Representations and Warranties of the Primary Parties. The Primary Parties jointly and severally represent and warrant to the Agent that, except as disclosed in the Prospectus: (a) The Holding Company and LMIC have and, as of the Closing Time, will have all such power, authority, authorizations, approvals and orders as may be required to enter into this Agreement, to carry out the provisions and conditions hereof and to issue and sell the Shares as provided herein and as described in the Prospectus. Subject to the receipt of member and regulatory approval, the consummation of the Conversion and the Reorganization, the execution, delivery and performance of this Agreement and the Letter Agreement and the consummation of the transactions herein contemplated, have been duly and validly authorized by all necessary corporate action on the part of the Holding Company and LMIC. This Agreement has been validly executed and delivered by the Holding Company and LMIC, and is a valid, legal and binding obligation of the Holding Company and LMIC, enforceable in accordance with its terms, except as the legality, validity, binding nature and enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium, conservatorship, receivership or other similar laws relating to or affecting the enforcement of creditors’ rights generally; (ii) general equity principles regardless of whether such enforceability is considered in a proceeding in equity or at law; and (iii) the extent, if any, that the provisions of Sections 11 or 12 hereof may be unenforceable as against public policy. (b) The Registration Statement was declared effective by the Commission on , 2008, and no stop order has been issued with respect thereto and no proceedings therefore have been initiated or, to the best knowledge of the Primary Parties, threatened by the Commission. At the time the Registration Statement (including the Prospectus contained therein) became effective, the Registration Statement (including the Prospectus contained therein) complied as to form in all material respects with the 1933 Act and the regulations promulgated thereunder and the Registration Statement (including the Prospectus contained therein) did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. At the time any Rule 424(b) or (c) Prospectus was filed with the Commission and at the Closing Time referred to in Section 5, the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto), and any Blue Sky Application or any Sales Information authorized by the Primary Parties for use in connection with the Offerings will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties in this Section 6(b) shall not apply to statements or omissions made in reliance upon and in conformity with written information furnished to the Primary Parties by the Agent expressly regarding the Agent for use under the captions “MARKET FOR THE COMMON STOCK” and “The CONVERSION – Marketing and Underwriting Arrangements” or written statements or omissions from any Blue Sky Application or any Sales Information. (c) At the time of filing the Registration Statement and at the date hereof, the Holding Company was not, and is not, an ineligible issuer, as defined in Rule 405. At the time of the filing of the Registration Statement and at the time of the use of any issuer free writing prospectus, as defined in Rule 433(h), the Holding Company met the conditions required by Rules 164 and 433 for the use of a free writing prospectus. If required to be filed, the Holding Company has filed any issuer free writing prospectus related to the offered Shares at the time it is required to be filed under Rule 433 and, if not required to be filed, will retain such free writing prospectus in the Holding Company’s records pursuant to Rule 433(g) and if any issuer free writing prospectus is used after the date hereof in connection with the offering of the Shares the Holding Company will file or retain such free writing prospectus as required by Rule 433. (d) As of the Applicable Time (as hereinafter defined), neither (i) the Issuer-Represented General Free Writing Prospectus(es) issued at or prior to the Applicable Time and the Statutory Prospectus, all considered together (collectively, the “General Disclosure Package”), nor (ii) any individual Issuer-Represented Limited-Use Free Writing Prospectus, when considered together with the General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from any Prospectus included in the Registration Statement relating to the offered Shares or any Issuer-Represented Free Writing Prospectus based upon and in conformity with written information furnished to the Primary Parties by the Agent specifically for use therein. As used in this paragraph and elsewhere in this Agreement:
Appears in 1 contract
Sources: Agency Agreement (Lmi Holdings Inc)
Representations and Warranties of the Primary Parties. The Primary Parties jointly and severally represent and warrant to the Agent that, except as disclosed in the Prospectus:
(a) The MHC, the Mid-Tier Holding Company, the Holding Company and LMIC have and, as of the Closing Time, will Bank have all such power, authority, authorizations, approvals and orders as may be required to enter into this Agreement, and, as of the Closing Date, the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank will have all such power, authority, authorizations, approvals and orders as may be required to carry out the provisions and conditions hereof and to issue and sell the Offer Shares and to issue the Exchange Shares as provided herein and as described in the Prospectus. Subject to the receipt of member and regulatory approval, the The consummation of the Conversion and the ReorganizationConversion, the execution, delivery and performance of this Agreement and the Letter Agreement and the consummation of the transactions contemplated herein contemplated, have been duly and validly authorized by all necessary corporate action on the part of the MHC, the Mid-Tier Holding Company, the Holding Company and LMICthe Bank. This Agreement has been validly executed and delivered by the Holding Company and LMICPrimary Parties, and is a valid, legal and binding obligation of the Holding Company and LMICPrimary Parties, in each case enforceable in accordance with its terms, except as the legality, validity, binding nature and enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium, conservatorship, receivership or other similar laws relating to or affecting the enforcement of creditors’ rights generally; (ii) general equity principles regardless of whether such enforceability is considered in a proceeding in equity or at law; and (iii) the extent, if any, that the provisions of Sections 11 or and 12 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 savings institutions insured by the FDIC (including the laws relating to the rights of the contracting parties to equitable remedies).
(b) The Registration Statement was declared effective by the Commission on May 14, 2008, and no 2010. No stop order has been issued with respect thereto and no to the Registration Statement. No proceedings therefore related to the Registration Statement have been initiated or, to the best knowledge of the Primary Parties, threatened by the Commission. At the time the Registration Statement (Statement, including the Prospectus contained therein) therein (including any amendment or supplement thereto), became effective, the Registration Statement (including the Prospectus contained therein) complied as to form in all material respects with the 1933 Act and the regulations promulgated thereunder 1933 Act Regulations and the Registration Statement (Statement, including the Prospectus contained thereintherein (including any amendment or supplement thereto), any Blue Sky Application or any Sales Information (as such terms are defined in Section 11 hereof) authorized by the Primary Parties for use in connection with the Offering, did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. At the time any Rule 424(b) or (c) Prospectus was filed with the Commission and at the Closing Time Date referred to in Section 5, the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto)) and, and when taken together with the Prospectus, any Blue Sky Application (if applicable) or any Sales Information (as defined below) authorized for use by any of the Primary Parties for use in connection with the Offerings Offering, will 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; provided, however, that the representations and warranties in this Section 6(b) shall not apply to statements or omissions made in reliance upon and in conformity with written information furnished to the Primary Parties by the Agent expressly regarding the Agent for use under the captions “MARKET FOR THE COMMON STOCK” and caption “The CONVERSION – Conversion and Offering — Marketing and Underwriting Arrangements” or written statements or omissions from any Blue Sky Application sales information or any Sales Informationinformation filed pursuant to state securities or blue sky laws or regulations regarding the Agent.
(c) At the time of filing the Registration Statement and at the date hereof, the Holding Company was not, and is not, an ineligible issuer, as defined in Rule 405. At the time of the filing of the Registration Statement and at the time of the use of any issuer free writing prospectus, as defined in Rule 433(h), the Holding Company met the conditions required by Rules 164 and 433 for the use of a free writing prospectus. If required to be filed, the Holding Company has filed any issuer free writing prospectus related to the offered Offer Shares at the time it is required to be filed under Rule 433 and, if not required to be filed, will retain such free writing prospectus in the Holding Company’s records pursuant to Rule 433(g) and if any issuer free writing prospectus is used after the date hereof in connection with the offering of the Shares the Holding Company will file or retain such free writing prospectus as required by Rule 433.
(d) As of the Applicable Time (as hereinafter defined)Time, neither (i) the Issuer-Represented General Free Writing Prospectus(es) issued at or prior to the Applicable Time and the Statutory Prospectus, all considered together (collectively, the “General Disclosure Package”), nor (ii) any individual Issuer-Represented Limited-Use Free Writing Prospectus, when considered together with the General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from any Prospectus included in the Registration Statement relating to the offered Shares or any Issuer-Represented Free Writing Prospectus based upon and in conformity with written information furnished to the Primary Parties Holding Company by the Agent specifically for use therein. As used in this paragraph and elsewhere in this Agreement:
Appears in 1 contract
Representations and Warranties of the Primary Parties. The Primary Parties jointly and severally represent and warrant to the Agent that, except as disclosed in the Prospectus:
(a) The Holding Company and LMIC have and, as Each of the Closing Time, will have Primary Parties has all such power, authority, authorizations, approvals and orders as may be required to enter into this Agreement, and, as of the Closing Date, each of the Primary Parties will have all such power, authority, authorizations, approvals and orders as may be required to carry out the provisions and conditions hereof and to issue and sell the Shares as provided herein and as described in the Prospectus. Subject to the receipt of member and regulatory approval, the The consummation of the Conversion and the ReorganizationConversion, the execution, delivery and performance of this Agreement and the Letter Agreement and the consummation of the transactions contemplated herein contemplated, have been duly and validly authorized by all necessary corporate action on the part of the Holding Company Primary Parties and, as of the Closing Date, will have been duly and LMICvalidly authorized by all necessary corporate action on the part of each of the Primary Parties. This Agreement has been validly executed and delivered by the Holding Company and LMICPrimary Parties, and is a valid, legal and binding obligation of the Holding Company and LMICPrimary Parties, in each case enforceable in accordance with its terms, except as the legality, validity, binding nature and enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium, conservatorship, receivership or other similar laws relating to or affecting the enforcement of creditors’ rights generally; (ii) general equity principles regardless of whether such enforceability is considered in a proceeding in equity or at law; and (iii) the extent, if any, that the provisions of Sections 11 or and 12 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 savings institutions insured by the FDIC (including the laws relating to the rights of the contracting parties to equitable remedies).
(b) The Registration Statement was declared effective by the Commission on May _, 2008, and no 2011. No stop order has been issued with respect thereto and no to the Registration Statement. No proceedings therefore related to the Registration Statement have been initiated or, to the best knowledge of the Primary Parties, threatened by the Commission. At the time the Registration Statement (Statement, including the Prospectus contained therein) therein (including any amendment or supplement thereto), became effective, the Registration Statement (including the Prospectus contained therein) complied as to form in all material respects with the 1933 Act and the regulations promulgated thereunder 1933 Act Regulations and the Registration Statement (Statement, including the Prospectus contained thereintherein (including any amendment or supplement thereto), any Blue Sky Application or any Sales Information (as such terms are defined in Section 11 hereof) authorized by the Primary Parties for use in connection with the Offering, did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. At the time any Rule 424(b) or (c) Prospectus was filed with the Commission and at the Closing Time Date referred to in Section 5, the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto)) and, and when taken together with the Prospectus, any Blue Sky Application (if applicable) or any Sales Information (as defined below) authorized for use by either of the Primary Parties for use in connection with the Offerings Offering, will 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; provided, however, that the representations and warranties in this Section 6(b) shall not apply to statements or omissions made in reliance upon and in conformity with written information furnished to the Primary Parties by the Agent expressly regarding the Agent for use under the captions “MARKET FOR THE COMMON STOCK” and caption “The CONVERSION Conversion and Offering – Marketing and Underwriting ArrangementsDistribution; Compensation” or written statements or omissions from any Blue Sky Application sales information or any Sales Informationinformation filed pursuant to state securities or blue sky laws or regulations regarding the Agent.
(c) At the time of filing the Registration Statement and at the date hereof, the Holding Company was not, and is not, an ineligible issuer, as defined in Rule 405. At the time of the filing of the Registration Statement and at the time of the use of any issuer free writing prospectus, as defined in Rule 433(h), the Holding Company met the conditions required by Rules 164 and 433 for the use of a free writing prospectus. If required to be filed, the Holding Company has filed any issuer free writing prospectus related to the offered Shares at the time it is required to be filed under Rule 433 and, if not required to be filed, will retain such free writing prospectus in the Holding Company’s records pursuant to Rule 433(g) and if any issuer free writing prospectus is used after the date hereof in connection with the offering of the Shares the Holding Company will file or retain such free writing prospectus as required by Rule 433.
