and at and as of the applicable Closing Date, true and correct in all material respects and the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed, and the following additional conditions:
a. No Prospectus or amendment or supplement to the Registration Statement or the Prospectus shall have been filed to which the Agent shall have objected in writing.
b. The Registration Statement and any registration statement required to be filed, prior to the sale of the Shares, under the 1933 Act pursuant to Rule 424(b) shall have been filed and shall have become effective under the 1933 Act.
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings initiated under Section 8(d) or 8(e) of the 1933 Act; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein in light of the circumstances under which they are made, not misleading; and (iii) none of the Prospectus or any Prospectus, and no amendment or supplement thereto thereto, shall not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading.
▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ Law Firm& ▇▇▇▇▇▇▇, P.A.LLP, counsel for the Company, shall have furnished to the Agent its their written opinion, dated as of each the Closing Date, in form and substance satisfactory to the Agent, substantially Agent to the effect that:
i. The Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Georgia, with corporate power and authority to own its properties and to conduct its business as described in the Registration Statement and the Prospectus and to such counsel’s knowledge is duly qualified to transact business and is in good standing under the laws of each jurisdiction in which the conduct of its business requires such qualification and in which the failure to qualify would have a material adverse effect on the financial condition, earnings, capital, properties or business affairs of the Company.
ii. Upon receipt of final approval of the OCC, the Bank will be a duly organized and validly existing national banking association with full power and authority to own its properties and to conduct its business as described in the Registration Statement and the Prospectus and to enter into this Agreement and perform its obligations hereunder; the activities of the Bank as described in the Registration Statement and the Prospectus are permitted by the rules, regulations and practices of the Regulatory Agencies and the Federal Reserve; the issuance and sale of the capital stock of the Bank to the Company has been duly and validly authorized by all necessary corporate action on the part of the Company and the Bank and, upon payment therefore as described in the Prospectus, will be validly issued, fully paid and nonassessable; and will be owned of record and beneficially by the Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
iii. Upon receipt of final FDIC approval, the deposit accounts of the Bank will be insured by the FDIC up to the maximum amount allowed by law and to such counsel’s knowledge no proceedings for the termination or revocation of such insurance are pending or threatened.
iv. Upon the completion of the Offering, the authorized, issued and outstanding capital stock of the Company and the Bank will be as set forth in Appendix 6 heretothe Registration Statement and the Prospectus under the caption “Capitalization,” and no shares of Common Stock or attached warrants have been or will be issued and outstanding prior to the Closing Date, other than as set forth in the Prospectus; the Shares of the Company to be subscribed for in rendering the opinions Offering have been duly and validly authorized for issuance, and when issued and delivered by the Company pursuant to the plan of distribution against payment of the consideration calculated as set forth in the plan of distribution, will be fully paid and nonassessable; and the issuance of the Shares is not subject to preemptive rights.
v. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary action on the part of the Company and the Bank; and this Agreement constitutes a valid, legal and binding obligation of each of the Company and the Bank, enforceable in accordance with its terms, except to the extent that the provisions of Section 9 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally, or the rights of creditors of financial institutions insured by the FDIC (including the laws relating to the rights of the contracting parties to equitable remedies).
vi. Subject to the satisfaction of the conditions to the Regulatory Agencies’ approval of the Applications and the Federal Reserve’s approval of the Holding Company Application, no further approval, registration, authorization, consent or other order of any federal regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares and the consummation of the Offering.
vii. The Applications, as filed with the Regulatory Agencies, have been granted preliminary approval by this sectionthe Regulatory Agencies. The Federal Reserve has issued its preliminary order of approval under the BHCA, and the purchase by the Company of all of the issued and outstanding capital stock of the Bank has been authorized by the Federal Reserve and no action has been taken, or to such counsel’s knowledge is pending or threatened, to revoke any such authorization or approval.
viii. The Registration Statement has been declared effective under the 1933 Act, such counsel has received no notice that a stop order suspending the effectiveness of the Registration Statement has been issued, and to such counsel’s knowledge no proceedings for that purpose have been instituted or threatened.
ix. The consummation of the Offering and the transactions contemplated thereunder will have no material tax consequences to the Company or the Bank.
x. The terms and provisions of the Shares conform to the description thereof contained in the Registration Statement and such description describes in all material respects the rights of the holders thereof; the information in the Registration Statement and the Prospectus under the caption “Articles of Incorporation” to the extent that it constitutes matters of law or legal conclusions has been prepared by such counsel and is accurate in all material respects; and the forms of certificates proposed to be used to evidence the Shares are in due and proper form.
xi. At the time each of the Applications and the Holding Company Application was approved, such Application and Holding Company Application (as amended or supplemented) complied as to form in all material respects with the requirements of the Regulatory Agencies, the Federal Reserve and all applicable laws, rules and regulations and decisions and orders of the Regulatory Agencies, except as modified or waived in writing by the Regulatory Agencies and the Federal Reserve, (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein as to which counsel need express no opinion and other than compliance with state securities or Blue Sky laws as to which such counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the Regulatory Agencies approving the Applications and the Holding Company Application.
xii. The Registration Statement complied as to form when it became effective at the time of purchase of any Shares and as of the Closing Date, with the consent requirements of Agentthe 1933 Act; each Preliminary Prospectus complied as to form, at the time it was filed with the Commission, and complies as of the date hereof, in all material respects, with the requirements of the 1933 Act.
xiii. To the best of such counsel’s knowledge, there are no legal or governmental proceedings pending, or threatened (A) asserting the invalidity of this Agreement or (B) seeking to prevent the Offering.
xiv. The information in the Registration Statement and the Prospectus under the caption “Supervision and Regulation”, to the extent that it constitutes matters of law, summaries and supervision of legal matters, documents or proceedings, or legal conclusions, has been prepared by such counsel and is accurate in all material respects (except as to the financial statements and other financial data included therein as to which such counsel need express no opinion).
xv. To such counsel’s knowledge, the Company and the Bank have obtained all material licenses, permits and other governmental authorizations (including preliminary approval from the OCC) required for the conduct of their respective businesses as described in the Registration Statement and the Prospectus, except where the failure to obtain such licenses, permits and other governmental authorizations would not have a material adverse effect on the financial condition of the Company or the Bank considered as one enterprise, or on the earnings, capital, properties or business affairs of the Company or the Bank considered as one enterprise, and all such licenses, permits and other governmental authorizations (including preliminary approval from the OCC), are in full force and effect and the Company and the Bank are in all material respects complying therewith.
xvi. Neither the Company nor the Bank is in violation of its Articles of Incorporation or its Articles of Association, as applicable, or its Bylaws, respectively, or to such counsel’s knowledge, in violation of any material obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, loan agreement, note, lease or other instrument to which it is a party or by which it or its property may relybe bound, which violation would have a material adverse effect on the financial condition of the Company or the Bank considered as one enterprise, or on the earnings, capital, properties or business affairs of the Company and the Bank considered as one enterprise; the execution and delivery of this Agreement by the Company and the Bank, the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein, will not materially conflict with, constitute a material breach of, or default under, or result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Company or the Bank which are material to their business considered as one enterprise, pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument known to such counsel to which the Company or the Bank 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 the Bank is subject. In addition, such action will not result in any material violation of the provisions of the certificate of incorporation or bylaws of the Company or the Bank or any material violation of any applicable law, act, regulation or to such counsel’s knowledge, order or court order, writ, injunction or decree.
xvii. To such counsel’s knowledge, the Company and the Bank are not in violation in any material respect of any directive from any Regulatory Agency to make any material change in the method of conducting their business.
e. The letter of ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP in form and substance to the effect that:
i. In addition, during the preparation of the Registration Statement, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP participated in conferences with certain officers of and other representatives of the Bank and the Company, and representatives of the independent public accountants for the Bank and the Company which the contents of the Registration Statement, the Prospectus and related matters were discussed and, although ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP are not passing upon and do not assume the accuracy of the statements contained in the Registration Statement or the Prospectus on the basis of the foregoing without independent verification (relying as to materiality as to factual matters on certificates of officers and other factual representations by the Bank and the Company), nothing has come to the attention of ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP that caused ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP to believe that the Registration Statement (excluding the financial statements and schedules, the notes thereto and the auditors’ report thereon and the other financial and accounting data included therein, or omitted therefrom, and the exhibits thereto), at the time of the filing of the Prospectus with the Commission included an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or that the Prospectus (excluding the financial statements and schedules, the notes thereto and the auditors’ report thereon and the other financial and accounting data included therein, or omitted therefrom, and the exhibits thereto), as of its date and as of the date of counsel’s opinion, 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 light of the circumstances under which they were made, not misleading.
ii. The opinion shall be limited to matters governed by the laws of the United States or the State of Georgia. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States or Georgia, to the extent such counsel deems proper and specified in such opinion, upon the opinion of other counsel of good standing, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, upon to the extent such counsel deems proper, on certificates and representations of responsible officers of the Company and on the Bank and public officials; provided copies of any such opinion(s) or certificates of public officialsofficials are delivered to you together with the opinion to be rendered hereunder by ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP. The opinion of such counsel for the Company shall state that it has no reason to believe that you are not justified in relying thereon. Where any of the foregoing opinions refers to the knowledge of counsel, such counsel may state that their opinion is limited to the actual knowledge of attorneys actively involved in the transactions contemplated by this agreement or in the preparation of the opinion letter required by this subsection (f).
e. f. At the time of the execution of this Agreement, the Agent shall have received from ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLC a letter dated such date, in form and substance satisfactory to the Agent containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the effect that:financial statements and certain financial information contained in the Registration Statement and the Prospectus.
i. g. At the Closing Date, the Agent shall have received from ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLC are independent certified public accountants with respect a letter, dated as of Closing Date, to the Company within effect that they reaffirm the meaning of the 1933 Act and the applicable published rules and regulations adopted by the Commission and the PCAOB;
ii. In the opinion of ▇▇▇▇▇▇ ▇▇▇▇▇, LLC, the financial statements audited by ▇▇▇▇▇▇ ▇▇▇▇▇, LLC and included made in the Registration Statement comply as letter furnished pursuant to form in all material respects with subsection (f) of this Section, except that the applicable accounting requirements of the 1933 Act and the related rules and regulations adopted by the Commission;
iii. For the purposes of providing such letter, ▇▇▇▇▇▇ ▇▇▇▇▇, LLC has read the fiscal 2008 minutes of meetings of shareholders, the Board of Directors and any committees of the Board of Directors of the Company, as set forth in the minute books as of specified date referred to shall be a date within five not more than three business days of the Effective Time, officials of the Company advising ▇▇▇▇▇▇ ▇▇▇▇▇, LLC that the minutes of all such meetings through that date were set forth therein; and
iv. Such additional statements relating prior to the unaudited quarterly financial statements of the Company subsequent to the date of Company’s most recent audited financial statements as the Agent may reasonably requestClosing Date.
f. h. At each the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and Chief Financial Officer of each of the Company and the Bank (if the Bank is capitalized at such time)Bank, dated the Closing Date, to the effect that (i) they have carefully examined the Prospectus and, as of its date, the date it was filed with the Commission, and the applicable Closing Date, the Prospectus did not contain any untrue statement of a material fact or omit 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; (ii) there has not been, since the respective dates as of which information is given in the Prospectus, any material adverse change in the financial condition or in the management, earnings, capital, properties, business prospects or business affairs of the Company or the Bank, considered as one enterprise, whether or not arising in the ordinary course of business; (iii) the representations and warranties contained in Section 3 of this Agreement are true and correct in all material respects with the same force and effect as though made at and as of such Closing Date; (iv) the Company and the Bank have complied in all material respects with all material agreements and satisfied all conditions on its part to be performed or satisfied at or prior to such Closing Date including the conditions contained in this Section 8; (v) no stop order has been issued or, to their knowledge, is threatened, by the Commission, a Regulatory Agency, the Federal Reserve or any other governmental body; (vi) no order suspending the Offering, the acquisition of all of the shares of the Bank by the Company or the effectiveness of the Prospectus has been issued and to their knowledge, no proceedings for any such purpose have been initiated or threatened by any Regulatory Agency, the Federal Reserve or any other federal or state authority; and (vii) to their knowledge, no person has sought to obtain regulatory or judicial review of the action of the OCC, the FDIC or the Federal Reserve in granting preliminary approval of the Applications or the Holding Company Application.