(d) As of the Applicable Time (as hereinafter defined)Time, neither (i) the Issuer-Represented General Free Writing Prospectus(es) issued at or prior to the Applicable Time and the Statutory Prospectus, all considered together (collectively, the “General Disclosure Package”), nor (ii) any individual Issuer-Represented Limited-Use Free Writing Prospectus, when considered together with the General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from any Prospectus included in the Registration Statement relating to the offered Shares or any Issuer-Represented Free Writing Prospectus based upon and in conformity with written information furnished to the Primary Parties Holding Company by the Agent specifically for use therein. As used in this paragraph and elsewhere in this Agreement:
Appears in 1 contract
Representations and Warranties of the Primary Parties. The Primary Parties jointly and severally represent and warrant to the Agent that, except as disclosed in the Prospectus:
(a) The Holding Company and LMIC have Bank has and, as of the Closing TimeDate, the MHC and the Holding Company will have all such power, authority, authorizations, approvals and orders as may be required to enter into this Agreement, to carry out the provisions and conditions hereof and to issue and sell the Shares as provided herein and as described in the Prospectus, subject to the various limitations and required approvals described therein. Subject to the receipt of member depositor and regulatory approval, the consummation of the Conversion and the Reorganization, the execution, delivery and performance of this Agreement and the Letter Agreement and the consummation of the transactions herein contemplated, contemplated have been duly and validly authorized by all necessary corporate action on the part of the Bank and, as of the Closing Date, will have been duly and validly authorized by all necessary corporate action on the part of the MHC and the Holding Company and LMICCompany. This Agreement has been validly executed and delivered by the Holding Company (in formation), the MHC (in formation) and LMICthe Bank, and is a valid, legal and binding obligation of the Holding Company Company, the Bank and LMICthe MHC, enforceable in accordance with its terms, except as the legality, validity, binding nature and enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium, conservatorship, receivership or other similar laws relating to or affecting the enforcement of creditors’ rights generally; (ii) general equity principles regardless of whether such enforceability is considered in a proceeding in equity or at law; and (iii) the extent, if any, that the provisions of Sections 10 and 11 or 12 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 savings institutions insured by the FDIC (including the laws relating to the rights of the contracting parties to equitable remedies).
(b) The Plan has been approved by the OTS.
(c) The Registration Statement was declared effective by the Commission on ____________, 2008, 2006; and no stop order has been issued with respect thereto and no proceedings therefore have been initiated or, to the best knowledge of the Primary Parties, threatened by the Commission. At the time the Registration Statement (Statement, including the Prospectus contained therein) therein (including any amendment or supplement thereto), became effective, the Registration Statement (including the Prospectus contained therein) complied as to form in all material respects with the 1933 Act and the regulations promulgated thereunder and the Registration Statement (Statement, including the Prospectus contained thereintherein (including any amendment or supplement thereto), any Blue Sky Application or any Sales Information (as such terms are defined in Section 10 hereof) authorized by the Primary Parties for use in connection with the Offering did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. At , and at the time any Rule 424(b) or (c) Prospectus was filed with the Commission and at the Closing Time Date referred to in Section 5, the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto), and any Blue Sky Application or any Sales Information authorized by the Primary Parties for use in connection with the Offerings Offering will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties in this Section 6(b6(c) shall not apply to statements or omissions made in reliance upon and in conformity with written information furnished to the Primary Parties by the Agent expressly regarding the Agent for use under the captions “MARKET FOR THE COMMON STOCKMarket for the Common Stock” and “The CONVERSION – Reorganization and Offering—Marketing and Underwriting Arrangements” or written statements or omissions from any Blue Sky Application sales information or any Sales Informationinformation filed pursuant to state securities or blue sky laws or regulations regarding the Agent.
(cd) At the time of filing the Registration Statement relating to the offering of the Shares and at the date hereof, the Holding Company was not, and is not, an ineligible issuer, as defined in Rule 405. At the time of the filing of the Registration Statement and at the time of the use of any issuer free writing prospectus, as defined in Rule 433(h), the Holding Company met the conditions required by Rules 164 and 433 for the use of a free writing prospectus. If required to be filed, the Holding Company has filed any issuer free writing prospectus related to the offered Shares at the time it is required to be filed under Rule 433 and, if not required to be filed, will retain such free writing prospectus in the Holding Company’s records pursuant to Rule 433(g) and if any issuer free writing prospectus is used after the date hereof in connection with the offering of the Shares the Holding Company will file or retain such free writing prospectus as required by Rule 433.
(de) As of the Applicable Time (as hereinafter defined)Time, neither (i) the Issuer-Represented General Free Writing Prospectus(es) issued at or prior to the Applicable Time and the Statutory Prospectus, all considered together (collectively, the “General Disclosure Package”), nor (ii) any individual Issuer-Represented Limited-Use Free Writing Prospectus, when considered together with the General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from any Prospectus included in the Registration Statement relating to the offered Shares or any Issuer-Represented Free Writing Prospectus based upon and in conformity with written information furnished to the Primary Parties Holding Company by the Agent specifically for use therein. As used in this paragraph and elsewhere in this Agreement:
Appears in 1 contract
Representations and Warranties of the Primary Parties. The Primary Parties jointly and severally represent and warrant to the Agent that, except as disclosed in the Prospectus:
(a) The MHC, the Mid-Tier Holding Company Company, the Holding Company, and LMIC have and, as of the Closing Time, will Bank have all such power, authority, authorizations, approvals approvals, and orders as may be required to enter into this Agreement, and, as of the Closing Date, the MHC, the Mid-Tier Holding Company, the Holding Company, and the Bank will have all such power, authority, authorizations, approvals, and orders as may be required to carry out the provisions and conditions hereof and to issue and sell the Shares as provided herein and as described in the Prospectus. Subject to the receipt of member and regulatory approval, the The consummation of the Conversion and the ReorganizationConversion, the execution, delivery delivery, and performance of this Agreement and the Letter Agreement Agreement, and the consummation of the transactions contemplated herein contemplated, have been duly and validly authorized by all necessary corporate action on the part of the MHC, the Mid-Tier Holding Company Company, the Holding Company, and LMICthe Bank. This Agreement has been validly executed and delivered by the Holding Company and LMICPrimary Parties, and is a valid, legal legal, and binding obligation of the Holding Company and LMICPrimary Parties, in each case enforceable in accordance with its terms, except as the legality, validity, binding nature and enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium, conservatorship, receivership or other similar laws relating to or affecting the enforcement of creditors’ rights generally; (ii) general equity principles regardless of whether such enforceability is considered in a proceeding in equity or at law; and (iii) the extent, if any, that the provisions of Sections 11 or and 12 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 savings institutions insured by the FDIC (including the laws relating to the rights of the contracting parties to equitable remedies).
(b) The Registration Statement was declared effective by the Commission on _________, 2008, and no 2014. No stop order has been issued with respect thereto and no to the Registration Statement. No proceedings therefore related to the Registration Statement have been initiated or, to the best knowledge of the Primary Parties, threatened by the Commission. At the time the Registration Statement (Statement, including the Prospectus contained therein) therein (including any amendment or supplement thereto), became effective, the Registration Statement (including the Prospectus contained therein) complied as to form in all material respects with the 1933 Act and the regulations promulgated thereunder 1933 Act Regulations and the Registration Statement (Statement, including the Prospectus contained thereintherein (including any amendment or supplement thereto), any Blue Sky Application or any Sales Information (as such terms are defined in Section 11 hereof) authorized by the Primary Parties for use in connection with the Offering, did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. At the time any Rule 424(b) or (c) Prospectus was filed with the Commission and at the Closing Time Date referred to in Section 5, the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto)) and, and when taken together with the Prospectus, any Blue Sky Application (if applicable) or any Sales Information (as defined below) authorized for use by any of the Primary Parties for use in connection with the Offerings Offering, will 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; provided, however, that the representations and warranties in this Section 6(b) shall not apply to statements or omissions made in reliance upon and in conformity with written information furnished to the Primary Parties by the Agent expressly regarding the Agent for use under the captions “MARKET FOR THE COMMON STOCK” and caption “The CONVERSION Conversion and Offering – Marketing Plan of Distribution; Selling Agent and Underwriting ArrangementsUnderwriter Compensation” or written statements in or omissions from any Blue Sky Application Sales Information or any Sales Informationinformation filed pursuant to state securities or blue sky laws or regulations regarding the Agent.
(c) At the time of filing the Registration Statement and at the date hereof, the Holding Company was not, and is not, an ineligible issuer, as defined in Rule 405. At the time of the filing of the Registration Statement and at the time of the use of any issuer free writing prospectus, as defined in Rule 433(h), the Holding Company met the conditions required by Rules 164 and 433 for the use of a free writing prospectus. If required to be filed, the Holding Company has filed any issuer free writing prospectus related to the offered Offer Shares at the time it is required to be filed under Rule 433 and, if not required to be filed, will retain such free writing prospectus in the Holding Company’s records pursuant to Rule 433(g) and if any issuer free writing prospectus is used after the date hereof in connection with the offering of the Shares the Holding Company will file or retain such free writing prospectus as required by Rule 433.
(d) As of the Applicable Time (as hereinafter defined)Time, neither (i) the Issuer-Represented General Free Writing Prospectus(es) issued at or prior to the Applicable Time and the Statutory Prospectus, all considered together (collectively, the “General Disclosure Package”), nor (ii) any individual Issuer-Represented Limited-Use Free Writing Prospectus, when considered together with the General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from any Prospectus included in the Registration Statement relating to the offered Offer Shares or any Issuer-Represented Free Writing Prospectus based upon and in conformity with written information furnished to the Primary Parties Holding Company by the Agent specifically for use therein. As used in this paragraph and elsewhere in this Agreement:
Appears in 1 contract
Representations and Warranties of the Primary Parties. The Primary Parties jointly and severally represent and warrant to the Agent that, except as disclosed in the Prospectus:
(a) The Holding Company Bank has, and LMIC have and, as of the Closing TimeDate, the MHC and the Holding Company will have have, all such power, authority, authorizations, approvals and orders as may be required to enter into this Agreement, to carry out the provisions and conditions hereof and to issue and sell the Shares as provided herein and as described in the Prospectus. Subject to the receipt of member and regulatory approval, the The consummation of the Conversion and the Reorganization, the execution, delivery and performance of this Agreement and the Letter Agreement and the consummation of the transactions herein contemplated, contemplated have been duly and validly authorized by all necessary corporate action on the part of the Bank and, as of the Closing Date, will have been duly and validly authorized by all necessary corporate action on the part of the MHC and the Holding Company and LMICCompany. This Agreement has been validly executed and delivered by the Holding Company Company, the MHC and LMICthe Bank, and is a valid, legal and binding obligation of the Bank, the Holding Company and LMICthe MHC, in each case enforceable in accordance with its terms, except as the legality, validity, binding nature and enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium, conservatorship, receivership or other similar laws relating to or affecting the enforcement of creditors’ rights generally; (ii) general equity principles regardless of whether such enforceability is considered in a proceeding in equity or at law; and (iii) the extent, if any, that the provisions of Sections 10 and 11 or 12 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 savings institutions insured by the FDIC (including the laws relating to the rights of the contracting parties to equitable remedies).
(b) The Plan has been approved by the OTS.