g. Neither the Company nor the Bank shall have sustained since the date of the latest audited financial statements included in the Registration Statement or the Prospectus, any material 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, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any material change in the long-term debt of the Company or the Bank or any material change, or any development, involving a prospective material change in or affecting the general affairs of the management, financial position, shareholders’ equity (deficit) or results of operations of the Company or the Bank, otherwise than as set forth in or contemplated by the Registration Statement and the Prospectus, the effect of which, in any such case described above, is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the sale of the Shares on the terms and in the manner contemplated in the Prospectus.
h. Prior to and at each Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the management, financial condition, earnings, capital, properties or business affairs of the Company or the Bank independently, or of the Company and the Bank, considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, except as referred to therein or contemplated thereby; (ii) there shall have been no material transaction entered into by the Company and the Bank, considered as one enterprise, from the latest date as of which the financial condition of the Company or the Bank is set forth in the Prospectus other than transactions referred to or contemplated therein; (iii) the Company or the Bank shall not have received from the OCC, the Federal Reserve or the FDIC any direction (oral or written) to make any material change in the method of conducting their respective businesses with which they have not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would reasonably be expected to have a Material Adverse Effect; (iv) neither the Company nor the Bank shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (v) no action, suit or proceedings, at law or in equity or before or by any federal or state commission, board or other administrative agency, shall be pending or, to the knowledge of the Chief Executive Officer of the Company or the Bank, threatened against the Company or the Bank or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; and (vi) the Shares shall have been qualified or registered for offering and sale under the securities or Blue Sky Laws of the jurisdictions as to which the Company and the Agent shall have agreed.
i. At or prior to such Closing Date, the Agent shall receive (i) a copy of the letters from the OCC and the FDIC granting preliminary approval of the Applications, (ii) a copy of the order from the Commission declaring the Registration Statement effective, (iii) a certificate of existence from the State of South Carolina evidencing the existence of the Company and (iv) a copy of the letter from the Federal Reserve granting preliminary approval of the Holding Company Application.
j. Subsequent to the date hereof, there shall not have occurred any of the following: (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange or American Stock Exchange or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or FINRA or by order of the Commission or any other governmental authority; or (ii) a general moratorium on the operations of commercial banks or other federally-insured financial institutions or general moratorium on the withdrawal of deposits from commercial banks or other federally-insured financial institutions declared by either federal or state authorities if the effect of either of (i) or (ii) herein, in the Agent’s reasonable judgment, makes it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus and the Agent shall have promptly notified the Company of such event.
k. FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the terms of this Agreement and Agent’s compensation hereunder.
l. Upon the Bank’s capitalization, provided the Commencement Date has occurred without this Agreement having been terminated, the Company shall, or shall have caused the Bank to, deliver the Assumption Agreement duly executed by the Bank to the Agent as contemplated by Section 6(s) hereof.Closing
Appears in 1 contract
Conditions to Obligations of the Agent. The obligations of the Agent hereunder and the occurrence of the Closing of the Offering are subject subject, in its discretion, to the condition that all representations and warranties and other statements of the Company are, at and as of the commencement of the Offering and at and as of the applicable Closing Date, true and correct in all material respects and the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed, and the following additional conditions:
a. No Prospectus or amendment or supplement to the Registration Statement or the Prospectus shall have been filed to which the Agent shall have objected in writing.
b. The Registration Statement and any registration statement required to be filed, prior to the sale of the Shares, under the 1933 Act pursuant to Rule 424(b) shall have been filed and shall have become effective under the 1933 Act.
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings initiated under Section 8(d) or 8(e) of the 1933 Act; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein in light of the circumstances under which they were made not misleading; (iii) none of the Preliminary Prospectuses or the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading; (iv) no Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading; and (iiiv) none of the Prospectus or any amendment or supplement thereto Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading.
▇. ▇▇▇▇▇▇ Law Firm, P.A.& ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, shall have furnished to the Agent its written opinion, dated as of each Closing Date, in form and substance satisfactory to the Agent, substantially to the effect set forth in Appendix 6 hereto; in rendering the opinions required by this section, such counsel, with the consent of Agent’s counsel, may rely, as to matters of fact, upon certificates and representations of officers of the Company and on certificates of public officials.
e. At the time of the execution of this Agreement, the Agent shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇, LLC a letter dated such date, in form and substance satisfactory to the Agent to the effect that:
i. ▇▇▇▇▇▇ ▇▇▇▇▇The Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Michigan, LLC with corporate power and authority to own its properties and to conduct its business as described in the Registration Statement, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus, and to such counsel’s knowledge is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which the failure to qualify would have a material adverse effect on the financial condition, earnings, capital, properties or business affairs of the Company.
ii. Upon receipt of final approval of the MOFIS, the Bank will be a duly organized and validly existing Michigan state banking association with full power and authority to own its properties and to conduct its business as described in the Registration Statement, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus and to enter into this Agreement and perform its obligations hereunder; the activities of the Bank as described in the Registration Statement, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus are independent certified public accountants with respect permitted by the rules, regulations and practices of the Regulatory Agencies and the Federal Reserve; the issuance and sale of the capital stock of the Bank to the Company within has been duly and validly authorized by all necessary corporate action on the meaning part of the 1933 Act Company and the applicable published rules Bank and, upon payment therefore as described in the Prospectus, will be validly issued, fully paid and regulations adopted nonassessable; and will be owned of record and beneficially by the Commission Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
iii. Upon receipt of final FDIC approval, the deposit accounts of the Bank will be insured by the FDIC up to the maximum amount allowed by law and to such counsel’s knowledge no proceedings for the termination or revocation of such insurance are pending or threatened.
iv. Upon the completion of the Offering, the authorized, issued and outstanding capital stock of the Company and the PCAOB;
ii. In the opinion of ▇▇▇▇▇▇ ▇▇▇▇▇, LLC, the financial statements audited by ▇▇▇▇▇▇ ▇▇▇▇▇, LLC and included Bank will be as set forth in the Registration Statement, the Preliminary Prospectus, and the Prospectus under the caption “Capitalization,” (and any similar sections or information, if any, contained in any Permitted Free Writing Prospectus) and no shares of Common Stock or attached warrants have been or will be issued and outstanding prior to the Closing Date, other than as set forth in the Prospectus; the Shares of the Company to be subscribed for in the Offering have been duly and validly authorized for issuance, and when issued and delivered by the Company pursuant to the plan of distribution against payment of the consideration calculated as set forth in the plan of distribution, will be fully paid and nonassessable; and the issuance of the Shares is not subject to preemptive rights.
v. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary action on the part of the Company and the Bank; and this Agreement constitutes a valid, legal and binding obligation of each of the Company and the Bank, enforceable in accordance with its terms, except to the extent that the provisions of Section 8 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally, or the rights of creditors of financial institutions insured by the FDIC (including the laws relating to the rights of the contracting parties to equitable remedies).
vi. Subject to the satisfaction of the conditions to the Regulatory Agencies’ approval of the Applications and the Federal Reserve’s approval of the Holding Company Application, no further approval, registration, authorization, consent or other order of any federal regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares and the consummation of the Offering.
vii. The Applications, as filed with the Regulatory Agencies, have been granted preliminary approval by the Regulatory Agencies. The Federal Reserve has issued its preliminary order of approval under the BHCA, and the purchase by the Company of all of the issued and outstanding capital stock of the Bank has been authorized by the Federal Reserve and no action has been taken, or to such counsel’s knowledge is pending or threatened, to revoke any such authorization or approval.
viii. The Registration Statement comply has been declared effective under the 1933 Act, no stop order suspending the effectiveness of the Registration Statement has been issued, and to the best of such counsel’s knowledge no proceedings for that purpose have been instituted or threatened.
ix. The consummation of the Offering and the transactions contemplated thereunder will have no material tax consequences to the Company, the Bank or any person subscribing for Shares in the Offering.
x. The terms and provisions of the Shares conform to the description thereof contained in the Registration Statement, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus and such description describes in all material respects the rights of the holders thereof, the information in the Registration Statement, any Preliminary Prospectus, and the Prospectus under the caption “Articles of Incorporation” (and any similar sections or information, if any, contained in any Permitted Free Writing Prospectus) to the extent that it constitutes matters of law or legal conclusions has been prepared by such counsel and is accurate in all material respects; and the forms of certificates proposed to be used to evidence the Shares are in due and proper form.
xi. At the time each of the Applications and the Holding Company Application was approved, such Application and Holding Company Application (as amended or supplemented) complied as to form in all material respects with the requirements of the Regulatory Agencies, the Federal Reserve and all applicable accounting laws, rules and regulations and decisions and orders of the Regulatory Agencies, except as modified or waived in writing by the Regulatory Agencies and the Federal Reserve, (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein as to which counsel need express no opinion and other than compliance with state securities or Blue Sky laws as to which such counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the Regulatory Agencies approving the Applications and the Holding Company Application.
xii. The Registration Statement complied when it became effective at the time of purchase of any Shares and as of the Closing Date, with the requirements of the 1933 Act and Act; each Preliminary Prospectus complied, at the related rules and regulations adopted by the Commission;
iii. For the purposes of providing such letter, ▇▇▇▇▇▇ ▇▇▇▇▇, LLC has read the fiscal 2008 minutes of meetings of shareholders, the Board of Directors and any committees of the Board of Directors of the Company, as set forth in the minute books as of a date within five days of the Effective Time, officials of the Company advising ▇▇▇▇▇▇ ▇▇▇▇▇, LLC that the minutes of all such meetings through that date were set forth therein; and
iv. Such additional statements relating to the unaudited quarterly financial statements of the Company subsequent to the date of Company’s most recent audited financial statements as the Agent may reasonably request.
f. At each Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and Chief Financial Officer of each of the Company and the Bank (if the Bank is capitalized at such time), dated the Closing Date, to the effect that (i) they have carefully examined the Prospectus and, as of its date, the date time it was filed with the Commission, and complies as of the applicable Closing Datedate hereof, in all material respects, with the requirements of the 1933 Act.
xiii. To the best of such counsel’s knowledge, there are no legal or governmental proceedings pending, or threatened (A) asserting the invalidity of this Agreement or (B) seeking to prevent the Offering.
xiv. The information in the Registration Statement, the Preliminary Prospectus and the Prospectus under the caption “Supervision and Regulation” (and any similar sections or information, if any, contained in any Permitted Free Writing Prospectus), to the extent that it constitutes matters of law, summaries and supervision of legal matters, documents or proceedings, or legal conclusions, has been prepared by such counsel and is accurate in all material respects (except as to the financial statements and other financial data included therein as to which such counsel need express no opinion).
xv. To the best of counsel’s knowledge, the Company and the Bank have obtained all material licenses, permits and other governmental authorizations (including preliminary approval from the MOFIS) required for the conduct of their respective businesses as described in the Registration Statement, the Preliminary Prospectuses, the Prospectus did and the Permitted Free Writing Prospectuses, if any, except where the failure to obtain such licenses, permits and other governmental authorizations would not contain have a material adverse effect on the financial condition of the Company or the Bank considered as one enterprise, or on the earnings, capital, properties or business affairs of the Company or the Bank considered as one enterprise, and all such licenses, permits and other governmental authorizations (including preliminary approval from the MOFIS), are in full force and effect and the Company and the Bank are in all material respects complying therewith.