(c) The Registration Statement was declared effective by the Commission on _________________, 2008, 2004; and no stop order has been issued with respect thereto and no proceedings therefore have been initiated or, or to the best knowledge of the Primary Parties, Parties threatened by the Commission. At the time the Registration Statement (Statement, including the Prospectus contained therein) therein (including any amendment or supplement thereto), became effective, the Registration Statement (including the Prospectus contained therein) complied as to form in all material respects with the 1933 Act and the regulations promulgated thereunder and the Registration Statement (Statement, including the Prospectus contained thereintherein (including any amendment or supplement thereto), any Blue Sky Application or any Sales Information (as such terms are defined in Section 10 hereof) authorized by the Primary Parties for use in connection with the Offerings did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. At , and at the time any Rule 424(b) or (c) Prospectus was filed with the Commission and at the Closing Time Date referred to in Section 5, the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto), and any Blue Sky Application or any Sales Information authorized by the Primary Parties for use in connection with the Offerings will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties in this Section 6(b6(c) shall not apply to statements or omissions made in reliance upon and in conformity with written information furnished to the Primary Parties by the Agent expressly regarding the Agent for use under the captions “MARKET FOR THE COMMON STOCK” "Market for the Common Stock" and “"The CONVERSION – Marketing Reorganization and Underwriting Stock Offering --Marketing Arrangements” " or written statements or omissions from any Blue Sky Application sales information or any Sales Informationinformation filed pursuant to state securities or blue sky laws or regulations regarding the Agent.
(cd) At The MHC Notice and Application, including the time Prospectus, was approved by the OTS on __________________, 2004; the Proxy Statement of filing the Registration Statement Bank relating to the special meeting of the members of the Bank at which the Plan shall be considered for approval by the Bank's eligible voting members (the "Proxy Statement") and the Prospectus (including any amendment or supplement thereto) was authorized for use by the OTS, and at all times subsequent thereto until the date hereofClosing Date, the Holding Company was notMHC Notice and Application, including the Prospectus, did and is not, an ineligible issuer, will comply as defined to form in Rule 405all material respects with the Conversion Regulations and any other applicable rules and regulations of the OTS (except as modified or waived in writing by the OTS). At the time of the filing of the Registration Statement approval and at all times subsequent thereto until the time of Closing Date, the use of MHC Notice and Application, including the Prospectus (including any issuer free writing prospectus, as defined in Rule 433(hamendment or supplement thereto), the Holding Company met the conditions required by Rules 164 did not and 433 for the use of a free writing prospectus. If required to be filed, the Holding Company has filed any issuer free writing prospectus related to the offered Shares at the time it is required to be filed under Rule 433 and, if does not required to be filed, will retain such free writing prospectus in the Holding Company’s records pursuant to Rule 433(g) and if any issuer free writing prospectus is used after the date hereof in connection with the offering of the Shares the Holding Company will file or retain such free writing prospectus as required by Rule 433.
(d) As of the Applicable Time (as hereinafter defined), neither (i) the Issuer-Represented General Free Writing Prospectus(es) issued at or prior to the Applicable Time and the Statutory Prospectus, all considered together (collectively, the “General Disclosure Package”), nor (ii) any individual Issuer-Represented Limited-Use Free Writing Prospectus, when considered together with the General Disclosure Package, included include any untrue statement of a material fact or omitted omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does ; provided, however, that representations or warranties in this subsection (d) shall not apply to statements in or omissions from any Prospectus included made in the Registration Statement relating to the offered Shares or any Issuer-Represented Free Writing Prospectus based reliance upon and in conformity with written information furnished to the Primary Parties by the Agent specifically expressly regarding the Agent for use in Prospectus contained in the MHC Notice and Application under the captions "Market for the Common Stock" and "The Reorganization and Stock Offering --Marketing Arrangements" or written statements or omissions from any sales information or information filed pursuant to state securities or blue sky laws or regulations regarding the Agent.
(e) No order has been issued by the OTS, the Commission, or any state regulatory authority, preventing or suspending the use of the Prospectus and no action by or before any such government entity to revoke any approval, authorization or order of effectiveness related to the Reorganization is pending or, to the best knowledge of the Primary Parties, threatened.
(f) The Plan has been duly adopted by the Board of Directors of the Bank. To the best knowledge of the Primary Parties, no person has, or at the Closing Date will have, sought to obtain review of the final action of the OTS in approving the Plan, the Reorganization, or the OTS Applications, pursuant to the HOLA or any other statute or regulation.
(g) The Holding Company has filed with the OTS the Holding Company Application (including the Merger Application) and as of the Closing Date the OTS will have approved of the Holding Company's acquisition of the Bank.
(h) RP Financial, LC, which prepared the appraisal of the aggregate pro forma market value of the Holding Company and the Bank on which the Offerings were based (the "Appraisal"), has advised the Primary Parties in writing that it is independent with respect to each of the Primary Parties within the meaning of the Conversion Regulations.
(i) ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, PC, which certified the financial statements filed as part of the Registration Statement and the MHC Notice and Application, have each advised the Primary Parties that each is, with respect to each of the Primary Parties, an independent certified public accountant within the meaning of 12 C.F.R. Sections 563c.3 and 571.2(c)(3) and under the 1933 Act and the Regulations promulgated thereunder.
(j) The financial statements and the notes thereto which are included in the Registration Statement and which are a part of the Prospectus present fairly the financial condition and retained earnings of the Bank as of the dates indicated and the results of operations and cash flows for the periods specified. The financial statements comply in all material respects with the applicable accounting requirements of Title 12 of the Code of Federal Regulations, Regulation S-X of the Commission and generally accepted accounting principles ("GAAP") applied on a consistent basis during the periods presented except as otherwise noted therein, and present fairly in all material respects the information required to be stated therein. The other financial, statistical and pro forma information and related notes included in the Prospectus present fairly the information shown therein on a basis consistent with the audited and unaudited financial statements included in the Prospectus, and as to the pro forma adjustments, the adjustments made therein have been properly applied on the basis described therein.
(k) Since the respective dates as of which information is given in the Registration Statement, including the Prospectus; (i) there has not been any material adverse change in the financial condition or in the earnings, capital, properties or business affairs of any of the Primary Parties or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; (ii) there has not been any change in total assets of the Bank in an amount greater than $600,000, any material increase in the aggregate amount of loans past due ninety (90) days or more, or any real estate acquired by foreclosure or loans characterized as "in substance foreclosure"; nor has the Bank issued any securities or incurred any liability or obligation for borrowings other than in the ordinary course of business; (iii) there have not been any material transactions entered into by any of the Primary Parties, other than those in the ordinary course of business; and (iv) the capitalization, liabilities, assets, properties and business of the Primary Parties conform in all material respects to the descriptions thereof contained in the Prospectus and none of the Primary Parties has any material liabilities of any kind, contingent or otherwise, except as disclosed in Registration Statement or the Prospectus.
(l) As used of the Closing Date, the Holding Company will be a corporation duly organized and in this paragraph good standing under the federal laws of the United States, with corporate power authority to own its properties and elsewhere to conduct its business as described in this Agreement:the Prospectus, and will be qualified to transact business and in good standing in each jurisdiction in which the conduct of business requires such qualification unless the failure to qualify in one or more of such jurisdictions would not have a material adverse effect on the financial condition, earnings, capital, properties or business affairs of the Primary Parties. As of the Closing Date, the Holding Company will have obtained all licenses, permits and other governmental authorizations required for the conduct of its business, except those that individually or in the aggregate would not materially adversely affect the financial condition, earnings, capital, assets, properties or business of the Primary Parties taken as a whole; and as of the Closing Date, all such licenses, permits and governmental authorizations will be in full force and effect, and the Holding Company will be in compliance therewith in all material respects.
(m) As of the Closing Date, the MHC will be duly organized and will be validly existing as a federally chartered mutual holding company under the laws of the United States, duly authorized to conduct its business and own its property as described in the Registration Statement and the Prospectus; as of the Closing Date, the MHC will have obtained all licenses, permits and other governmental authorizations required for the conduct of its business except those that individually or in the aggregate would not materially adversely affect the financial condition, earnings, capital, assets or properties of the Primary Parties taken as a whole; as of the Closing Date, all such licenses, permits and governmental authorizations will be in full force and effect and the MHC will be in compliance therewith in all material respects; as of the Closing Date, the MHC will be duly qualified as a foreign corporation to transact business in each jurisdiction in which the failure to be so qualified in one or more of such jurisdictions would have a material adverse effect on the financial condition, earnings, capital, assets, properties or business of the Primary Parties.
(n) The MHC does not, and as of the Closing Date, will not own any equity securities or any equity interest in any business enterprise except as described in the Prospectus.
(o) The MHC is not authorized to issue any shares of capital stock.
(p) The Bank is duly organized and validly existing federally chartered savings association in mutual form, duly authorized to conduct its business as described in the Prospectus; the activities of the Bank are permitted by the rules, regulations and practices of the OTS; the Bank has obtained all licenses, permits and other governmental authorizations currently required for the conduct of its business except those that individually or in the aggregate would not materially adversely affect the financial condition of the Primary Parties taken as a whole; all such licenses, permits and other governmental authorizations are in full force and effect and the Bank is in good standing under the laws of the United States and is duly qualified as a foreign corporation to transact business in each jurisdiction in which failure to so qualify would have a material adverse effect upon the financial condition, earnings, capital, properties or business affairs of the Bank; all of the issued and outstanding capital stock of the Bank after the Reorganization will be duly and validly issued and fully paid and nonassessable; and the Holding Company will directly own all of such capital stock free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction. The Bank does not own equity securities or any equity interest in any other business enterprise except as otherwise described in the Prospectus.
(q) The Bank is a member of the Federal Home Loan Bank of Boston ("FHLB of Boston"); the deposit accounts of the Bank are insured by the FDIC up to applicable limits. Upon consummation of the Reorganization, the rights of the members of the Bank in its mutual form shall be transferred to MHC in accordance with the Plan and the requirements of the Conversion Regulations.
(r) The Bank is not authorized to issue any shares of capital stock.
(s) Upon consummation of the Reorganization, the authorized, issued and outstanding equity capital of the Holding Company will be within the range set forth in the Prospectus under the caption "Capitalization" and, except for the shares of Common Stock held by MHC, no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date; and the shares of Common Stock to be subscribed for in the Offering have been duly and validly authorized for issuance and, when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan and the Prospectus, will be duly and validly issued and fully paid and nonassessable; the issuance of the Shares is not subject to preemptive rights, except for the Subscription Rights granted pursuant to the Plan; and the terms and provisions of the shares of Common Stock will conform in all material respects to the description thereof contained in the Prospectus. Upon issuance of the Shares, good title to the Shares will be transferred from the Holding Company to the purchasers of Shares against payment therefor in the Offering as set forth in the Plan and the Prospectus.
(t) The Bank is not, and as of the Closing Date neither the Holding Company nor the MHC will be, in violation of their respective articles of incorporation or charter or their respective bylaws, or in material default in the performance or observance of any obligation, agreement, covenant, or condition contained in any contract, lease, loan agreement, indenture or other instrument to which they are a party or by which they, or any of their respective property, may be bound which would result in a material adverse change in the condition (financial or otherwise), earnings, capital, properties or assets. The consummation of the transactions herein contemplated will not (i) conflict with or constitute a breach of, or default under, the articles of incorporation, charter or bylaws of the Bank or, as of the Closing Date, the Holding Company or the MHC, or materially conflict with or constitute a material breach of, or default under,
Appears in 1 contract
Representations and Warranties of the Primary Parties. The Primary Parties jointly and severally represent and warrant to the Agent that, except as disclosed in the Prospectus:
(a) The Holding Company and LMIC have and, as of the Closing Time, will Primary Parties have all such power, authority, authorizations, approvals and orders as may be required to enter into this Agreement, to carry out the provisions and conditions hereof and to issue and sell the Shares as provided herein and as described in the Prospectus, subject to the various limitations and required approvals described therein. Subject to the receipt of member and regulatory approval, the consummation of the Conversion and the ReorganizationOffering, the execution, delivery and performance of this Agreement and the Letter Agreement and the consummation of the transactions herein contemplated, contemplated have been duly and validly authorized by all necessary corporate action on the part of the Holding Company and LMICPrimary Parties as of the Closing Date. This Agreement has been validly executed and delivered by the Holding Company and LMICPrimary Parties, and is a valid, legal and binding obligation of the Holding Company and LMIC, Primary Parties enforceable in accordance with its terms, except as the legality, validity, binding nature and enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium, conservatorship, receivership or other similar laws relating to or affecting the enforcement of creditors’ rights generally; (ii) general equity principles regardless of whether such enforceability is considered in a proceeding in equity or at law; and (iii) the extent, if any, that the provisions of Sections 10 and 11 or 12 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 savings institutions insured by the FDIC (including the laws relating to the rights of the contracting parties to equitable remedies).
(b) The Plan has been approved by the OTS.
(c) The Registration Statement was declared effective by the Commission on , 2008, [SEC Effective Date]; and no stop order has been issued with respect thereto and no proceedings 5 NEXT PAGE therefore have been initiated or, to the best knowledge of the Primary Parties, threatened by the Commission. At the time the Registration Statement (Statement, including the Prospectus contained therein) therein (including any amendment or supplement thereto), became effective, the Registration Statement (including the Prospectus contained therein) complied as to form in all material respects with the 1933 Act and the regulations promulgated thereunder and the Registration Statement (Statement, including the Prospectus contained thereintherein (including any amendment or supplement thereto), any Blue Sky Application or any Sales Information (as such terms are defined in Section 10 hereof) authorized by the Primary Parties for use in connection with the Offering did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. At , and at the time any Rule 424(b) or (c) Prospectus was filed with the Commission and at the Closing Time Date referred to in Section 5, the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto), and any Blue Sky Application or any Sales Information authorized by the Primary Parties for use in connection with the Offerings will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties in this Section 6(b6(c) shall not apply to statements or omissions made in reliance upon and in conformity with written information furnished to the Primary Parties by the Agent expressly regarding the Agent for use under the captions “MARKET FOR THE COMMON STOCK” "Market for the Common Stock" and “"The CONVERSION – Offering--Plan of Distribution and Marketing and Underwriting Arrangements” " or written statements or omissions from any Blue Sky Application sales information or any Sales Informationinformation filed pursuant to state securities or blue sky laws or regulations regarding Agent.
(cd) At the time of filing the Registration Statement relating to the offering of the Shares and at the date hereof, the Holding Company was not, and is not, an ineligible issuer, as defined in Rule 405. At the time of the filing of the Registration Statement and at the time of the use of any issuer free writing prospectus, as defined in Rule 433(h), the Holding Company met the conditions required by Rules 164 and 433 for the use of a free writing prospectus. If required to be filed, the Holding Company has filed any issuer free writing prospectus related to the offered Shares at the time it is required to be filed under Rule 433 and, if not required to be filed, will retain such free writing prospectus in the Holding Company’s 's records pursuant to Rule 433(g) and if any issuer free writing prospectus is used after the date hereof in connection with the offering of the Shares the Holding Company will file or retain such free writing prospectus as required by Rule 433.
(de) As of the Applicable Time (as hereinafter defined)Time, neither (i) the Issuer-Represented General Free Writing Prospectus(es) issued at or prior to the Applicable Time and the Statutory Prospectus, all considered together (collectively, the “"General Disclosure Package”"), nor (ii) any individual Issuer-Represented Limited-Use Free Writing Prospectus, when considered together with the General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from any Prospectus included in the Registration Statement relating to the offered Shares or any Issuer-Represented Free Writing Prospectus based upon and in conformity with written information furnished to the Primary Parties Holding Company by the Agent specifically for use therein. As used in this paragraph and elsewhere in this Agreement:: 6 NEXT PAGE
Appears in 1 contract
Representations and Warranties of the Primary Parties. The Primary Parties jointly and severally represent and warrant to the Agent that, except as disclosed in the Prospectus:
(a) The MHC, the Mid-Tier Holding Company, the Holding Company and LMIC have and, as of the Closing Time, will Bank have all such power, authority, authorizations, approvals and orders as may be required to enter into this Agreement, and, as of the Closing Date, the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank will have all such power, authority, authorizations, approvals and orders as may be required to carry out the provisions and conditions hereof and to issue and sell the Offer Shares and to issue the Exchange Shares as provided herein and as described in the Prospectus. Subject to the receipt of member and regulatory approval, the The consummation of the Conversion and the ReorganizationConversion, the execution, delivery and performance of this Agreement and the Letter Agreement and the consummation of the transactions contemplated herein contemplated, have been duly and validly authorized by all necessary corporate action on the part of the MHC, the Mid-Tier Holding Company, the Holding Company and LMICthe Bank. This Agreement has been validly executed and delivered by the Holding Company and LMICPrimary Parties, and is a valid, legal and binding obligation of the Holding Company and LMICPrimary Parties, in each case enforceable in accordance with its terms, except as the legality, validity, binding nature and enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium, conservatorship, receivership or other similar laws relating to or affecting the enforcement of creditors’ rights generally; (ii) general equity principles regardless of whether such enforceability is considered in a proceeding in equity or at law; and (iii) the extent, if any, that the provisions of Sections 11 or and 12 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 savings institutions insured by the FDIC (including the laws relating to the rights of the contracting parties to equitable remedies).
(b) The Registration Statement was declared effective by the Commission on May 14, 2008, and no 2010. No stop order has been issued with respect thereto and no to the Registration Statement. No proceedings therefore related to the Registration Statement have been initiated or, to the best knowledge of the Primary Parties, threatened by the Commission. At the time the Registration Statement (Statement, including the Prospectus contained therein) therein (including any amendment or supplement thereto), became effective, the Registration Statement (including the Prospectus contained therein) complied as to form in all material respects with the 1933 Act and the regulations promulgated thereunder 1933 Act Regulations and the Registration Statement (Statement, including the Prospectus contained thereintherein (including any amendment or supplement thereto), any Blue Sky Application or any Sales Information (as such terms are defined in Section 11 hereof) authorized by the Primary Parties for use in connection with the Offering, did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. At the time any Rule 424(b) or (c) Prospectus was filed with the Commission and at the Closing Time Date referred to in Section 5, the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto)) and, and when taken together with the Prospectus, any Blue Sky Application (if applicable) or any Sales Information authorized for use by any of the Primary Parties for use in connection with the Offerings Offering, will 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; provided, however, that the representations and warranties in this Section 6(b) shall not apply to statements or omissions made in reliance upon and in conformity with written information furnished to the Primary Parties by the Agent expressly regarding the Agent for use under the captions “MARKET FOR THE COMMON STOCK” and caption “The CONVERSION Conversion and Offering – Marketing and Underwriting ArrangementsPlan of Distribution; Selling Agent Compensation” or written statements or omissions from any Blue Sky Application sales information or any Sales Informationinformation filed pursuant to state securities or blue sky laws or regulations regarding the Agent.
(c) At the time of filing the Registration Statement and at the date hereof, the Holding Company was not, and is not, an ineligible issuer, as defined in Rule 405 of the 1933 Act (“Rule 405”). At the time of the filing of the Registration Statement and at the time of the use of any issuer free writing prospectus, as defined in Rule 433(h)) of the 1933 Act, the Holding Company met the conditions required by Rules 164 and 433 of the 1933 Act for the use of a free writing prospectus. If required to be filed, the Holding Company has filed any issuer free writing prospectus related to the offered Offer Shares at the time it is required to be filed under Rule 433 of the 1933 Act and, if not required to be filed, will retain such free writing prospectus in the Holding Company’s records pursuant to Rule 433(g) of the 1933 Act and if any issuer free writing prospectus is used after the date hereof in connection with the offering of the Shares the Holding Company will file or retain such free writing prospectus as required by Rule 433433 of the 1933 Act.
(d) As of the Applicable Time (as hereinafter defined)Time, neither (i) the Issuer-Represented General Free Writing Prospectus(es) issued at or prior to the Applicable Time and the Statutory Prospectus, all considered together (collectively, the “General Disclosure Package”), nor (ii) any individual Issuer-Represented Limited-Use Free Writing Prospectus, when considered together with the General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from any Prospectus included in the Registration Statement relating to the offered Offer Shares or any Issuer-Represented Free Writing Prospectus based upon and in conformity with written information furnished to the Primary Parties Holding Company by the Agent specifically for use therein. As used in this paragraph and elsewhere in this Agreement:
Appears in 1 contract
Representations and Warranties of the Primary Parties. The Primary Parties jointly and severally represent and warrant to the Agent that, except as disclosed in the Prospectus:
(a) The Holding Company and LMIC have Each of the Primary Parties has and, as of the Closing Time, will have all such power, authority, authorizations, approvals and orders as may be required to enter into this Agreement, to carry out the provisions and conditions hereof and to issue and sell the Shares as provided herein and as described in the Prospectus. Subject to the receipt of member and regulatory approval, the consummation of the Conversion and the Reorganization, the execution, delivery and performance of this Agreement and the Letter Agreement and the consummation of the transactions herein contemplated, contemplated have been duly and validly authorized by all necessary corporate action on the part of each of the Holding Company and LMICPrimary Parties. This Agreement has been validly executed and delivered by each of the Holding Company and LMICPrimary Parties, and is a valid, legal and binding obligation of each of the Holding Company and LMICPrimary Parties, enforceable in accordance with its terms, except as the legality, validity, binding nature and enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium, conservatorship, receivership or other similar laws relating to or affecting the enforcement of creditors’ rights generally; (ii) general equity principles regardless of whether such enforceability is considered in a proceeding in equity or at law; and (iii) the extent, if any, that the provisions of Sections 11 or 12 hereof may be unenforceable as against public policy.
(b) The Registration Statement was declared effective by the Commission on , 20082009, and no stop order has been issued with respect thereto and no proceedings therefore therefor have been initiated or, to the best knowledge of the Primary Parties, threatened by the Commission. At the time the Registration Statement (including the Prospectus contained therein) became effective, the Registration Statement (including the Prospectus contained therein) complied as to form in all material respects with the 1933 Act and the regulations promulgated thereunder thereunder, and the Registration Statement (including the Prospectus contained therein) did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. At the time any Rule 424(b) or (c) Prospectus was filed with the Commission and at the Closing Time referred to in Section 5, the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto), and any Blue Sky Application state securities law application or any Sales Information sales information authorized by the Primary Parties for use in connection with the Offerings Offering did not and will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties in this Section 6(b) shall not apply to statements or omissions made in reliance upon and in conformity with written information furnished to the Primary Parties by the Agent expressly regarding the Agent or the method of conducting the Offering expressly for use under in the captions “MARKET FOR THE COMMON STOCK” and “The CONVERSION – Marketing and Underwriting Arrangements” Registration Statement or Prospectus or written statements or omissions from any Blue Sky Application sales information or any Sales Informationinformation filed pursuant to state securities or blue sky laws or regulations.