xvi. Neither the Company nor the Bank is in violation of its Articles of Incorporation or its Articles of Association, as applicable, or its Bylaws, respectively, or to the best of such counsel’s knowledge, in violation of any material obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, loan agreement, note, lease or other instrument to which it is a party or by which it or its property may be bound, which violation would have a material adverse effect on the financial condition of the Company or the Bank considered as one enterprise, or on the earnings, capital, properties or business affairs of the Company and the Bank considered as one enterprise; the execution and delivery of this Agreement by the Company and the Bank, the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein, will not materially conflict with, constitute a material breach of, or default under, or result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Company or the Bank which are material to their business considered as one enterprise, pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or the Bank 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 the Bank is subject. In addition, such action will not result in any material violation of the provisions of the certificate of incorporation or bylaws of the Company or the Bank or any material violation of any applicable law, act, regulation or to such counsel’s knowledge, order or court order, writ, injunction or decree.
xvii. To the best of counsel’s knowledge, the Company and the Bank are not in violation in any material respect of any directive from any Regulatory Agency to make any material change in the method of conducting their business.
e. The letter of Hunton & ▇▇▇▇▇▇▇▇ LLP in form and substance to the effect that:
i. In addition, during the preparation of the Registration Statement, the Preliminary Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if any, Hunton & ▇▇▇▇▇▇▇▇ LLP participated in conferences with certain officers of and other representatives of the Bank and the Company, counsel to the Agent, representatives of the independent public accountants for the Bank and the Company and representatives of the Agent at which the contents of the Registration Statement, the Preliminary Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if any, and related matters were discussed and, although Hunton & ▇▇▇▇▇▇▇▇ LLP are not passing upon and do not assume the accuracy of the statements contained in the Registration Statement, the Preliminary Prospectuses, the Prospectus or the Permitted Free Writing Prospectuses, on the basis of the foregoing without independent verification (relying as to materiality as to factual matters on certificates of officers and other factual representations by the Bank and the Company), nothing has come to the attention of Hunton & ▇▇▇▇▇▇▇▇ LLP that caused Hunton & ▇▇▇▇▇▇▇▇ LLP to believe that the Registration Statement (other than the financial statements and schedules, the notes thereto and the auditors’ report thereon and the other financial and accounting data included therein, or omitted therefrom, and the exhibits thereto), at the time of the filing of the Prospectus with the Commission (which you have been informed is at or prior to the time of first sale of the Shares by the Company) included an untrue statement of a material fact or omit omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or that the Prospectus (other than the financial statements and schedules, the notes thereto and the auditors’ report thereon and the other financial and accounting data included therein, or omitted therefrom, and the exhibits thereto), as of its date and as of the date of counsel’s opinion, 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; , or that any Preliminary Prospectus or Permitted Free Writing Prospectus (ii) there has not beenother than the financial statements and schedules, since the respective dates notes thereto and the auditors’ report thereon and the other financial and accounting data included therein, or omitted therefrom, and the exhibits thereto), as of which information is given in the Prospectus, any material adverse change in the financial condition or in the management, earnings, capital, properties, business prospects or business affairs of the Company or the Bank, considered as one enterprise, whether or not arising in the ordinary course of business; (iii) the representations and warranties contained in Section 3 of this Agreement are true and correct in all material respects with the same force and effect as though made at and as of such Closing Date; (iv) the Company and the Bank have complied in all material respects with all material agreements and satisfied all conditions on its part to be performed or satisfied at or prior to such Closing Date including the conditions contained in this Section 8; (v) no stop order has been issued or, to their knowledge, is threatened, by the Commission, a Regulatory Agency, the Federal Reserve or any other governmental body; (vi) no order suspending the Offering, the acquisition of all of the shares of the Bank by the Company or the effectiveness of the Prospectus has been issued and to their knowledge, no proceedings for any such purpose have been initiated or threatened by any Regulatory Agency, the Federal Reserve or any other federal or state authority; and (vii) to their knowledge, no person has sought to obtain regulatory or judicial review of the action of the OCC, the FDIC or the Federal Reserve in granting preliminary approval of the Applications or the Holding Company Application.
g. Neither the Company nor the Bank shall have sustained since the date of the latest audited financial statements first sale, included an untrue statement of a material fact or omitted to state a material fact necessary in the Registration Statement or the Prospectus, any material 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, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any material change in the long-term debt of the Company or the Bank or any material change, or any development, involving a prospective material change in or affecting the general affairs of the management, financial position, shareholders’ equity (deficit) or results of operations of the Company or the Bank, otherwise than as set forth in or contemplated by the Registration Statement and the Prospectus, the effect of which, in any such case described above, is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the sale of the Shares on the terms and in the manner contemplated in the Prospectus.
h. Prior to and at each Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the management, financial condition, earnings, capital, properties or business affairs of the Company or the Bank independently, or of the Company and the Bank, considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, except as referred to therein or contemplated thereby; (ii) there shall have been no material transaction entered into by the Company and the Bank, considered as one enterprise, from the latest date as of which the financial condition of the Company or the Bank is set forth in the Prospectus other than transactions referred to or contemplated therein; (iii) the Company or the Bank shall not have received from the OCC, the Federal Reserve or the FDIC any direction (oral or written) to make any material change in the method of conducting their respective businesses with which they have not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would reasonably be expected to have a Material Adverse Effect; (iv) neither the Company nor the Bank shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (v) no action, suit or proceedings, at law or in equity or before or by any federal or state commission, board or other administrative agency, shall be pending or, to the knowledge of the Chief Executive Officer of the Company or the Bank, threatened against the Company or the Bank or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; and (vi) the Shares shall have been qualified or registered for offering and sale under the securities or Blue Sky Laws of the jurisdictions as to which the Company and the Agent shall have agreed.
i. At or prior to such Closing Date, the Agent shall receive (i) a copy of the letters from the OCC and the FDIC granting preliminary approval of the Applications, (ii) a copy of the order from the Commission declaring the Registration Statement effective, (iii) a certificate of existence from the State of South Carolina evidencing the existence of the Company and (iv) a copy of the letter from the Federal Reserve granting preliminary approval of the Holding Company Application.
j. Subsequent to the date hereof, there shall not have occurred any of the following: (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange or American Stock Exchange or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or FINRA or by order of the Commission or any other governmental authority; or (ii) a general moratorium on the operations of commercial banks or other federally-insured financial institutions or general moratorium on the withdrawal of deposits from commercial banks or other federally-insured financial institutions declared by either federal or state authorities if the effect of either of (i) or (ii) herein, in the Agent’s reasonable judgment, makes it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus and the Agent shall have promptly notified the Company of such event.
k. FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the terms of this Agreement and Agent’s compensation hereunder.
l. Upon the Bank’s capitalization, provided the Commencement Date has occurred without this Agreement having been terminated, the Company shall, or shall have caused the Bank to, deliver the Assumption Agreement duly executed by the Bank to the Agent as contemplated by Section 6(s) hereof.statement
Appears in 1 contract
Conditions to Obligations of the Agent. The obligations of the Agent hereunder and the occurrence of the Closing of the Offering are subject subject, in its discretion, to the condition that all representations and warranties and other statements of the Company are, at and as of the commencement of the Offering and at and as of the applicable Closing Date, true and correct in all material respects and the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed, and the following additional conditions:
a. (a) No Prospectus or amendment or supplement to the Registration Statement or the Prospectus shall have been filed to which the Agent shall have objected in writing.
b. (b) The Registration Statement and any registration statement required to be filed, prior to the sale of the Shares, under the 1933 Act pursuant to Rule 424(b) shall have been filed and shall have become effective under the 1933 Act.
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings initiated under Section 8(d) or 8(e) of the 1933 Act; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein in light of the circumstances under which they are made, not misleading; and (iii) none of the Prospectus Preliminary Prospectuses or any the Prospectus, and no amendment or supplement thereto thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(d) Jenkens & ▇. ▇▇▇▇▇▇▇▇, P.C., counsel for the Agent, shall have furnished to the Agent such opinion or opinions, dated the Closing Date, with respect to the incorporation of the Company, the validity of the Shares being issued on the Closing Date, the Registration Statement, the Prospectus, and other related matters as the Agent 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;
(e) ▇▇▇▇▇▇ Law Firm, P.A.▇▇▇▇▇▇▇ ▇▇▇▇▇ & Scarborough LLP, counsel for the Company, shall have furnished to the Agent its their written opinion, dated as of each the Closing Date, in form and substance satisfactory to the Agent, substantially to the effect set forth in Appendix 6 Exhibit B hereto; in rendering the opinions required by this section, such counsel, with the consent of Agent’s counsel, may rely, as to matters of fact, upon certificates and representations of officers of the Company and on certificates of public officials.
e. (f) At the time of the execution of this Agreement, the Agent shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇, LLC a letter dated such date, in form and substance satisfactory to the Agent to the effect that:
i. (i) ▇▇▇▇▇▇ ▇▇▇▇▇, LLC are independent certified public accountants with respect to the Company within the meaning of the 1933 Act and the applicable published rules and regulations adopted by the Commission and the PCAOB;
(ii. ) In the opinion of ▇▇▇▇▇▇ ▇▇▇▇▇, LLC, the financial statements audited by ▇▇▇▇▇▇ ▇▇▇▇▇, LLC and included in the Registration Statement comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and the related rules and regulations adopted by the Commission;
(iii. ) For the purposes of providing such letter, ▇▇▇▇▇▇ ▇▇▇▇▇, LLC has read the fiscal 2008 2005 minutes of meetings of shareholders, the Board of Directors and any committees of the Board of Directors of the Company, as set forth in the minute books as of a date within five days of the Effective Time, officials of the Company advising ▇▇▇▇▇▇ ▇▇▇▇▇, LLC that the minutes of all such meetings through that date were set forth therein; and
(iv. ) Such additional statements relating to the unaudited quarterly financial statements of the Company subsequent to the date of Company’s most recent audited financial statements December 31, 2005 as the Agent may reasonably request.
f. At each Closing Date, (g) The Company shall have furnished or caused to be furnished to the Agent shall receive on the Closing Date a certificate of officers of the Chief Executive Officer Company, satisfactory to the Agent as to the accuracy of the representations and Chief Financial Officer of each warranties of the Company herein at and the Bank (if the Bank is capitalized at such time), dated as of the Closing Date, as to the effect that (i) they have carefully examined performance by the Prospectus and, as Company of all of its date, the date it was filed with the Commission, and the applicable Closing Date, the Prospectus did not contain any untrue statement of a material fact or omit 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; (ii) there has not been, since the respective dates as of which information is given in the Prospectus, any material adverse change in the financial condition or in the management, earnings, capital, properties, business prospects or business affairs of the Company or the Bank, considered as one enterprise, whether or not arising in the ordinary course of business; (iii) the representations and warranties contained in Section 3 of this Agreement are true and correct in all material respects with the same force and effect as though made at and as of such Closing Date; (iv) the Company and the Bank have complied in all material respects with all material agreements and satisfied all conditions on its part obligations hereunder to be performed or satisfied at or prior to such the Closing Date including Date, as to the conditions contained matters set forth in subsections (a) and (l) of this Section 8; and as to such other matters as the Agent shall reasonably request.
(vh) no stop order has been issued or, to their knowledge, is threatened, by the Commission, a Regulatory Agency, the Federal Reserve or any other governmental body; (vi) no order suspending the Offering, the acquisition of all of the shares of the Bank by the The Company or the effectiveness of the Prospectus has been issued and to their knowledge, no proceedings for any such purpose have been initiated or threatened by any Regulatory Agency, the Federal Reserve or any other federal or state authority; and (vii) to their knowledge, no person has sought to obtain regulatory or judicial review of the action of the OCC, the FDIC or the Federal Reserve in granting preliminary approval of the Applications or the Holding Company Application.
g. Neither the Company nor the Bank shall not have sustained since the date of the latest audited financial statements included in the Registration Statement or the and Prospectus, any material 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, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is are given in the Registration Statement and the Prospectus, there shall not have been any material change in the long-term debt of the Company or the Bank or any material change, or any development, involving a prospective material change in or affecting the general affairs of the management, financial position, shareholders’ shareholder’s equity (deficit) or results of operations of the Company or the Bank, otherwise than as set forth in or contemplated by in the Registration Statement and the Prospectus, the effect of which, in any such case described above, is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the sale delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
h. (i) Prior to and at each the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the management, financial condition, condition or in the earnings, capital, properties or business affairs of the Company or the Bank independently, or of the Company and the Bank, considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, except as referred to therein or contemplated therebytherein; (ii) there shall have been no material transaction entered into by the Company and the Bank, considered as one enterprise, from the latest date as of which the financial condition of the Company or the Bank is set forth in the Prospectus other than transactions referred to or contemplated therein; (iii) the Company or the Bank shall not have received from the OCCBFI, the Federal Reserve or the FDIC any direction (oral or written) to make any material change in the method of conducting their respective businesses business with which they have it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would reasonably be expected to have a Material Adverse Effectmaterial and adverse effect on the management, condition (financial or otherwise) or on the earnings, capital, properties or business affairs of the Company or the Bank considered as one enterprise; (iv) neither the Company nor the Bank shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (v) no action, suit or proceedings, at law or in equity or before or by any federal or state commission, board or other administrative agency, shall be pending or, to the knowledge of the Chief Executive Officer of the Company or the Bank, threatened against the Company or the Bank or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effectmaterial and adverse effect on the management, financial condition or on the earnings, capital, properties or business affairs of the Company or the Bank, considered as one enterprise; and (vi) the Shares shall have been qualified or registered for offering and sale under the securities or Blue Sky Laws blue sky laws of the jurisdictions as to which the Company and the Agent shall have agreed.
i. (j) At or prior to such the Closing Date, the Agent shall receive (i) a copy of the letters from the OCC Office of the South Carolina Board of Financial Institutions and the FDIC granting preliminary approval of the Applications, (ii) a copy of the order from the Commission declaring the Registration Statement effective, (iii) a certificate of existence good standing from the State of South Carolina evidencing the existence good standing of the Company and (iv) a copy of the letter from the Federal Reserve granting preliminary approval of the Holding Company Application.
j. (k) Subsequent to the date hereof, there shall not have occurred any of the following: (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange or American Stock Exchange or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or FINRA the NASD or by order of the Commission or any other governmental authority; or (ii) a general moratorium on the operations of commercial banks or other federally-insured financial institutions or general moratorium on the withdrawal of deposits from commercial banks or other federally-insured financial institutions declared by either federal or state authorities authorities; (iii) the engagement by the United States in hostilities which have resulted in the declaration, on or after the date hereof, of a national emergency or war; or (iv) a material decline in the price of equity or debt securities if the effect of either any of (i) or through (iiiv) herein, in the Agent’s reasonable judgment, makes it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus and the Agent shall have promptly notified the Company of such eventProspectus.
k. FINRA shall have (l) The NASD has confirmed that it has not raised any objection with respect to the fairness and reasonableness of the terms of this Agreement and Agent’s compensation hereunder.
l. Upon the Bank’s capitalization, provided the Commencement Date has occurred without this Agreement having been terminated, the Company shall, or shall have caused the Bank to, deliver the Assumption Agreement duly executed by the Bank to the Agent as contemplated by Section 6(s) hereof.
Appears in 1 contract
Conditions to Obligations of the Agent. The obligations of the Agent hereunder and the occurrence of the Closing of the Offering are subject subject, in its discretion, to the condition that all representations and warranties and other statements of the Company and the Bank are, at and as of the commencement of the Offering and at and as of the applicable Closing Date, true and correct in all material respects and the condition that the Company and the Bank shall have performed in all material respects all of its their respective obligations hereunder theretofore to be performed, and the following additional conditions:
a. (a) No Prospectus or amendment or supplement to the Registration Statement or the Prospectus Disclosure Document shall have been filed to which the Agent shall have objected in writing.
b. (b) The Registration Statement and any registration statement required to be filed, prior to the sale of the Shares, under the 1933 Act pursuant to Rule 424(b) shall have been filed and shall have become effective under the 1933 Act.
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings initiated under Section 8(d) or 8(e) of the 1933 Act; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein in light of the circumstances under which they are made, not misleading; and (iii) none of the Prospectus or any Disclosure Documents, and no amendment or supplement thereto thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
▇. (d) Jenkens & ▇▇▇▇▇▇ Law Firm▇▇▇▇, P.A.a Professional Corporation, counsel for the Agent, shall have furnished to you such opinion or opinions, dated the Closing Date, 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;
(e) Jenkens & ▇▇▇▇▇▇▇▇▇, a Professional Corporation., counsel for the Company, shall have furnished to the Agent its you their written opinion, dated as of each the Closing Date, in form and substance satisfactory to Agent to the effect that:
(i) The Company is a corporation organized and validly existing and in good standing under the laws of the State of Michigan, with corporate power and authority to own its properties and to conduct its business as described in the Disclosure Documents.
(ii) Upon receipt of final approval of the MOFIS, the Bank will be organized and validly existing Michigan banking association with full power and authority to own its properties and to conduct its business as described in the Disclosure Documents; the activities of the Bank as described in the Disclosure Documents are permitted by the rules, regulations and practices of the Regulatory Agencies and the Federal Reserve; the issuance and sale of the capital stock of the Bank to the Company has been duly and validly authorized by all necessary corporate action on the part of the Company and the Bank and, upon payment therefore as described in the Prospectus, will be validly issued, fully paid and nonassessable; and will be owned of record and beneficially by the Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) Upon receipt of final FDIC approval, the deposit accounts of the Bank will be insured by the FDIC up to the maximum amount allowed by law and to such counsel’s knowledge no proceedings for the termination or revocation of such insurance are pending or threatened.
(iv) Upon the completion of the Offering, the authorized, issued and outstanding capital stock of the Company will be as set forth in the Registration Statement, the Preliminary Prospectus, and the Prospectus under the caption “Capitalization,” (and any similar sections or information, if any, contained in any Permitted Free Writing Prospectus) and no Shares or warrants have been or will be issued and outstanding prior to the Closing Date, other than as set forth in the Prospectus; the Shares of the Company to be subscribed for in the Offering have been validly authorized for issuance, and when issued and delivered by the Company pursuant to the plan of distribution against payment of the consideration calculated as set forth in the plan of distribution, will be fully paid and nonassessable; and the issuance of the Shares is not subject to preemptive rights.
(v) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been authorized by all necessary action on the part of the Company; and this Agreement constitutes a valid, legal and binding obligation of the Company, enforceable in accordance with its terms, except to the extent that the provisions of Section 8 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally.
(vi) Subject to the satisfaction of the conditions to the Regulatory Agencies’ approval of the Applications and the Federal Reserve’s approval of the Holding Company Application, no further approval, registration, authorization, consent or other order of any federal regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares and the consummation of the Offering.
(vii) The Applications, as filed with the Regulatory Agencies, have been granted preliminary approval by the Regulatory Agencies. The Federal Reserve has issued its preliminary order of approval under the BHCA, and the purchase by the Company of all of the issued and outstanding capital stock of the Bank has been authorized by the Federal Reserve and no action has been taken, or to such counsel’s knowledge is pending or threatened, to revoke any such authorization or approval.
(viii) The Registration Statement has been declared effective under the 1933 Act, no stop order suspending the effectiveness of the Registration Statement has been issued, and to the best of such counsel’s knowledge no proceedings for that purpose have been instituted or threatened.
(ix) The consummation of the Offering and the transactions contemplated thereunder will not cause the Company or any person subscribing for Shares in the Offering to recognize gain or loss as a result of the purchase of Shares pursuant to the Offering.
(x) The terms and provisions of the Shares conform to the description thereof contained in the Disclosure Documents and such description describes in all material respects the rights of the holders thereof, the information in the Registration Statement, any Preliminary Prospectus, and the Prospectus under the caption “Articles of Incorporation” (and any similar sections or information, if any, contained in any Permitted Free Writing Prospectus) to the extent that it constitutes matters of law or legal conclusions has been prepared by such counsel and is accurate in all material respects; and the forms of certificates proposed to be used to evidence the Shares are in due and proper form.
(xi) At the time each of the Applications and the Holding Company Application was approved, such Application and Holding Company Application (as amended or supplemented) complied as to form in all material respects with the requirements of the Regulatory Agencies, the Federal Reserve and all applicable laws, rules and regulations and decisions and orders of the Regulatory Agencies, except as modified or waived in writing by the Regulatory Agencies and the Federal Reserve, (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein as to which counsel need express no opinion and other than compliance with state securities or Blue Sky laws as to which such counsel need express no opinion). To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the Regulatory Agencies approving the Applications and the Holding Company Application.
(xii) The Registration Statement complied when it became effective at each time of purchase of any Shares and as of the Closing Date, with the requirements of the 1933 Act; each Preliminary Prospectus complied, at the time it was filed with the Commission, and complies as of the date hereof, in all material respects, with the requirements of the 1933 Act.
(xiii) To the best of such counsel’s knowledge, there are no legal or governmental proceedings pending, or threatened (A) asserting the invalidity of this Agreement or (B) seeking to prevent the Offering.
(xiv) To the best of counsel’s knowledge, the Company and the Bank have obtained all material licenses, permits and other governmental authorizations (including preliminary approval from the MOFIS and the FDIC) required for the conduct of their respective businesses as described in the Disclosure Documents, and all such licenses, permits and other governmental authorizations (including preliminary approval from the MOFIS), are in full force and effect and the Company and the Bank are in all material respects complying therewith.
(xv) Neither the Company nor the Bank is in violation of its Articles of Incorporation or its Articles of Association, as applicable, or its Bylaws, respectively, or to the best of such counsel’s knowledge, in violation of any material obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, loan agreement, note, lease or other instrument to which it is a party or by which it or its property may be bound, which violation would have a Material Adverse Effect; the execution and delivery of this Agreement by the Company, the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein, will not materially conflict with, constitute a material breach of, or default under, or result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Company or the Bank which are material to their business considered as one enterprise, pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or the Bank 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 the Bank is subject. In addition, such action will not result in any material violation of the provisions of the certificate of incorporation or bylaws of the Company or the Bank or any material violation of any applicable law, act, regulation or to such counsel’s knowledge, order or court order, writ, injunction or decree.
(f) The letter of Jenkens & ▇▇▇▇▇▇▇▇▇, P.C. in form and substance to the effect that:
(i) In addition, during the preparation of the Disclosure Documents, Jenkens & ▇▇▇▇▇▇▇▇▇, P.C. participated in conferences with certain officers of and other representatives of the Bank and the Company, counsel to the Agent, substantially representatives of the independent public accountants for the Bank and the Company and representatives of the Agent at which the contents of the Disclosure Documents, and related matters were discussed and, although Jenkens & ▇▇▇▇▇▇▇▇▇, P.C. are not passing upon and do not assume the accuracy of the statements contained in the Disclosure Documents, on the basis of the foregoing without independent verification (relying as to materiality as to factual matters on certificates of officers and other factual representations by the Bank and the Company), nothing has come to the effect set forth attention of Jenkens & ▇▇▇▇▇▇▇▇▇, P.C. that caused Jenkens & ▇▇▇▇▇▇▇▇▇, P.C. to believe that the Registration Statement (other than the financial statements and schedules, the notes thereto and the auditors’ report thereon and the other financial and accounting data included therein, or omitted therefrom, and the exhibits thereto), at the time of the filing of the Prospectus with the Commission (which you have been informed is at or prior to the time of first sale of the Shares by the Company) included an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in Appendix 6 hereto; order to make the statements therein not misleading, or that the Prospectus (other than the financial statements and schedules, the notes thereto and the auditors’ report thereon and the other financial and accounting data included therein, or omitted therefrom, and the exhibits thereto), as of its date and as of the date of counsel’s opinion, 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, or that any Preliminary Prospectus or Permitted Free Writing Prospectus (other than the financial statements and schedules, the notes thereto and the auditors’ report thereon and the other financial and accounting data included therein, or omitted therefrom, and the exhibits thereto), as of the date of first sale, included an untrue statement of a material fact or omitted 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.