(c) At the time of filing the Registration Statement and at the date hereof, the Holding Company HoldCo was not, and is not, an ineligible issuer, as defined in Rule 405. At the time of the filing of the Registration Statement and at the time of the use of any issuer free writing prospectus, as defined in Rule 433(h), the Holding Company HoldCo met the conditions required by Rules 164 and 433 for the use of a free writing prospectus. If required to be filed, the Holding Company ▇▇▇▇▇▇ has filed any issuer free writing prospectus related to the offered Shares at the time it is required to be filed under Rule 433 and, if not required to be filed, will retain such free writing prospectus in the Holding CompanyHoldCo’s records pursuant to Rule 433(g) and if any issuer free writing prospectus is used after the date hereof in connection with the offering of the Shares the Holding Company Shares, HoldCo will file or retain such free writing prospectus as required by Rule 433.
(d) As of the Applicable Time (as hereinafter defined), neither (i) the Issuer-Represented General Free Writing Prospectus(es) issued at or prior to the Applicable Time and the Statutory Prospectus, all considered together (collectively, the “General Disclosure Package”), nor (ii) any individual Issuer-Represented Limited-Use Free Writing Prospectus, when considered together with the General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from any Prospectus included in the Registration Statement relating to the offered Shares or any Issuer-Represented Free Writing Prospectus based upon and in conformity with written information furnished to any of the Primary Parties by the Agent specifically for use therein. As used in this paragraph Paragraph and elsewhere in this Agreement:
Appears in 1 contract
Representations and Warranties of the Primary Parties. The Primary Parties jointly and severally represent and warrant to the Agent that, except as disclosed in the Prospectus:
(a) The MHC, the Mid-Tier Holding Company, the Holding Company and LMIC have and, as of the Closing Time, will Bank have all such power, authority, authorizations, approvals and orders as may be required to enter into this Agreement, and, as of the Closing Date, the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank will have all such power, authority, authorizations, approvals and orders as may be required to carry out the provisions and conditions hereof and to issue and sell the Offer Shares and to issue the Exchange Shares as provided herein and as described in the Prospectus. Subject to the receipt of member and regulatory approval, the The consummation of the Conversion and the ReorganizationConversion, the execution, delivery and performance of this Agreement and the Letter Agreement and the consummation of the transactions contemplated herein contemplated, have been duly and validly authorized by all necessary corporate action on the part of the MHC, the Mid-Tier Holding Company, the Holding Company and LMICthe Bank. This Agreement has been validly executed and delivered by the Holding Company and LMICPrimary Parties, and is a valid, legal and binding obligation of the Holding Company and LMICPrimary Parties, in each case enforceable in accordance with its terms, except as the legality, validity, binding nature and enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium, conservatorship, receivership or other similar laws relating to or affecting the enforcement of creditors’ rights generally; (ii) general equity principles regardless of whether such enforceability is considered in a proceeding in equity or at law; and (iii) the extent, if any, that the provisions of Sections 11 or and 12 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 savings institutions insured by the FDIC (including the laws relating to the rights of the contracting parties to equitable remedies).
(b) The Registration Statement was declared effective by the Commission on [ ], 2008, and no 2010. No stop order has been issued with respect thereto and no to the Registration Statement. No proceedings therefore related to the Registration Statement have been initiated or, to the best knowledge of the Primary Parties, threatened by the Commission. At the time the Registration Statement (Statement, including the Prospectus contained therein) therein (including any amendment or supplement thereto), became effective, the Registration Statement (including the Prospectus contained therein) complied as to form in all material respects with the 1933 Act and the regulations promulgated thereunder 1933 Act Regulations and the Registration Statement (Statement, including the Prospectus contained thereintherein (including any amendment or supplement thereto), any Blue Sky Application or any Sales Information (as such terms are defined in Section 11 hereof) authorized by the Primary Parties for use in connection with the Offering, did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. At the time any Rule 424(b) or (c) Prospectus was filed with the Commission and at the Closing Time Date referred to in Section 5, the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto)) and, and when taken together with the Prospectus, any Blue Sky Application (if applicable) or any Sales Information (as defined in Section 11 hereof) authorized for use by any of the Primary Parties for use in connection with the Offerings Offering, will 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; provided, however, that the representations and warranties in this Section 6(b) shall not apply to statements or omissions made in reliance upon and in conformity with written information furnished to the Primary Parties by the Agent expressly regarding the Agent for use under the captions “MARKET FOR THE COMMON STOCK” and caption “The CONVERSION Conversion and Offering – Marketing and Underwriting Arrangements” or written statements in or omissions from any Blue Sky Application sales information or any Sales Informationinformation filed pursuant to state securities or blue sky laws or regulations regarding the Agent.
(c) At the time of filing the Registration Statement and at the date hereof, the Holding Company was not, and is not, an ineligible issuer, as defined in Rule 405. At the time of the filing of the Registration Statement and at the time of the use of any issuer free writing prospectus, as defined in Rule 433(h), the Holding Company met the conditions required by Rules 164 and 433 for the use of a free writing prospectus. If required to be filed, the Holding Company has filed any issuer free writing prospectus related to the offered Offer Shares at the time it is required to be filed under Rule 433 and, if not required to be filed, will retain such free writing prospectus in the Holding Company’s records pursuant to Rule 433(g) and if any issuer free writing prospectus is used after the date hereof in connection with the offering of the Shares the Holding Company will file or retain such free writing prospectus as required by Rule 433.
(d) As of the Applicable Time (as hereinafter defined)Time, neither (i) the Issuer-Represented General Free Writing Prospectus(es) issued at or prior to the Applicable Time and the Statutory Prospectus, all considered together (collectively, the “General Disclosure Package”), nor (ii) any individual Issuer-Represented Limited-Use Free Writing Prospectus, when considered together with the General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from any Prospectus included in the Registration Statement relating to the offered Shares or any Issuer-Represented Free Writing Prospectus based upon and in conformity with written information furnished to the Primary Parties Holding Company by the Agent specifically for use therein. As used in this paragraph and elsewhere in this Agreement:
Appears in 1 contract
Representations and Warranties of the Primary Parties. The Primary Parties jointly and severally represent and warrant to the Agent that, except as disclosed in the Prospectus:
(a) The MHC, the Mid-Tier Holding Company and LMIC have and, as of the Closing Time, will Bank have all such power, authority, authorizations, approvals and orders as may be required to enter into this Agreement, and, as of the Closing Date, the MHC, the Holding Company and the Bank will have all such power, authority, authorizations, approvals and orders as may be required to carry out the provisions and conditions hereof and to issue and sell the Shares as provided herein and as described in the Prospectus. Subject to the receipt of member and regulatory approval, the The consummation of the Conversion and the ReorganizationConversion, the execution, delivery and performance of this Agreement and the Letter Agreement and the consummation of the transactions contemplated herein contemplated, have been duly and validly authorized by all necessary corporate action on the part of the MHC, the Holding Company and LMICthe Bank. This Agreement has been validly executed and delivered by the Holding Company and LMICPrimary Parties, and is a valid, legal and binding obligation of the Holding Company and LMICPrimary Parties, in each case enforceable in accordance with its terms, except as the legality, validity, binding nature and enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium, reorganization, conservatorship, receivership or other similar laws relating to or affecting the enforcement of creditors’ ' rights generally; , (ii) general equity principles regardless of whether such enforceability is considered in a proceeding in equity or at law; , and (iii) the extent, if any, that the provisions of Sections 11 or 12 hereof may be unenforceable as against public policy.
(b) The Registration Statement was declared effective by the Commission on __________, 2008, and no 2001. No stop order has been issued with respect thereto and no to the Prospectus. No proceedings therefore related to the Prospectus have been initiated or, to the best knowledge of the Primary Parties, or threatened by the Commission. At the time the Registration Statement (Statement, including the Prospectus contained therein) therein (including any amendment or supplement thereto), became effective, the Registration Statement (including the Prospectus contained therein) complied as to form in all material respects with the 1933 Act and the regulations promulgated thereunder thereunder. The Registration Statement and the Registration Statement (including the Prospectus contained therein) did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. At the time any Rule 424(b) or (c) Prospectus was filed with the Commission and at the Closing Time Date referred to in Section 5, the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto)) and, and when taken together with the Prospectus, any Blue Sky Application or any Sales Information authorized for use by any of the Primary Parties for use in connection with the Offerings Offerings, will 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; provided, however, that the representations and warranties in this Section 6(b) shall not apply to statements or omissions made in reliance upon and in conformity with written information furnished to the Primary Parties by the Agent expressly regarding the Agent for use under the captions “MARKET FOR THE COMMON STOCK” and “caption " The CONVERSION – Marketing and Underwriting Arrangements” or written statements or omissions from any Blue Sky Application or any Sales InformationConversion - Plan of Distribution, Selling Agent Compensation."]
(c) At The Conversion Application has been approved by the time of filing the Registration Statement and at the date hereof, the Holding Company was notOTS. The Conversion Application did, and is not, an ineligible issuerwill, as defined in Rule 405. At the time of the filing Closing Date comply as to form in all material respects with the Conversion Regulations and any other applicable rules and regulations of the Registration Statement and at the time of the use of any issuer free writing prospectus, as defined in Rule 433(h), the Holding Company met the conditions required by Rules 164 and 433 for the use of a free writing prospectus. If required to be filed, the Holding Company has filed any issuer free writing prospectus related to the offered Shares at the time it is required to be filed under Rule 433 and, if not required to be filed, will retain such free writing prospectus in the Holding Company’s records pursuant to Rule 433(g) and if any issuer free writing prospectus is used after the date hereof in connection with the offering of the Shares the Holding Company will file or retain such free writing prospectus as required by Rule 433OTS.
(d) No order has been issued by the Commission preventing or suspending the use of the Registration Statement or the Prospectus and, except as disclosed in Schedule 6(d), no action by or before any such government entity to revoke any approval, authorization or order of effectiveness related to the Conversion is, to the best knowledge of the Primary Parties, pending or threatened.
(e) The Plan has been duly adopted by the Board of the MHC. To the best knowledge of the Primary Parties, except as disclosed in Schedule 6(d), no person has, or at the Closing Date will have, sought to obtain review of the final action of the OTS in approving the Plan or the Conversion Application or the Holding Company Application, pursuant to the HOLA or any other statute or regulation.
(f) The Holding Company has filed the Holding Company Application with the OTS. As of the Applicable Time Closing Date, the OTS will have approved of the Holding Company's becoming a unitary savings and loan holding company with respect to the Bank.
(as hereinafter definedg) RP Financial, LC, which prepared the appraisal of the faggregate pro forma market value of the Common Stock on which the Offerings were based (the "Appraisal"), neither has advised the Primary Parties in writing that it is independent with respect to each of the Primary Parties and the Primary Parties believe RP Financial, LC to be expert in preparing appraisals of savings institutions.
(h) Grant Thornton LLP, which certified the financial statements filed as ▇▇▇▇ ▇▇ ▇▇▇ ▇egistration Statement and the Conversion Application, has advised the Primary Parties that it is an independent certified public accountant within the meaning of the Code of Ethics of the AICPA, and Grant Thornton LLP is, with respect to the Holding Company, the Bank ▇▇▇ ▇▇▇▇ ▇▇▇▇▇diary of the Bank, independent certified public accountants as required by the 1933 Act and the 1933 Act Regulations.
(i) the Issuer-Represented General Free Writing Prospectus(es) issued at or prior to the Applicable Time The financial statements and the Statutory Prospectus, all considered together (collectively, the “General Disclosure Package”), nor (ii) any individual Issuer-Represented Limited-Use Free Writing Prospectus, when considered together with the General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under notes thereto which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from any Prospectus are included in the Registration Statement relating and which are a part of the Prospectus present fairly in all material respects the financial condition and retained earnings of the Mid-Tier Holding Company and the Bank as of the dates indicated and the results of operations and cash flows for the periods specified. The financial statements comply in all material respects with the applicable accounting requirements of Title 12 of the Code of Federal Regulations, Regulation S-X of the Commission and generally accepted accounting principles ("GAAP") applied on a consistent basis during the periods presented, except as otherwise noted therein, and present fairly in all material respects the information required to be stated therein. The other financial, statistical and pro forma information and related notes included in the Prospectus present fairly the information shown therein on a basis consistent with the audited and any unaudited financial statements included in the Prospectus, and as to the offered Shares pro forma adjustments, the adjustments made therein have been consistently applied on the basis described therein.