(ii) The opinion shall be limited to matters governed by the laws of the United States or the State of Michigan. In rendering the opinions required by this sectionsuch opinion, such counselcounsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States or Michigan, with to the consent extent such counsel deems proper and specified in such opinion, upon the opinion of Agent’s counselother counsel of good standing, as long as such other opinion indicates that the Agent may relyrely on the opinion, and (B) as to matters of fact, upon to the extent such counsel deems proper, on certificates and representations of responsible officers of the Company and on the Bank and public officials; provided copies of any such opinion(s) or certificates of public officialsofficials are delivered to you together with the opinion to be rendered hereunder by special counsel to the Company and the Bank. The opinion of such counsel for the Company shall state that it has no reason to believe that you are not justified in relying thereon. Where any of the foregoing opinions refers to the knowledge of counsel, such counsel may state that their opinion is limited to the actual knowledge of attorneys actively involved in the transactions contemplated by this agreement or in the preparation of the opinion letter required by this subsection (f). Counsel to the Company may render its opinions subject to customary qualifications and exceptions.
e. (g) At the time of the execution of this Agreement, the Agent shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇UHY Advisors MI, LLC Inc. a letter dated such date, in form and substance satisfactory to the Agent to the effect that:
i. ▇▇▇▇▇▇ ▇▇▇▇▇(i) UHY Advisors MI, LLC Inc. are independent certified public accountants with respect to the Company within the meaning of the 1933 Act and the applicable published rules and regulations adopted by the Commission and the PCAOB;
(ii. ) In the opinion of ▇▇▇▇▇▇ ▇▇▇▇▇UHY Advisors MI, LLC, Inc. the financial statements audited by ▇▇▇▇▇▇ ▇▇▇▇▇UHY Advisors MI, Inc., LLC and included in the Registration Statement comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and the related rules and regulations adopted by the Commission;
(iii. ) For the purposes of providing such letter, ▇▇▇▇▇▇ ▇▇▇▇▇UHY Advisors MI, LLC Inc. has read the fiscal 2008 2005 minutes of meetings of shareholders, the Board of Directors and any committees of the Board of Directors of the Company, as set forth in the minute books as of a date within five days of the Effective Time, officials of the Company advising ▇▇▇▇▇▇ ▇▇▇▇▇UHY Advisors MI, LLC Inc. that the minutes of all such meetings through that date were set forth therein; and
(iv. ) Such additional statements relating to the unaudited quarterly financial statements of the Company subsequent to the date of Company’s most recent audited financial statements December 31, 2005 as the Agent may reasonably request.
f. (h) At each the Closing Date, the Agent shall have received from UHY Advisors MI, Inc. a letter, dated as of Closing Date, 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 three business days prior to the Closing Date.
(i) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and Chief Financial Officer of each of the Company and the Bank (if the Bank is capitalized at such time), dated the Closing Date, to the effect that (i) they have carefully examined the Prospectus and, as of its date, the date it was filed with the Commission, and the applicable Closing Date, the Prospectus did not contain any untrue statement of a material fact or omit 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; (ii) there has not been, since the respective dates as of which information is given in the Prospectus, any material adverse change in the financial condition or in the management, earnings, capital, properties, business prospects or business affairs of the Company or the Bank, considered as one enterprise, whether or not arising in the ordinary course of business; (iii) the representations and warranties contained in Section 3 of this Agreement are true and correct in all material respects with the same force and effect as though made at and as of such Closing Date; (iv) the Company and the Bank have complied in all material respects with all material agreements and satisfied all conditions on its part to be performed or satisfied at or prior to such Closing Date including the conditions contained in this Section 8; (v) no stop order has been issued or, to their knowledge, is threatened, by the Commission, a Regulatory Agency, the Federal Reserve or any other governmental body; (vi) no order suspending the Offering, the acquisition of all of the shares of the Bank by the Company or the effectiveness of the Prospectus has been issued and to their knowledge, no proceedings for any such purpose have been initiated or threatened by any Regulatory Agency, the Federal Reserve or any other federal or state authority; and (vii) to their knowledge, no person has sought to obtain regulatory or judicial review of the action of the OCC, the FDIC or the Federal Reserve in granting preliminary approval of the Applications or the Holding Company Application.
g. Neither the Company nor the Bank shall have sustained since the date of the latest audited financial statements included in the Registration Statement or the Prospectus, any material 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, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any material change in the long-term debt of the Company or the Bank or any material change, or any development, involving a prospective material change in or affecting the general affairs of the management, financial position, shareholders’ equity (deficit) or results of operations of the Company or the Bank, otherwise than as set forth in or contemplated by the Registration Statement and the Prospectus, the effect of which, in any such case described above, is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the sale of the Shares on the terms and in the manner contemplated in the Prospectus.
h. Prior to and at each Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the management, financial condition, earnings, capital, properties or business affairs of the Company or the Bank independently, or of the Company and the Bank, considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, except as referred to therein or contemplated thereby; (ii) there shall have been no material transaction entered into by the Company and the Bank, considered as one enterprise, from the latest date as of which the financial condition of the Company or the Bank is set forth in the Prospectus other than transactions referred to or contemplated therein; (iii) the Company or the Bank shall not have received from the OCC, the Federal Reserve or the FDIC any direction (oral or written) to make any material change in the method of conducting their respective businesses with which they have not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would reasonably be expected to have a Material Adverse Effect; (iv) neither the Company nor the Bank shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (v) no action, suit or proceedings, at law or in equity or before or by any federal or state commission, board or other administrative agency, shall be pending or, to the knowledge of the Chief Executive Officer of the Company or the Bank, threatened against the Company or the Bank or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; and (vi) the Shares shall have been qualified or registered for offering and sale under the securities or Blue Sky Laws of the jurisdictions as to which the Company and the Agent shall have agreed.
i. At or prior to such Closing Date, the Agent shall receive (i) a copy of the letters from the OCC and the FDIC granting preliminary approval of the Applications, (ii) a copy of the order from the Commission declaring the Registration Statement effective, (iii) a certificate of existence from the State of South Carolina evidencing the existence of the Company and (iv) a copy of the letter from the Federal Reserve granting preliminary approval of the Holding Company Application.
j. Subsequent to the date hereof, there shall not have occurred any of the following: (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange or American Stock Exchange or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or FINRA or by order of the Commission or any other governmental authority; or (ii) a general moratorium on the operations of commercial banks or other federally-insured financial institutions or general moratorium on the withdrawal of deposits from commercial banks or other federally-insured financial institutions declared by either federal or state authorities if the effect of either of (i) or (ii) herein, in the Agent’s reasonable judgment, makes it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus and the Agent shall have promptly notified the Company of such event.
k. FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the terms of this Agreement and Agent’s compensation hereunder.
l. Upon the Bank’s capitalization, provided the Commencement Date has occurred without this Agreement having been terminated, the Company shall, or shall have caused the Bank to, deliver the Assumption Agreement duly executed by the Bank to the Agent as contemplated by Section 6(s) hereof.certifica
Appears in 1 contract
Conditions to Obligations of the Agent. The obligations of the Agent hereunder and the occurrence of the Closing of the Offering are subject subject, in its discretion, to the condition that all representations and warranties and other statements of the Company and the Bank are, at and as of the commencement of the Offering and at and as of the applicable Closing Date, true and correct in all material respects and the condition that the Company and the Bank shall have performed in all material respects all of its their respective obligations hereunder theretofore to be performed, and the following additional conditions:
a. (a) No Prospectus or amendment or supplement to the Registration Statement or the Prospectus Disclosure Document shall have been filed to which the Agent shall have objected in writing.
b. (b) The Registration Statement and any registration statement required to be filed, prior to the sale of the Shares, under the 1933 Act pursuant to Rule 424(b) shall have been filed and shall have become effective under the 1933 Act.
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings initiated under Section 8(d) or 8(e) of the 1933 Act; and (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein in light of the circumstances under which they are made, not misleading; and (iii) none of the Prospectus or any Disclosure Documents (iii) no Disclosure Package, and no amendment or supplement thereto thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading.
▇. ▇▇▇▇▇▇ Law Firm, P.A., counsel for the Company, shall have furnished to the Agent its written opinion, dated as of each Closing Date, in form and substance satisfactory to the Agent, substantially to the effect set forth in Appendix 6 hereto; in rendering the opinions required by this section, such counsel, with the consent of Agent’s counsel, may rely, as to matters of fact, upon certificates and representations of officers of the Company and on certificates of public officials.
e. At the time of the execution of this Agreement, the Agent shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇, LLC a letter dated such date, in form and substance satisfactory to the Agent to the effect that:
i. ▇▇▇▇▇▇ ▇▇▇▇▇, LLC are independent certified public accountants with respect to the Company within the meaning of the 1933 Act and the applicable published rules and regulations adopted by the Commission and the PCAOB;
ii. In the opinion of ▇▇▇▇▇▇ ▇▇▇▇▇, LLC, the financial statements audited by ▇▇▇▇▇▇ ▇▇▇▇▇, LLC and included in the Registration Statement comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and the related rules and regulations adopted by the Commission;
iii. For the purposes of providing such letter, ▇▇▇▇▇▇ ▇▇▇▇▇, LLC has read the fiscal 2008 minutes of meetings of shareholders, the Board of Directors and any committees of the Board of Directors of the Company, as set forth in the minute books as of a date within five days of the Effective Time, officials of the Company advising ▇▇▇▇▇▇ ▇▇▇▇▇, LLC that the minutes of all such meetings through that date were set forth therein; and
iv. Such additional statements relating to the unaudited quarterly financial statements of the Company subsequent to the date of Company’s most recent audited financial statements as the Agent may reasonably request.
f. At each Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and Chief Financial Officer of each of the Company and the Bank (if the Bank is capitalized at such time), dated the Closing Date, to the effect that (i) they have carefully examined the Prospectus and, as of its date, the date it was filed with the Commission, and the applicable Closing Date, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were are made, not misleading; .
(d) Jenkens & ▇▇▇▇▇▇▇▇▇, a Professional Corporation, counsel for the Agent, shall have furnished to you such opinion or opinions, dated the Closing Date, with respect to the incorporation of the Company, the validity of the Shares being issued on the Closing Date, the Registration Statement, the Prospectus, and other related 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;
(e) Dinur & Associates, P.C., counsel for the Company, shall have furnished to you their written opinion, dated as of the Closing Date, in form and substance satisfactory to the Agent to the effect that:
(i) The Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Texas, with corporate power and authority to own its properties and to conduct its business as described in the Disclosure Documents.
(ii) there Upon receipt of final approval of the Texas Department of Banking, the Bank will be a duly organized and validly existing Texas banking association with full power and authority to own its properties and to conduct its business as described in the Disclosure Documents; the activities of the Bank as DALLAS2 1154490v4 49418-00015 described in the Disclosure Documents are permitted by the rules, regulations and practices of the Regulatory Agencies and the Federal Reserve; the issuance and sale of the capital stock of the Bank to the Company has not beenbeen duly and validly authorized by all necessary corporate action on the part of the Company and the Bank and, since the respective dates upon payment therefore as of which information is given described in the Prospectus, will be validly issued, fully paid and nonassessable; and will be owned of record and beneficially by the Company, free and clear of any material adverse change in mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) Upon receipt of final FDIC approval, the financial condition deposit accounts of the Bank will be insured by the FDIC up to the maximum amount allowed by law and to such counsel's knowledge no proceedings for the termination or in revocation of such insurance are pending or threatened.