(j) Since the respective dates as of which information is given in the Registration Statement, including the Prospectus; (i) there has not been any material adverse change in the financial condition, results of operation, earnings, capital, properties, business affairs or prospects of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; (ii) there have not been any material transactions entered into by any of the Primary Parties, other than those in the ordinary course of business; and (iii) the capitalization, liabilities, assets, properties and business of the Primary Parties conform in all material respects to the descriptions thereof contained in the Prospectus and, none of the Primary Parties has any material liabilities of any kind, contingent or otherwise, except as disclosed in the Registration Statement or the Prospectus.
(k) As of the Closing Date, the Holding Company will be a stock corporation duly organized and in good standing under the laws of the State of Delaware, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus, and will be qualified to transact business and in good standing in Delaware and in each jurisdiction in which the conduct of business requires such qualification, unless the failure to qualify in one or more of such jurisdictions would not have a material adverse effect on the financial condition, results of operation, earnings, capital, properties, business affairs or prospects of the Primary Parties taken as a whole (a "Material Adverse Effect"). As of the Closing Date, the Holding Company will have obtained all licenses, permits and other governmental authorizations required for the conduct of its business, except those that individually or in the aggregate would not materially adversely affect the financial condition, earnings, or business of the Primary Parties taken as a whole; and as of the Closing Date, all such licenses, permits and governmental authorizations will be in full force and effect, and the Holding Company will be in compliance therewith in all material respects.
(l) The Holding Company does not, and as of the Closing Date, will not own any equity securities or any Issuerequity interest in any business enterprise except as described in the Prospectus.
(m) The Bank is a duly organized and validly existing Ohio savings and loan association, duly authorized to conduct its business as described in the Prospectus; the activities of the Bank are permitted by the rules, regulations and practices of the OTS; the Bank has obtained all licenses, permits and other governmental authorizations currently required for the conduct of its business, except those that individually or in the aggregate would not have a Material Adverse Effect; all such licenses, permits and other governmental authorizations are in full force and effect and the Bank is in good standing under the laws of State of Ohio and the Bank is duly qualified as a foreign corporation to transact business in each jurisdiction in which the failure to so qualify would have a Material Adverse Effect; all of the issued and outstanding capital stock of the Bank after the Conversion will be duly and validly issued and fully paid and nonassessable; and the Holding Company will directly own all of the capital stock of the Bank free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction of any kind. The Bank does not own equity securities or any equity interest in any other business enterprise except as otherwise described in the Prospectus or as are immaterial in amount and are not required to be described in the Prospectus.
(n) The MHC is a federally chartered mutual holding company operating under the laws and regulations of the United States and under the supervision of the OTS and is in good standing under such laws.
(o) The Mid-Represented Free Writing Tier Holding Company is a duly organized and validly existing federal-chartered stock corporation, duly authorized to conduct its business as described in the Prospectus; the activities of the Mid-Tier Holding Company are permitted by the rules, regulations and practices of the OTS; the Mid-Tier Holding Company has obtained all licenses, permits and other governmental authorizations currently required for the conduct of its business, except those that, individually or in the aggregate, would not have a Material Adverse Effect; all such licenses, permits and other governmental authorizations are in full force and effect and the Mid-Tier Holding Company is in good standing under the laws of United States and the Mid-Tier Holding Company is duly qualified as a foreign corporation to transact business in each jurisdiction in which the failure to so qualify would have a Material Adverse Effect.
(p) The deposit accounts of the Bank are insured by the FDIC up to applicable limits. Upon consummation of the Conversion, the Bank will establish a liquidation account for the benefit of the Bank's depositors, in accordance with the Plan and the requirements of applicable Conversion Regulations.
(q) As of the Closing Date, the Bank will be a wholly owned subsidiary of the Holding Company.
(r) Upon consummation of the Conversion, the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus based upon under the caption "Capitalization" and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date; the shares of Common Stock to be subscribed for in the Offerings have been duly and validly authorized for issuance and, when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan and the Prospectus, will be duly and validly issued and fully paid and nonassessable; the issuance of the Shares is not subject to preemptive rights, except for the subscription rights granted pursuant to the Plan; and the terms and provisions of the shares of Common Stock will conform in all material respects to the description thereof contained in the Prospectus. Upon issuance of the Shares sold, good title to the Shares will be transferred from the Holding Company to the purchasers of Shares against payment therefor in the Offering as set forth in the Plan and the Prospectus.
(s) The Primary Parties are not in violation of their respective certificates of incorporation or charter or their respective bylaws, or in material default in the performance or observance of any obligation, agreement, covenant, or condition contained in any contract, lease, loan agreement, indenture or other instrument to which they are a party or by which they, or any of their respective properties, may be bound which would result in a Material Adverse Effect. The consummation of the transactions contemplated herein and in conformity the Plan will not (i) conflict with written information furnished or constitute a breach of, or default under, the Certificate of Incorporation, charter or bylaws of any of the Primary Parties, or conflict with or constitute a breach of, or default under, any material contract, lease or other instrument to which any of the Primary Parties has a beneficial interest, or any applicable law, rule, regulation or order that is material to the financial condition of the Bank; (ii) violate any authorization, approval, judgment, decree, order, statute, rule or regulation applicable to the Primary Parties except for such violations which would not have a Material Adverse Effect on the financial condition and results of operations of the Bank or Holding Company; or (iii) result in the creation of any lien, charge or encumbrance upon any property of the Primary Parties, except for such liens, changes or encumbrances that would not individually or in the aggregate have a Material Adverse Effect.
(t) No default exists, and no event has occurred which with notice or lapse of time, or both, would constitute a default on the part of any of the Primary Parties, in the due performance and observance of any term, covenant or condition of any indenture, mortgage, deed of trust, note, bank loan or credit agreement or any other instrument or agreement to which any of the Primary Parties is a party or by which any of their property is bound or affected in any respect which, in any such case, would have a Material Adverse Effect on the Agent specifically for use therein. As used Primary Parties taken as a whole, and such agreements are in this paragraph full force and elsewhere effect; and no other party to any such agreements has instituted or, to the best knowledge of any of the Primary Parties, threatened any action or proceeding wherein any of the Primary Parties is alleged to be in this Agreement:default thereunder under circumstances where such action or proceeding, if determined adversely to any of the Primary Parties, would have a Material Adverse Effect.
(u) The Primary Parties have good and marketable title to all assets which are material to the businesses of the Primary Parties, free and clear of all liens, charges, encumbrances, restrictions or other claims, except such as are described in the Prospectus or which do not have a Material Adverse Effect; and all of the leases and subleases which are material to the businesses of the Primary Parties, including those described in the Registration Statement or Prospectus, are in full force and effect.
(v) The Primary Parties are not in violation of any material directive from the OTS, the FDIC, or any other agency to make any material change in the method of conducting their respective businesses; the Primary Parties have conducted and are conducting their respective businesses so as to comply in al
Appears in 1 contract
Sources: Agency Agreement (Wayne Savings Bancshares Inc /De/)
Representations and Warranties of the Primary Parties. The Primary Parties jointly and severally represent and warrant to the Agent that, except as disclosed in the Prospectus:
(a) The MHC, the Mid-Tier Holding Company, the Holding Company and LMIC have and, as of the Closing Time, will Bank have all such power, authority, authorizations, approvals and orders as may be required to enter into this Agreement, and, as of the Closing Date, the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank will have all such power, authority, authorizations, approvals and orders as may be required to carry out the provisions and conditions hereof and to issue and sell the Shares and to issue the Exchange Shares as provided herein and as described in the Prospectus. Subject to the receipt of member and regulatory approval, the The consummation of the Conversion and the ReorganizationConversion, the execution, delivery and performance of this Agreement and the R▇▇▇ ▇▇▇▇ Letter Agreement and the consummation of the transactions contemplated herein contemplated, have been duly and validly authorized by all necessary corporate action on the part of the MHC, the Mid-Tier Holding Company, the Holding Company and LMICthe Bank. This Agreement has been validly executed and delivered by the Holding Company and LMICPrimary Parties, and is a valid, legal and binding obligation of the Holding Company and LMICPrimary Parties, in each case enforceable in accordance with its terms, except as the legality, validity, binding nature and enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium, conservatorship, receivership or other similar laws relating to or affecting the enforcement of creditors’ rights generally; (ii) general equity principles regardless of whether such enforceability is considered in a proceeding in equity or at law; and (iii) the extent, if any, that the provisions of Sections 11 or and 12 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 savings institutions insured by the FDIC (including the laws relating to the rights of the contracting parties to equitable remedies).
(b) The Registration Statement was declared effective by the Commission on August ___, 2008, and no 2007. No stop order has been issued with respect thereto and no proceedings therefore have been initiated or, to the best knowledge of the Primary Parties, threatened by the Commission. No proceedings related to the Prospectus have been initiated or, to the knowledge of the Primary Parties, threatened by the Commission. At the time the Registration Statement (Statement, including the Prospectus contained therein) therein (including any amendment or supplement thereto), became effective, the Registration Statement (including the Prospectus contained therein) complied as to form in all material respects with the 1933 Act and the regulations promulgated thereunder 1933 Act Regulations and the Registration Statement (Statement, including the Prospectus contained thereintherein (including any amendment or supplement thereto), any Blue Sky Application or any Sales Information (as such terms are defined in Section 11 hereof) authorized by the Primary Parties for use in connection with the Offering, did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. At the time any Rule 424(b) or (c) Prospectus was filed with the Commission and at the Closing Time Date referred to in Section 5, the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto)) and, and when taken together with the Prospectus, any Blue Sky Application (as defined below) or any Sales Information (as defined below) authorized for use by any of the Primary Parties for use in connection with the Offerings Offering, will 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; provided, however, that the representations and warranties in this Section 6(b) shall not apply to statements or omissions made in reliance upon and in conformity with written information furnished to the Primary Parties by the Agent expressly regarding the Agent for use under the captions “MARKET FOR THE COMMON STOCKMarket for the Common Stock” and or “The CONVERSION Conversion and Offering – Marketing and Underwriting Arrangements” or written statements or omissions from any Blue Sky Application sales information or any Sales Informationinformation filed pursuant to state securities or blue sky laws or regulations regarding the Agent.
(c) At the time of filing the Registration Statement and at the date hereof, the Holding Company was not, and is not, an ineligible issuer, as defined in Rule 405. At the time of the filing of the Registration Statement and at the time of the use of any issuer free writing prospectus, as defined in Rule 433(h), the Holding Company met the conditions required by Rules 164 and 433 for the use of a free writing prospectus. If required to be filed, the Holding Company has filed any issuer free writing prospectus related to the offered Shares at the time it is required to be filed under Rule 433 and, if not required to be filed, will retain such free writing prospectus in the Holding Company’s records pursuant to Rule 433(g) and if any issuer free writing prospectus is used after the date hereof in connection with the offering of the Shares the Holding Company will file or retain such free writing prospectus as required by Rule 433.