(iv) Upon the managementcompletion of the Offering, earningsthe authorized, capital, properties, business prospects or business affairs issued and outstanding capital stock of the Company or and the Bank, considered Bank will be as one enterprise, whether or not arising set forth in the ordinary course of business; Registration Statement, the Preliminary Prospectus, and the Prospectus under the caption "Capitalization," (iii) the representations and warranties any similar sections or information, if any, contained in Section 3 any Permitted Free Writing Prospectus) and no shares of Common Stock or attached warrants have been or will be issued and outstanding prior to the Closing Date, other than as set forth in the Prospectus; the Shares of the Company to be subscribed for in the Offering have been duly and validly authorized for issuance, and when issued and delivered by the Company pursuant to the plan of distribution against payment of the consideration calculated as set forth in the plan of distribution, will be fully paid and nonassessable; and the issuance of the Shares is not subject to preemptive rights.
(v) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary action on the part of the Company; and this Agreement constitutes a valid, legal and binding obligation of the Company, enforceable in accordance with its terms, except to the extent that the provisions of Section 8 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors' rights generally.
(vi) Subject to the satisfaction of the conditions to the Regulatory Agencies' approval of the Applications and the Federal Reserve's approval of the Holding Company Application, no further approval, registration, authorization, consent or other order of any federal regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares and the consummation of the Offering.
(vii) The Applications, as filed with the Regulatory Agencies, have been granted preliminary approval by the Regulatory Agencies. The Federal Reserve has issued its preliminary order of approval under the BHCA, and the purchase by the Company of all of the issued and outstanding capital stock of the DALLAS2 1154490v4 49418-00015 Bank has been authorized by the Federal Reserve and no action has been taken, or to such counsel's knowledge is pending or threatened, to revoke any such authorization or approval.
(viii) The Registration Statement has been declared effective under the 1933 Act, no stop order suspending the effectiveness of the Registration Statement has been issued, and to the best of such counsel's knowledge no proceedings for that purpose have been instituted or threatened.
(ix) The consummation of the Offering and the transactions contemplated thereunder will not cause the Company or any person subscribing for Shares in the Offering to recognize gain or loss as a result of the purchase of the Shares pursuant to the Offering.
(x) The terms and provisions of the Shares conform to the description thereof contained in the Disclosure Documents and such description describes in all material respects the rights of the holders thereof, the information in the Disclosure Documents under the caption "Articles of Incorporation" (and any similar sections or information, if any, to the extent that it constitutes matters of law or legal conclusions has been prepared by such counsel and is accurate in all material respects; and the forms of certificates proposed to be used to evidence the Shares are true in due and correct proper form.
(xi) At the time each of the Applications and the Holding Company Application was approved, such Application and Holding Company Application (as amended or supplemented) complied as to form in all material respects with the same force and effect as though made at and as requirements of such Closing Date; (iv) the Company and the Bank have complied in all material respects with all material agreements and satisfied all conditions on its part to be performed or satisfied at or prior to such Closing Date including the conditions contained in this Section 8; (v) no stop order has been issued or, to their knowledge, is threatened, by the Commission, a Regulatory AgencyAgencies, the Federal Reserve or any other governmental body; (vi) no order suspending the Offeringand all applicable laws, the acquisition of all rules and regulations and decisions and orders of the shares of the Bank Regulatory Agencies, except as modified or waived in writing by the Company or the effectiveness of the Prospectus has been issued Regulatory Agencies and to their knowledge, no proceedings for any such purpose have been initiated or threatened by any Regulatory Agency, the Federal Reserve Reserve, (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein as to which counsel need express no opinion and other than compliance with state securities or any other federal or state authority; and (vii) Blue Sky laws as to their which such counsel need express no opinion). To such counsel's knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OCC, the FDIC or the Federal Reserve in granting preliminary approval of Regulatory Agencies approving the Applications or and the Holding Company Application.
g. (xii) The Registration Statement complied when it became effective at each time of purchase of any Shares and as of the Closing Date, with the requirements of the 1933 Act; each Preliminary Prospectus complied, at the time it was filed with the Commission, and complies as of the date hereof, in all material respects, with the requirements of the 1933 Act.
(xiii) To the best of such counsel's knowledge, there are no legal or governmental proceedings pending, or threatened (A) asserting the invalidity of this Agreement or (B) seeking to prevent the Offering. DALLAS2 1154490v4 49418-00015
(xiv) To the best of counsel's knowledge, the Company and the Bank have obtained all material licenses, permits and other governmental authorizations (including preliminary approval from the TDB and the FDIC) required for the conduct of their respective businesses as described in the Disclosure Documents, and all such licenses, permits and other governmental authorizations (including preliminary approval from the Texas Department of Banking), are in full force and effect and the Company and the Bank are in all material respects complying therewith.
(xv) Neither the Company nor the Bank shall is in violation of its Articles of Incorporation or its Articles of Association, as applicable, or its Bylaws, respectively, or to the best of such counsel's knowledge, in violation of any material obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, loan agreement, note, lease or other instrument to which it is a party or by which it or its property may be bound, which violation would have sustained since a Material Adverse Effect on the date execution and delivery of this Agreement by the Company, the incurrence of the latest audited financial statements included obligations herein set forth and the consummation of the transactions contemplated herein, will not materially conflict with, constitute a material breach of, or default under, or result in the Registration Statement creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Company or the ProspectusBank which are material to their business considered as one enterprise, pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or the Bank 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 the Bank is subject. In addition, such action will not result in any material loss violation of the provisions of the certificate of incorporation 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, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any material change in the long-term debt bylaws of the Company or the Bank or any material changeviolation of any applicable law, act, regulation or any developmentto such counsel's knowledge, involving a prospective material change in order or affecting the general affairs of the managementcourt order, financial positionwrit, shareholders’ equity (deficit) injunction or results of operations of the Company or the Bank, otherwise than as set forth in or contemplated by the Registration Statement and the Prospectus, the effect of which, in any such case described above, is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the sale of the Shares on the terms and in the manner contemplated in the Prospectusdecree.
h. Prior to and at each Closing Date: (ixvi) in To the reasonable opinion best of the Agentcounsel's knowledge, there shall have been no material adverse change in the management, financial condition, earnings, capital, properties or business affairs of the Company or the Bank independently, or of the Company and the Bank, considered as one enterprise, Bank are not in violation in any material respect of any directive from that as of the latest dates as of which such condition is set forth in the Prospectus, except as referred to therein or contemplated thereby; (ii) there shall have been no material transaction entered into by the Company and the Bank, considered as one enterprise, from the latest date as of which the financial condition of the Company or the Bank is set forth in the Prospectus other than transactions referred to or contemplated therein; (iii) the Company or the Bank shall not have received from the OCC, the Federal Reserve or the FDIC any direction (oral or written) Regulatory Agency to make any material change in the method of conducting their respective businesses business.
(i) In addition, during the preparation of the Disclosure Documents, Dinur & Associates, P.C. participated in conferences with which they have not complied in all material respects (which directioncertain officers of and other representatives of the Bank and the Company, if any, shall have been disclosed counsel to the Agent) , representatives of the independent public accountants for the Bank and which would reasonably be expected to have a Material Adverse Effect; (iv) neither the Company nor and representatives of the Agent at which the contents of the Disclosure Documents, and related matters were discussed and, although Dinur & Associates, P.C. are not passing upon and do not assume the accuracy of the statements contained in the Disclosure Documents, on the basis of the foregoing without independent verification (relying as to materiality as to factual matters on certificates of officers and other factual representations by the Bank shall and the Company), nothing has come to the attention of Dinur & Associates, P.C. that DALLAS2 1154490v4 49418-00015 caused Dinur & Associates, P.C. to believe that the Registration Statement (other than the financial statements and schedules, the notes thereto and the auditors' report thereon and the other financial and accounting data included therein, or omitted therefrom, and the exhibits thereto), at the time of the filing of the Prospectus with the Commission (which you have been informed is at or prior to the time of first sale of the Shares by the Company) included an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in default order to make the statements therein not misleading, or that the Prospectus (nor other than the financial statements and schedules, the notes thereto and the auditors' report thereon and the other financial and accounting data included therein, or omitted therefrom, and the exhibits thereto), as of its date and as of the date of counsel's opinion, 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, or that any Preliminary Prospectus or Permitted Free Writing Prospectus (other than the financial statements and schedules, the notes thereto and the auditors' report thereon and the other financial and accounting data included therein, or omitted therefrom, and the exhibits thereto), as of the date of first sale, included an untrue statement of a material fact or omitted 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.
(ii) The opinion shall an event have occurred whichbe limited to matters governed by the laws of the United States or the State of Texas. In rendering such opinion, with notice or lapse such counsel may rely (A) as to matters involving the application of time or both, would constitute a default) under any provision laws of any agreement jurisdiction other than the United States or instrument relating Texas, to the extent such counsel deems proper and specified in such opinion, upon the opinion of other counsel of good standing, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and the Bank and public officials; provided copies of any material outstanding indebtedness; (vsuch opinion(s) or certificates of public officials are delivered to you together with the opinion to be rendered hereunder by special counsel to the Company and the Bank. The opinion of such counsel for the Company shall state that it has no action, suit or proceedings, at law or reason to believe that you are not justified in equity or before or by relying thereon. Where any federal or state commission, board or other administrative agency, shall be pending or, of the foregoing opinions refers to the knowledge of counsel, such counsel may state that their opinion is limited to the Chief Executive Officer actual knowledge of attorneys actively involved in the transactions contemplated by this agreement or in the preparation of the Company or the Bank, threatened against opinion letter required by this subsection (f). Counsel to the Company or may render its opinions subject to customary qualifications and exceptions.
(g) At the Bank or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; and (vi) the Shares shall have been qualified or registered for offering and sale under the securities or Blue Sky Laws time of the jurisdictions as to which the Company and execution of this Agreement, the Agent shall have agreedreceived from ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇, P.C. a letter dated such date, in form and substance satisfactory to the Agent containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain DALLAS2 1154490v4 49418-00015 financial information contained in the Registration Statement, the Preliminary Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if any.
i. (h) At or the Closing Date, the Agent shall have received from [name of Auditor] a letter, dated as of Closing Date, 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 three business days prior to such the Closing Date.
(i) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and Chief Financial Officer of each of the Company, dated the Closing Date, to the effect that (i) a copy they have carefully examined Prospectus and, as of its date, the letters from date it was filed with the OCC Commission, and the FDIC granting preliminary approval time of the Applicationspurchase, (ii) a copy of the order from the Commission declaring the Registration Statement effective, (iii) a certificate of existence from the State of South Carolina evidencing the existence of the Company and (iv) a copy of the letter from the Federal Reserve granting preliminary approval of the Holding Company Application.
j. Subsequent to the date hereof, there shall not have occurred any of the following: (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange or American Stock Exchange or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or FINRA or by order of the Commission or any other governmental authority; or (ii) a general moratorium on the operations of commercial banks or other federally-insured financial institutions or general moratorium on the withdrawal of deposits from commercial banks or other federally-insured financial institutions declared by either federal or state authorities if the effect of either of (i) or (ii) herein, in the Agent’s reasonable judgment, makes it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus and the Agent shall have promptly notified the Company did not contain any untrue statement of such event.
k. FINRA shall have confirmed that it has not raised any objection with respect a material fact or omit to the fairness and reasonableness of the terms of this Agreement and Agent’s compensation hereunder.
l. Upon the Bank’s capitalization, provided the Commencement Date has occurred without this Agreement having been terminated, the Company shall, or shall have caused the Bank to, deliver the Assumption Agreement duly executed by the Bank state a material fact necessary in order to the Agent as contemplated by Section 6(s) hereof.
Appears in 1 contract
Conditions to Obligations of the Agent. The obligations of the Agent hereunder and immediately prior to the initial Closing of the Offering and each subsequent Closing are subject to the condition that all representations and warranties and other statements of the Company are, at and as of the commencement of the Offering and at and as of the applicable each Closing Date, true and correct in all material respects and the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed, and the following additional conditions:
a. (a) No Prospectus Registration Statement or amendment or supplement to the Registration Statement or the Prospectus thereto shall have been filed distributed to which the Agent shall have objected in writing.
b. The Registration Statement and any registration statement required to be filed, prior to the sale of the Shares, under the 1933 Act pursuant to Rule 424(b(b) shall have been filed and shall have become effective under the 1933 Act.
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings initiated under Section 8(d) or 8(e) of the 1933 Act; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein in light of the circumstances under which they are made, not misleading; and (iii) none of the Prospectus or any amendment or supplement thereto shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading.
N▇. ▇▇▇▇ ▇▇▇▇▇▇▇ Law Firm▇▇▇▇▇ & Scarborough LLP, P.A.counsel for the Agent, shall have furnished to the Agent such opinion or opinions, dated as of each Closing Date, with respect to such matters as the Agent 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) M▇▇▇▇▇ & M▇▇▇▇▇ PLLC, counsel for the Company, shall have furnished to the Agent its written opinion, dated as of each Closing Date, in a form and substance reasonably satisfactory to the Agent and Agent, substantially ’s counsel and to such further effect as counsel to the effect set forth in Appendix 6 hereto; in rendering the opinions required by this section, such counsel, with the consent of Agent’s counsel, Agent may rely, as to matters of fact, upon certificates and representations of officers of the Company and on certificates of public officials.reasonably request:
e. (d) At the time of the execution of this Agreement, the Agent shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇Cherry, LLC Bekaert & Holland, L.L.P. a letter dated such date, in form and substance satisfactory to the Agent containing statements and information of the type ordinarily included in accountants’ “comfort letters” to the effect that:
i. ▇▇▇▇▇▇ ▇▇▇▇▇, LLC are independent certified public accountants underwriters with respect to the Company within the meaning of the 1933 Act and the applicable published rules and regulations adopted by the Commission and the PCAOB;
ii. In the opinion of ▇▇▇▇▇▇ ▇▇▇▇▇, LLC, the financial statements audited by ▇▇▇▇▇▇ ▇▇▇▇▇, LLC and included certain financial information contained in the Registration Statement comply as to form in all material respects with Statement.
(e) At each Closing Date, the applicable accounting requirements of the 1933 Act and the related rules and regulations adopted by the Commission;
iii. For the purposes of providing such Agent shall have received from Cherry, Bekaert & Holland, L.L.P., a letter, ▇▇▇▇▇▇ ▇▇▇▇▇dated as of Closing Date, LLC has read to the fiscal 2008 minutes of meetings of shareholders, effect that they reaffirm the Board of Directors and any committees of the Board of Directors of the Company, as set forth statements made in the minute books as letter furnished pursuant to subsection (d) of this Section, except that the specified date referred to shall be a date within five not more than three business days of the Effective Time, officials of the Company advising ▇▇▇▇▇▇ ▇▇▇▇▇, LLC that the minutes of all such meetings through that date were set forth therein; and
iv. Such additional statements relating prior to the unaudited quarterly financial statements of the Company subsequent to the date of Company’s most recent audited financial statements as the Agent may reasonably requestClosing Date.
f. (f) At each Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and Chief Financial Officer of each of the Company and the Bank (if the Bank is capitalized at such time)Company, dated the Closing Date, solely in their respective capacities as officers of the Company, to the effect that (i) they have carefully examined the Prospectus Registration Statement and, as of its date, the date it was filed with the Commission, and the applicable Closing Datetime of purchase, the Prospectus Registration Statement did not contain any untrue statement of a material fact or omit 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; (ii) there has not been, since the respective dates as of which information is given in the ProspectusRegistration Statement, any material adverse change in the financial condition or in the management, earnings, capital, properties, business prospects or business affairs of the Company or the Bank, considered except as one enterprise, whether or not arising disclosed in the ordinary course of businessRegistration Statement; (iii) the representations and warranties contained in Section 3 of this Agreement are true and correct in all material respects with the same force and effect as though made at and as of such the Closing Date; (iv) the Company and the Bank have has complied in all material respects with all material agreements and satisfied all conditions on its part to be performed or satisfied at or prior to such the Closing Date including the conditions contained in this Section 87; (v) no stop order has been issued or, to the best of their knowledge, is threatened, by the Commission, a Regulatory Agency, the Federal Reserve or any other governmental body; and (vi) no order suspending the Offering, the acquisition of all of the shares of the Bank by the Company or the effectiveness of the Prospectus Offering has been issued and to the best of their knowledge, no proceedings for any such purpose have been initiated or threatened by any Regulatory Agency, the Federal Reserve Agency or any other federal or state authority; and (vii) to their knowledge, no person has sought to obtain regulatory or judicial review of the action of the OCC, the FDIC or the Federal Reserve in granting preliminary approval of the Applications or the Holding Company Application.
g. Neither the (g) The Company nor the Bank shall not have sustained since the date of the latest audited financial statements included in the Registration Statement or the ProspectusStatement, any material 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, otherwise than as set forth in the Registration Statement and the ProspectusStatement, and since the respective dates as of which information is are given in the Registration Statement and the ProspectusStatement, there shall not have been any material change in the long-term debt of the Company or the Bank or any material change, or any development, involving a prospective material change in or affecting the general affairs of the management, financial position, shareholdersstockholders’ equity (deficit) or results of operations of the Company or the BankCompany, otherwise than as set forth in or contemplated by in the Registration Statement and the ProspectusStatement, the effect of which, in any such case described above, is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the sale delivery of the Shares on the terms and in the manner contemplated in the ProspectusRegistration Statement.
h. (h) Prior to and or at each Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the management, financial condition, condition or in the earnings, capital, properties or business affairs of the Company or the Bank independently, or of the Company and the Bank, considered as one enterprise, independently from that as of the latest dates as of which such condition is set forth in the ProspectusRegistration Statement, except as referred to therein or contemplated therebytherein; (ii) there shall have been no material transaction entered into by the Company and the Bank, considered as one enterprise, from the latest date as of which the financial condition of the Company or the Bank is set forth in the Prospectus Registration Statement other than transactions referred to or contemplated therein; (iii) the Company or the Bank shall not have received from the OCC, the Federal Reserve or the FDIC any Regulatory Agencies any direction (oral or written) to make any material change in the method of conducting their respective businesses its business with which they have it has not complied in all material respects (which direction, if any, shall have been disclosed to the Agent) and which would reasonably be expected to have a Material Adverse Effectmaterial and adverse effect on the management, condition (financial or otherwise) or on the earnings, capital, properties or business affairs of the Company and its subsidiaries considered as one enterprise; (iv) neither the Company nor the Bank shall not have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (v) no action, suit or proceedings, at law or in equity or before or by any federal or state commission, board or other administrative agency, shall be pending or, to the knowledge of the Chief Executive Officer of the Company or the BankCompany, threatened against the Company or the Bank or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effectmaterial and adverse effect on the management, financial condition or on the earnings, capital, properties or business affairs of the Company; and (vi) the Shares shall have been qualified or registered for offering and sale under the securities or Blue Sky Laws blue sky laws of the jurisdictions as to which the Company and the Agent shall have agreed.
i. At or prior to such Closing Date, the Agent shall receive (i) a copy of the letters from the OCC and the FDIC granting preliminary approval of the Applications, (ii) a copy of the order from the Commission declaring the Registration Statement effective, (iii) a certificate of existence from the State of South Carolina evidencing the existence of the Company and (iv) a copy of the letter from the Federal Reserve granting preliminary approval of the Holding Company Application.
j. Subsequent to the date hereof, there shall not have occurred any of the following: (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange or American Stock Exchange or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or FINRA or by order of the Commission or any other governmental authority; or (ii) a general moratorium on the operations of commercial banks or other federally-insured financial institutions or general moratorium on the withdrawal of deposits from commercial banks or other federally-insured financial institutions declared by either federal or state authorities authorities; (ii) the engagement by the United States in hostilities which have resulted in the declaration, on or after the date hereof, of a national emergency or war; or (iii) a material decline in the price of equity or debt securities, if the effect of either any of (i) or through (iiiii) herein, in the Agent’s reasonable judgment, makes it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus and the Agent shall have promptly notified the Company of such eventStatement.
k. FINRA shall have (j) The NASD has confirmed that it has not raised any objection with respect to the fairness and reasonableness of the terms of this Agreement and the Agent’s compensation hereunder.
l. Upon the Bank’s capitalization, provided the Commencement Date has occurred without this Agreement having been terminated, the Company shall, or shall have caused the Bank to, deliver the Assumption Agreement duly executed by the Bank to the Agent as contemplated by Section 6(s) hereof.
Appears in 1 contract
Conditions to Obligations of the Agent. The obligations of the Agent hereunder and the occurrence of the Closing of the Offering are subject subject, in its discretion, to the condition that all representations and warranties and other statements of the Company are, at and as of the commencement of the Offering and at and as of the applicable Closing Date, true and correct in all material respects and the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed, and the following additional conditions:
a. No Prospectus or amendment or supplement to the Registration Statement or the Prospectus shall have been filed to which the Agent shall have objected in writing.
b. The Registration Statement and any registration statement required to be filed, prior to the sale of the Shares, under the 1933 Act pursuant to Rule 424(b) shall have been filed and shall have become effective under the 1933 Act.
(i) c. No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings initiated under Section 8(d) or 8(e) of the 1933 Act; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein in light of the circumstances under which they are made, not misleading; and (iii) none of the Prospectus Preliminary Prospectuses or any the Prospectus, and no amendment or supplement thereto thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading.
▇. ▇▇▇▇▇▇ Law Firm, P.A., counsel for the Company, shall have furnished to the Agent its written opinion, dated as of each Closing Date, in form and substance satisfactory to the Agent, substantially to the effect set forth in Appendix 6 hereto; in rendering the opinions required by this section, such counsel, with the consent of Agent’s counsel, may rely, as to matters of fact, upon certificates and representations of officers of the Company and on certificates of public officials.
e. At the time of the execution of this Agreement, the Agent shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇, LLC a letter dated such date, in form and substance satisfactory to the Agent to the effect that:
i. ▇▇▇▇▇▇ ▇▇▇▇▇, LLC are independent certified public accountants with respect to the Company within the meaning of the 1933 Act and the applicable published rules and regulations adopted by the Commission and the PCAOB;
ii. In the opinion of ▇▇▇▇▇▇ ▇▇▇▇▇, LLC, the financial statements audited by ▇▇▇▇▇▇ ▇▇▇▇▇, LLC and included in the Registration Statement comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and the related rules and regulations adopted by the Commission;
iii. For the purposes of providing such letter, ▇▇▇▇▇▇ ▇▇▇▇▇, LLC has read the fiscal 2008 minutes of meetings of shareholders, the Board of Directors and any committees of the Board of Directors of the Company, as set forth in the minute books as of a date within five days of the Effective Time, officials of the Company advising ▇▇▇▇▇▇ ▇▇▇▇▇, LLC that the minutes of all such meetings through that date were set forth therein; and
iv. Such additional statements relating to the unaudited quarterly financial statements of the Company subsequent to the date of Company’s most recent audited financial statements as the Agent may reasonably request.
f. At each Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and Chief Financial Officer of each of the Company and the Bank (if the Bank is capitalized at such time), dated the Closing Date, to the effect that (i) they have carefully examined the Prospectus and, as of its date, the date it was filed with the Commission, and the applicable Closing Date, the Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were are made, not misleading; (iiiv) there has no Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not beenmisleading; and (v) none of the Permitted Free Writing Prospectuses, since if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the respective dates as statements therein, in the light of the circumstances under which information is given in they are made, not misleading.
d. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Scarborough LLP, counsel for the Agent, shall have furnished to the Agent such opinion or opinions, dated the Closing Date, with respect to the incorporation of the Company, the validity of the Shares being issued on the Closing Date, the Registration Statement, the Prospectus, and other related matters as the Agent 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;
▇. ▇▇▇▇▇ & Associates, P.C., counsel for the Company, shall have furnished to the Agent their written opinion, dated as of the Closing Date, in form and substance satisfactory to the Agent to the effect that:
i. The Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Georgia, with corporate power and authority to own its properties and to conduct its business as described in the Registration Statement, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus, and to such counsel's knowledge is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which the failure to qualify would have a material adverse change in effect on the financial condition or in the managementcondition, earnings, capital, properties, business prospects properties or business affairs of the Company.