(d) As of the Applicable Time (as hereinafter defined)Time, neither (i) the Issuer-Represented General Free Writing Prospectus(es) issued at or prior to the Applicable Time and the Statutory Prospectus, all considered together (collectively, the “General Disclosure Package”), nor (ii) any individual Issuer-Represented Limited-Use Free Writing Prospectus, when considered together with the General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from any Prospectus included in the Registration Statement relating to the offered Shares or any Issuer-Represented Free Writing Prospectus based upon and in conformity with written information furnished to the Primary Parties Holding Company by the Agent specifically for use therein. As used in this paragraph and elsewhere in this Agreement:
Appears in 1 contract
Representations and Warranties of the Primary Parties. The Primary Parties jointly and severally represent and warrant to the Agent that, except as disclosed in the Prospectus:
(a) The Holding Company and LMIC have and, as Each of the Closing Time, will have Primary Parties has all such power, authority, authorizations, approvals and orders as may be required to enter into this Agreement. At the Closing Time, each of the Primary Parties will have all such power, authority, authorizations, approvals and orders as may be required to carry out the provisions and conditions hereof and to issue and sell the Shares and issue the Foundation Shares as provided herein and as described in the Prospectus. Subject to the receipt of member and regulatory approval, the consummation of the Conversion Reorganization and the ReorganizationOfferings, the execution, delivery and performance of this Agreement and the Letter Agreement and the consummation of the transactions herein contemplated, including the establishment and funding of the Charitable Foundation, have been duly and validly authorized by all necessary corporate action on the part of the Holding Company Bank and, as of the Closing Time, will have been duly and LMICvalidly authorized by all necessary corporate action on the part of each of the Primary Parties. This Agreement has been validly executed and delivered by each of the Holding Company and LMICPrimary Parties, and is a valid, legal and binding obligation of each of the Holding Company and LMICPrimary Parties, in each case enforceable in accordance with its terms, except as the legality, validity, binding nature and enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium, conservatorship, receivership or other similar laws relating to or affecting the enforcement of creditors’ rights generally; (ii) general equity principles regardless of whether such enforceability is considered in a proceeding in equity or at law; and (iii) the extent, if any, that the provisions of Sections 11 or and 12 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 savings institutions insured by the FDIC (including the laws relating to the rights of the contracting parties to equitable remedies).
(b) The Plan has been approved by the OTS.
(c) The Registration Statement was declared effective by the Commission on ______________, 2008, ; and no stop order has been issued with respect thereto and no proceedings therefore related to the Prospectus have been initiated or, or to the best knowledge of the Primary Parties, Parties threatened by the Commission. At the time the Registration Statement (Statement, including the Prospectus contained therein) therein (including any amendment or supplement thereto), became effective, the Registration Statement (including the Prospectus contained therein) complied as to form in all material respects with the 1933 Act and the regulations promulgated thereunder and the Registration Statement (Statement, including the Prospectus contained therein(including any amendment or supplement thereto), any Blue Sky Application or any Sales Information (as such terms are defined in Section 11 hereof) authorized by the Primary Parties for use in connection with the Offerings did not contain an any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. At the time any Rule 424(b) or (c) Prospectus was filed with the Commission and at the Closing Time referred to in Section 5, the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto), and any Blue Sky Application or any Sales Information (as such terms are defined in Section 11 hereof) authorized for use by any of the Primary Parties for use in connection with the Offerings Offerings, will not contain an any untrue statement of a material fact or omit to state a any 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; provided, however, that the representations and warranties in this Section 6(b6(c) shall not apply to statements or omissions made in reliance upon and in conformity with written information furnished to the Primary Parties by the Agent expressly regarding the Agent for use under the captions “MARKET FOR THE COMMON STOCKMarket for Our Common Stock” and “The CONVERSION – Reorganization and Offering—Plan of Distribution and Marketing and Underwriting Arrangements” or written statements or omissions from any Blue Sky Application sales information or any Sales Informationinformation filed pursuant to state securities or blue sky laws or regulations regarding the Agent.
(cd) At the time of filing the Registration Statement and at the date hereof, the Holding Company was not, and is not, an ineligible issuer, as defined in Rule 405. At the time of the filing of the Registration Statement and at the time of the use of any issuer free writing prospectus, as defined in Rule 433(h), the Holding Company met the conditions required by Rules 164 and 433 for the use of a free writing prospectus. If required to be filed, the Holding Company has filed any issuer free writing prospectus related to the offered Shares at the time it is required to be filed under Rule 433 and, if not required to be filed, will retain such free writing prospectus in the Holding Company’s records pursuant to Rule 433(g) and if any issuer free writing prospectus is used after the date hereof in connection with the offering of the Shares the Holding Company will file or retain such free writing prospectus as required by Rule 433.
(de) As of the Applicable Time (as hereinafter defined)Time, neither (i) the Issuer-Issuer Represented General Free Writing Prospectus(es) issued at or prior to the Applicable Time and the Statutory Prospectus, all considered together (collectively, the “General Disclosure Package”), nor (ii) any individual Issuer-Issuer Represented Limited-Limited Use Free Writing Prospectus, when considered together with the General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from any Prospectus included in the Registration Statement relating to the offered Shares or any Issuer-Issuer Represented Free Writing Prospectus based upon and in conformity with written information furnished to the Primary Parties by the Agent specifically for use therein. As used in this paragraph and elsewhere in this Agreement:
Appears in 1 contract
Representations and Warranties of the Primary Parties. The Primary Parties jointly and severally represent and warrant to the Agent that, except as disclosed in the Prospectus:
(a) The MHC, the Mid-Tier Holding Company, the Holding Company and LMIC have and, as of the Closing Time, will Bank have all such power, authority, authorizations, approvals and orders as may be required to enter into this Agreement, and, as of the Closing Date, the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank will have all such power, authority, authorizations, approvals and orders as may be required to carry out the provisions and conditions hereof and to issue and sell the Offer Shares and to issue the Exchange Shares as provided herein and as described in the Prospectus. Subject to the receipt of member and regulatory approval, the The consummation of the Conversion and the ReorganizationConversion, the execution, delivery and performance of this Agreement and the Letter Agreement and the consummation of the transactions contemplated herein contemplated, have been duly and validly authorized by all necessary corporate action on the part of the MHC, the Mid-Tier Holding Company, the Holding Company and LMICthe Bank. This Agreement has been validly executed and delivered by the Holding Company and LMICPrimary Parties, and is a valid, legal and binding obligation of the Holding Company and LMICPrimary Parties, in each case enforceable in accordance with its terms, except as the legality, validity, binding nature and enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium, conservatorship, receivership or other similar laws relating to or affecting the enforcement of creditors’ rights generally; (ii) general equity principles regardless of whether such enforceability is considered in a proceeding in equity or at law; and (iii) the extent, if any, that the provisions of Sections 11 or and 12 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 savings institutions insured by the FDIC (including the laws relating to the rights of the contracting parties to equitable remedies).
(b) The Registration Statement was declared effective by the Commission on , 2008, and no [SEC effective date]. No stop order has been issued with respect thereto and no to the Registration Statement. No proceedings therefore related to the Registration Statement have been initiated or, to the best knowledge of the Primary Parties, threatened by the Commission. At the time the Registration Statement (Statement, including the Prospectus contained therein) therein (including any amendment or supplement thereto), became effective, the Registration Statement (including the Prospectus contained therein) complied as to form in all material respects with the 1933 Act and the regulations promulgated thereunder 1933 Act Regulations and the Registration Statement (Statement, including the Prospectus contained thereintherein (including any amendment or supplement thereto), any Blue Sky Application or any Sales Information (as such terms are defined in Section 11 hereof) authorized by the Primary Parties for use in connection with the Offering, did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. At the time any Rule 424(b) or (c) Prospectus was filed with the Commission and at the Closing Time Date referred to in Section 5, the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto)) and, and when taken together with the Prospectus, any Blue Sky Application (if applicable) or any Sales Information authorized for use by any of the Primary Parties for use in connection with the Offerings Offering, will 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; provided, however, that the representations and warranties in this Section 6(b) shall not apply to statements or omissions made in reliance upon and in conformity with written information furnished to the Primary Parties by the Agent expressly regarding the Agent for use under the captions “MARKET FOR THE COMMON STOCK” and caption “The CONVERSION Conversion and Offering – Marketing and Underwriting ArrangementsPlan of Distribution; Selling Agent Compensation” or written statements or omissions from any Blue Sky Application sales information or any Sales Informationinformation filed pursuant to state securities or blue sky laws or regulations regarding the Agent.
(c) At the time of filing the Registration Statement and at the date hereof, the Holding Company was not, and is not, an ineligible issuer, as defined in Rule 405 of the 1933 Act (“Rule 405”). At the time of the filing of the Registration Statement and at the time of the use of any issuer free writing prospectus, as defined in Rule 433(h)) of the 1933 Act, the Holding Company met the conditions required by Rules 164 and 433 of the 1933 Act for the use of a free writing prospectus. If required to be filed, the Holding Company has filed any issuer free writing prospectus related to the offered Offer Shares at the time it is required to be filed under Rule 433 of the 1933 Act and, if not required to be filed, will retain such free writing prospectus in the Holding Company’s records pursuant to Rule 433(g) of the 1933 Act and if any issuer free writing prospectus is used after the date hereof in connection with the offering of the Shares the Holding Company will file or retain such free writing prospectus as required by Rule 433433 of the 1933 Act.
(d) As of the Applicable Time (as hereinafter defined)Time, neither (i) the Issuer-Represented General Free Writing Prospectus(es) issued at or prior to the Applicable Time and the Statutory Prospectus, all considered together (collectively, the “General Disclosure Package”), nor (ii) any individual Issuer-Represented Limited-Use Free Writing Prospectus, when considered together with the General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from any Prospectus included in the Registration Statement relating to the offered Offer Shares or any Issuer-Represented Free Writing Prospectus based upon and in conformity with written information furnished to the Primary Parties Holding Company by the Agent specifically for use therein. As used in this paragraph and elsewhere in this Agreement:
Appears in 1 contract
Representations and Warranties of the Primary Parties. The Primary Parties jointly and severally represent and warrant to the Agent that, except as disclosed in the Prospectus:
(a) The MHC, the Mid-Tier Holding Company, the Holding Company and LMIC have and, as of the Closing Time, will Bank have all such power, authority, authorizations, approvals and orders as may be required to enter into this Agreement, and, as of the Closing Date, the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank will have all such power, authority, authorizations, approvals and orders as may be required to carry out the provisions and conditions hereof and to issue and sell the Shares as provided herein and as described in the Prospectus. Subject to the receipt of member and regulatory approval, the The consummation of the Conversion and the ReorganizationConversion, the execution, delivery and performance of this Agreement and the Letter Agreement and the consummation of the transactions contemplated herein contemplated, have been duly and validly authorized by all necessary corporate action on the part of the MHC, the Mid-Tier Holding Company, the Holding Company and LMICthe Bank. This Agreement has been validly executed and delivered by the Holding Company and LMICPrimary Parties, and is a valid, legal and binding obligation of the Holding Company and LMICPrimary Parties, in each case enforceable in accordance with its terms, except as the legality, validity, binding nature and enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium, conservatorship, receivership or other similar laws relating to or affecting the enforcement of creditors’ rights generally; (ii) general equity principles regardless of whether such enforceability is considered in a proceeding in equity or at law; and (iii) the extent, if any, that the provisions of Sections 11 or and 12 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 savings institutions insured by the FDIC (including the laws relating to the rights of the contracting parties to equitable remedies).