ii. Upon receipt of final approval of the Georgia Department of Banking and Finance, the Bank will be a duly organized and validly existing Georgia banking association with full power and authority to own its properties and to conduct its business as described in the Registration Statement, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus and to enter into this Agreement and perform its obligations hereunder; the activities of the Bank as described in the Registration Statement, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus are permitted by the rules, regulations and practices of the Regulatory Agencies and the Federal Reserve; the issuance and sale of the capital stock of the Bank to the Company has been duly and validly authorized by all necessary corporate action on the part of the Company and the Bank and, upon payment therefore as described in the Prospectus, will be validly issued, fully paid and nonassessable; and will be owned of record and beneficially by the Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
iii. Upon receipt of final FDIC approval, the deposit accounts of the Bank will be insured by the FDIC up to the maximum amount allowed by law and to such counsel's knowledge no proceedings for the termination or revocation of such insurance are pending or threatened.
iv. Upon the completion of the Offering, the authorized, issued and outstanding capital stock of the Company and the Bank will be as set forth in the Registration Statement, the Preliminary Prospectus, and the Prospectus under the caption "Capitalization," (and any similar sections or information, if any, contained in any Permitted Free Writing Prospectus) and no shares of Common Stock or attached warrants have been or will be issued and outstanding prior to the Closing Date, other than as set forth in the Prospectus; the Shares of the Company to be subscribed for in the Offering have been duly and validly authorized for issuance, and when issued and delivered by the Company pursuant to the plan of distribution against payment of the consideration calculated as set forth in the plan of distribution, will be fully paid and nonassessable; and the issuance of the Shares is not subject to preemptive rights.
v. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary action on the part of the Company and the Bank; and this Agreement constitutes a valid, legal and binding obligation of each of the Company and the Bank, considered enforceable in accordance with its terms, except to the extent that the provisions of Section 8 hereof may be unenforceable as one enterpriseagainst public policy, whether and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or not arising other laws affecting the enforcement of creditors' rights generally, or the rights of creditors of financial institutions insured by the FDIC (including the laws relating to the rights of the contracting parties to equitable remedies).
vi. Subject to the satisfaction of the conditions to the Regulatory Agencies' approval of the Applications and the Federal Reserve's approval of the Holding Company Application, no further approval, registration, authorization, consent or other order of any federal regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Shares and the consummation of the Offering.
vii. The Applications, as filed with the Regulatory Agencies, have been granted preliminary approval by the Regulatory Agencies. The Federal Reserve has issued its preliminary order of approval under the BHCA, and the purchase by the Company of all of the issued and outstanding capital stock of the Bank has been authorized by the Federal Reserve and no action has been taken, or to such counsel's knowledge is pending or threatened, to revoke any such authorization or approval.
viii. The Registration Statement has been declared effective under the 1933 Act, no stop order suspending the effectiveness of the Registration Statement has been issued, and to the best of such counsel's knowledge no proceedings for that purpose have been instituted or threatened.
ix. The consummation of the Offering and the transactions contemplated thereunder will have no material tax consequences to the Company, the Bank or any person subscribing for Shares in the ordinary course Offering.
x. The terms and provisions of business; (iii) the representations and warranties Shares conform to the description thereof contained in Section 3 the Registration Statement, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus and such description describes in all material respects the rights of this Agreement the holders thereof, the information in the Registration Statement, any Preliminary Prospectus, and the Prospectus under the caption "Articles of Incorporation" (and any similar sections or information, if any, contained in any Permitted Free Writing Prospectus) to the extent that it constitutes matters of law or legal conclusions has been prepared by such counsel and is accurate in all material respects; and the forms of certificates proposed to be used to evidence the Shares are true in due and correct proper form.
xi. At the time each of the Applications and the Holding Company Application was approved, such Application and Holding Company Application (as amended or supplemented) complied as to form in all material respects with the same force and effect as though made at and as requirements of such Closing Date; (iv) the Company and the Bank have complied in all material respects with all material agreements and satisfied all conditions on its part to be performed or satisfied at or prior to such Closing Date including the conditions contained in this Section 8; (v) no stop order has been issued or, to their knowledge, is threatened, by the Commission, a Regulatory AgencyAgencies, the Federal Reserve or any other governmental body; (vi) no order suspending the Offeringand all applicable laws, the acquisition of all rules and regulations and decisions and orders of the shares of the Bank Regulatory Agencies, except as modified or waived in writing by the Company or the effectiveness of the Prospectus has been issued Regulatory Agencies and to their knowledge, no proceedings for any such purpose have been initiated or threatened by any Regulatory Agency, the Federal Reserve Reserve, (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein as to which counsel need express no opinion and other than compliance with state securities or any other federal or state authority; and (vii) Blue Sky laws as to their which such counsel need express no opinion). To such counsel's knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OCC, the FDIC or the Federal Reserve in granting preliminary approval of Regulatory Agencies approving the Applications or and the Holding Company Application.
g. Neither xii. The Registration Statement complied when it became effective at the Company nor time of purchase of any Shares and as of the Bank shall have sustained since Closing Date, with the requirements of the 1933 Act; each Preliminary Prospectus complied, at the time it was filed with the Commission, and complies as of the date hereof, in all material respects, with the requirements of the latest audited financial statements included 1933 Act.
xiii. To the best of such counsel's knowledge, there are no legal or governmental proceedings pending, or threatened (A) asserting the invalidity of this Agreement or (B) seeking to prevent the Offering.
xiv. The information in the Registration Statement Statement, the Preliminary Prospectus and the Prospectus under the caption "Supervision and Regulation" (and any similar sections or information, if any, contained in any Permitted Free Writing Prospectus), to the Prospectusextent that it constitutes matters of law, any material loss summaries and supervision of legal matters, documents or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insuranceproceedings, or legal conclusions, has been prepared by such counsel and is accurate in all material respects (except as to the financial statements and other financial data included therein as to which such counsel need express no opinion).
xv. To the best of counsel's knowledge, the Company and the Bank have obtained all material licenses, permits and other governmental authorizations (including preliminary approval from any labor dispute or court or governmental action, order or decree, otherwise than the DBF) required for the conduct of their respective businesses as set forth described in the Registration Statement Statement, the Preliminary Prospectuses, the Prospectus and the ProspectusPermitted Free Writing Prospectuses, if any, except where the failure to obtain such licenses, permits and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall other governmental authorizations would not have been any a material change in adverse effect on the long-term debt financial condition of the Company or the Bank or any material changeconsidered as one enterprise, or any development, involving a prospective material change in or affecting the general affairs of the management, financial position, shareholders’ equity (deficit) or results of operations of the Company or the Bank, otherwise than as set forth in or contemplated by the Registration Statement and the Prospectus, the effect of which, in any such case described above, is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the sale of the Shares on the terms and in the manner contemplated in the Prospectus.
h. Prior to and at each Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the management, financial condition, earnings, capital, properties or business affairs of the Company or the Bank independently, or of the Company and the Bank, considered as one enterprise, and all such licenses, permits and other governmental authorizations (including preliminary approval from that as of the latest dates as of which such condition is set forth DBF), are in the Prospectus, except as referred to therein or contemplated thereby; (ii) there shall have been no material transaction entered into by full force and effect and the Company and the BankBank are in all material respects complying therewith.
xvi. Neither the Company nor the Bank is in violation of its Articles of Incorporation or its Articles of Association, considered as one enterpriseapplicable, from or its Bylaws, respectively, or to the latest date as best of such counsel's knowledge, in violation of any material obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, loan agreement, note, lease or other instrument to which it is a party or by which it or its property may be bound, which violation would have a material adverse effect on the financial condition of the Company or the Bank is considered as one enterprise, or on the earnings, capital, properties or business affairs of the Company and the Bank considered as one enterprise; the execution and delivery of this Agreement by the Company and the Bank, the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein, will not materially conflict with, constitute a material breach of, or default under, or result in the Prospectus other than transactions referred to creation or contemplated therein; (iii) imposition of any material lien, charge or encumbrance upon any property or assets of the Company or the Bank shall which are material to their business considered as one enterprise, pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or the Bank 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 the Bank is subject. In addition, such action will not have received from result in any material violation of the OCCprovisions of the certificate of incorporation or bylaws of the Company or the Bank or any material violation of any applicable law, act, regulation or to such counsel's knowledge, order or court order, writ, injunction or decree.
xvii. To the best of counsel's knowledge, the Federal Reserve or Company and the FDIC Bank are not in violation in any direction (oral or written) material respect of any directive from any Regulatory Agency to make any material change in the method of conducting their respective businesses with which they have not complied business.
f. The letter of Dinur & Associates, P.C. in all material respects (which directionform and substance to the effect that:
i. In addition, during the preparation of the Registration Statement, the Preliminary Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if any, shall have been disclosed Dinur & Associates, P.C. participated in conferences with certain officers of and other representatives of the Bank and the Company, counsel to the Agent) and which would reasonably be expected to have a Material Adverse Effect; (iv) neither , representatives of the Company nor independent public accountants for the Bank shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (v) no action, suit or proceedings, at law or in equity or before or by any federal or state commission, board or other administrative agency, shall be pending or, to the knowledge of the Chief Executive Officer of the Company or the Bank, threatened against the Company or the Bank or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; and (vi) the Shares shall have been qualified or registered for offering and sale under the securities or Blue Sky Laws of the jurisdictions as to which the Company and representatives of the Agent shall have agreed.
i. At or prior to such Closing Dateat which the contents of the Registration Statement, the Agent shall receive (i) a copy of the letters from the OCC and the FDIC granting preliminary approval of the ApplicationsPreliminary Prospectuses, (ii) a copy of the order from the Commission declaring the Registration Statement effective, (iii) a certificate of existence from the State of South Carolina evidencing the existence of the Company and (iv) a copy of the letter from the Federal Reserve granting preliminary approval of the Holding Company Application.
j. Subsequent to the date hereof, there shall not have occurred any of the following: (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange or American Stock Exchange or in the over-the-counter market, or quotations halted generally on the Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or FINRA or by order of the Commission or any other governmental authority; or (ii) a general moratorium on the operations of commercial banks or other federally-insured financial institutions or general moratorium on the withdrawal of deposits from commercial banks or other federally-insured financial institutions declared by either federal or state authorities if the effect of either of (i) or (ii) herein, in the Agent’s reasonable judgment, makes it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus and the Agent shall have promptly notified Permitted Free Writing Prospectuses, if any, and related matters were discussed and, although Dinur & Associates, P.C. are not passing upon and do not assume the Company of such event.
k. FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness accuracy of the terms of this Agreement and Agent’s compensation hereunder.
l. Upon statements contained in the Bank’s capitalization, provided the Commencement Date has occurred without this Agreement having been terminatedRegistration Statement, the Company shallPreliminary Prospectuses, the Prospectus or shall have caused the Bank toPermitted Free Writing Prospectuses, deliver on the Assumption Agreement duly executed basis of the foregoing without independent verification (relying as to materiality as to factual matters on certificates of officers and other factual representations by the Bank and the Company), nothing has come to the Agent attention of Dinur & Associates, P.C. that caused Dinur & Associates, P.C. to believe that the Registration Statement (other than the financial statements and schedules, the notes thereto and the auditors' report thereon and the other financial and accounting data included therein, or omitted therefrom, and the exhibits thereto), at the time of the filing of the Prospectus with the Commission (which you have been informed is at or prior to the time of first sale of the Shares by the Company) included an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or that the Prospectus (other than the financial statements and schedules, the notes thereto and the auditors' report thereon and the other financial and accounting data included therein, or omitted therefrom, and the exhibits thereto), as contemplated by Section 6(s) hereof.of its date and as of the date of counsel's opinion, 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 w
Appears in 1 contract