(b) The Registration Statement was declared effective by the Commission on May , 2008, and no 2011. No stop order has been issued with respect thereto and no to the Registration Statement. No proceedings therefore related to the Registration Statement have been initiated or, to the best knowledge of the Primary Parties, threatened by the Commission. At the time the Registration Statement (Statement, including the Prospectus contained therein) therein (including any amendment or supplement thereto), became effective, the Registration Statement (including the Prospectus contained therein) complied as to form in all material respects with the 1933 Act and the regulations promulgated thereunder 1933 Act Regulations and the Registration Statement (Statement, including the Prospectus contained thereintherein (including any amendment or supplement thereto), any Blue Sky Application or any Sales Information (as such terms are defined in Section 11 hereof) authorized by the Primary Parties for use in connection with the Offering, did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. At the time any Rule 424(b) or (c) Prospectus was filed with the Commission and at the Closing Time Date referred to in Section 5, the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto)) and, and when taken together with the Prospectus, any Blue Sky Application (if applicable) or any Sales Information (as defined below) authorized for use by any of the Primary Parties for use in connection with the Offerings Offering, will 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; provided, however, that the representations and warranties in this Section 6(b) shall not apply to statements or omissions made in reliance upon and in conformity with written information furnished to the Primary Parties by the Agent expressly regarding the Agent for use under the captions “MARKET FOR THE COMMON STOCK” and caption “The CONVERSION Conversion and Offering – Marketing and Underwriting Arrangements” or written statements in or omissions from any Blue Sky Application sales information or any Sales Informationinformation filed pursuant to state securities or blue sky laws or regulations regarding the Agent.
(c) At the time of filing the Registration Statement and at the date hereof, the Holding Company was not, and is not, an ineligible issuer, as defined in Rule 405. At the time of the filing of the Registration Statement and at the time of the use of any issuer free writing prospectus, as defined in Rule 433(h), the Holding Company met the conditions required by Rules 164 and 433 for the use of a free writing prospectus. If required to be filed, the Holding Company has filed any issuer free writing prospectus related to the offered Offer Shares at the time it is required to be filed under Rule 433 and, if not required to be filed, will retain such free writing prospectus in the Holding Company’s records pursuant to Rule 433(g) and if any issuer free writing prospectus is used after the date hereof in connection with the offering of the Shares the Holding Company will file or retain such free writing prospectus as required by Rule 433.
(d) As of the Applicable Time (as hereinafter defined)Time, neither (i) the Issuer-Represented General Free Writing Prospectus(es) issued at or prior to the Applicable Time and the Statutory Prospectus, all considered together (collectively, the “General Disclosure Package”), nor (ii) any individual Issuer-Represented Limited-Use Free Writing Prospectus, when considered together with the General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from any Prospectus included in the Registration Statement relating to the offered Offer Shares or any Issuer-Represented Free Writing Prospectus based upon and in conformity with written information furnished to the Primary Parties Holding Company by the Agent specifically for use therein. As used in this paragraph and elsewhere in this Agreement:
Appears in 1 contract
Representations and Warranties of the Primary Parties. The Primary Parties jointly and severally represent and warrant to the Agent that, except as disclosed in the Prospectus:
(a) The Holding Company and LMIC have and, as Each of the Closing Time, will have Primary Parties has all such power, authority, authorizations, approvals and orders as may be required to enter into this Agreement, and, as of the Closing Date, each of the Primary Parties will have all such power, authority, authorizations, approvals and orders as may be required to carry out the provisions and conditions hereof and to issue and sell the Shares to be sold by the Company as provided herein and to contribute the Foundation Shares to the Foundation by the Company and as described in the Prospectus. Subject to the receipt of member and regulatory approval, the The consummation of the Conversion and the ReorganizationConversion, the execution, delivery and performance of this Agreement Agreement, the Engagement Letter and the Conversion Agent Engagement Letter Agreement and the consummation of the transactions contemplated herein contemplatedhave been, have been or will be as of the Closing Date, duly and validly authorized by all necessary corporate action on the part of each of the Holding Company and LMICPrimary Parties. This Agreement has been validly executed and delivered by each of the Holding Company and LMICPrimary Parties, and is a valid, legal and binding obligation of each of the Holding Company and LMICPrimary Parties, in each case enforceable in accordance with its terms, except as the legality, validity, binding nature and enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium, reorganization, conservatorship, receivership or other similar laws relating to or affecting the enforcement of creditors’ rights generally; , or the rights of creditors of insured financial institutions and their holding companies, (ii) general equity principles regardless of whether such enforceability is considered in a proceeding in equity or at law; , and (iii) the extent, if any, that the provisions of Sections 11 Section 12 or 12 Section 13 hereof may be unenforceable as against public policy.
(b) The Registration Statement was declared effective by the Commission on May 6, 20082019, and no stop order has been issued with respect thereto and no proceedings therefore related thereto have been initiated or, to the best knowledge of the Primary Parties, threatened by the Commission. At the time the Registration Statement (Statement, including the Prospectus contained therein) therein (including any amendment or supplement thereto), became effective, the Registration Statement (including the Prospectus contained therein) complied as to form in all material respects with the 1933 Act and the regulations promulgated thereunder 1933 Act Regulations, and the Registration Statement (including and the Prospectus contained therein) did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. At the time any Rule 424(b) or (c) Prospectus was is filed with the Commission and at the Closing Time referred to in Section 5Date, the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto)) and, and when taken together with the Prospectus, any Blue Sky Application or any Sales Information (as such terms are defined in Section 12 hereof) authorized by any of the Primary Parties for use in connection with the Offerings Offering, will 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; provided, however, that the representations and warranties in this Section 6(b) shall not apply to statements or omissions made in reliance upon and in conformity with written information furnished to the Primary Parties by the Agent expressly regarding the Agent or its counsel for use in the Prospectus under the captions “MARKET FOR THE COMMON STOCK” and caption “The CONVERSION – Reorganization and Offering—Plan of Distribution and Marketing and Underwriting Arrangements” or written statements or omissions from any Blue Sky Application or in any Sales Information.
(c) Any statistical and market related data contained in any Permitted Free Writing Prospectus (as hereinafter defined), the Prospectus and the Registration Statement are based on or derived from sources which the Primary Parties believe were reliable and accurate at the time they were filed with the SEC. No forward-looking statement (within the meaning of Section 27A of the 1933 Act and Section 21E of the Securities Exchange Act of 1934, as amended (the “1934 Act”)) contained in the Registration Statement, the Prospectus, or any Permitted Free Writing Prospectus has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith.
(d) None of the Primary Parties has directly or indirectly distributed or otherwise used, and will not, without the prior consent of the Agent, directly or indirectly distribute or otherwise use, any prospectus, any “free writing prospectus” (as defined in Rule 405 of the 1933 Act Regulations) or other offering material (including, without limitation, content on any of the Primary Party’s website that may be deemed to be a prospectus, free writing prospectus or other offering material) in connection with the Offering and the sale of the Shares, except for any Permitted Free Writing Prospectus.
(e) At the time of filing the Registration Statement and at the date hereof, the Holding Company was not, and is not, an ineligible issuer, issuer (as defined in Rule 405405 of the 1933 Act Regulations). At the time of the filing of the Registration Statement and at the time of the use of any issuer free writing prospectus, prospectus (as defined in Rule 433(h) of the 1933 Act Regulations), the Holding Company met the conditions required by Rules 164 and 433 of the 1933 Act Regulations for the use of a free writing prospectus. If required to be filed, the Holding Company has filed any issuer free writing prospectus related to the offered Shares at the time it is required to be filed under Rule 433 of the 1933 Act Regulations and, if not required to be filed, will retain such free writing prospectus in the Holding Company’s records pursuant to Rule 433(g) of the 1933 Act Regulations and if any issuer free writing prospectus is used after the date hereof in connection with the offering of the Shares the Holding Company will file or retain such free writing prospectus as required by Rule 433433 of the 1933 Act Regulations.
(df) As The Company has filed the Holding Company Application with the Federal Reserve Board and the Holding Company Application is accurate and complete in all material respects. The Company has received written notice from the Federal Reserve Board of its approval of the Applicable Time Holding Company Application, such approval remains in full force and effect and no order has been issued by the Federal Reserve Board suspending or revoking such approval and no proceedings therefor have been initiated or, to the knowledge of the Primary Parties, threatened by the Federal Reserve Board or any other applicable regulator. To the knowledge of the Primary Parties, no person has sought to obtain review of the final action of the Federal Reserve Board in approving the Holding Company Application pursuant to applicable statutes or regulations. At the date of such approval and as of the Closing Date, the Holding Company Application complied and will comply in all material respects with the applicable provisions of the Bank Holding Company Act of 1956, as amended and Section 225.15 of Regulation Y.
(g) In connection with the Conversion, the Primary Parties filed with the IDFI the IDFI Application and filed such amendments thereto and supplementary materials as hereinafter definedmay have been required to the date hereof. The IDFI has approved the IDFI Application, such approval remains in full force and effect and no order has been issued by the IDFI suspending or revoking such approval and no proceedings therefor have been initiated or, to the knowledge of the Primary Parties, threatened by the IDFI. At the time of the approval of the IDFI Application, including the Prospectus (and any amendment or supplement thereto), neither by the IDFI and at all times subsequent thereto until the Closing Date referred to in Section 3, the IDFI Application, including the Prospectus (and any amendment or supplement thereto), will comply in all material respects with any applicable IDFI Regulations, and the IDFI Application was accurate and complete in all material respects.
(h) No order has been issued by the Commission or any state securities administrator preventing or suspending the use of the Prospectus or any supplemental sales literature authorized by the Primary Parties for use in connection with the Offering, and no action by or before any such government entity to revoke any approval, authorization or order of effectiveness related to the Conversion is pending or, to the knowledge of the Primary Parties, threatened.
(i) The Plan has been approved by the Issuer-Represented General Free Writing Prospectus(es) issued at or prior Board of Directors of each of the Primary Parties, and the Plan and the contribution to the Applicable Time Foundation is subject to approval by the Voting Members of the MHC; at the Closing Date, the offer and sale of the Shares and the Statutory Prospectuscontribution of the Foundation Shares to the Foundation will have been conducted in all material respects in accordance with the Plan, and all considered together (collectivelyother applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed by the Federal Reserve Board, the Commission or any other regulatory authority, other than those which the regulatory authority permits to be completed after the Conversion, and in the manner described in the Prospectus.
(j) RP Financial, LC., which prepared an independent valuation of the Common Stock of the Company as of February 8, 2019 (as amended or supplemented, if so amended or supplemented) (the “General Disclosure PackageAppraisal”), nor has advised the Primary Parties in writing that it is independent with respect to each of the Primary Parties within the meaning of applicable banking regulations, and the Primary Parties believe RP Financial, LC. to be expert in the valuation and appraisal of savings institutions, and the Primary Parties believe that RP Financial, LC. has prepared the Appraisal information set forth in the Prospectus in accordance with the requirements of any applicable banking regulations.
(iik) BKD, LLP, which certified the audited financial statements filed as part of the Registration Statement, has advised the Primary Parties in writing that it is an independent certified public accountant within the meaning of the Code of Ethics of the American Institute of Certified Public Accountants, the applicable rules of the Public Company Accounting Oversight Board (United States) ("PCAOB") and the SEC, it is registered with the PCAOB and is, with respect to the Primary Parties, an independent certified public accountant as required by the 1933 Act and the 1933 Act Regulations.
(l) The financial statements, schedules and notes related thereto that are included in the Prospectus fairly present in all material respects the financial condition, results of operations, equity and cash flows of the Mid-Tier Holding Company at the respective dates indicated and for the respective periods covered thereby and comply as to form in all material respects with the applicable accounting requirements of Title 12 of the Code of Federal Regulations, Regulation S-X of the SEC and generally accepted accounting principles (“GAAP”) (including those requiring the recording of certain assets at their current market value). Such financial statements, schedules and notes related thereto have been prepared in accordance with GAAP consistently applied throughout the periods involved (except as noted in the notes to the financial statements), present fairly in all material respects the information required to be stated therein and are consistent with the most recent financial statements and other reports filed by the Mid-Tier Holding Company with the Federal Reserve Board, and any individual Issuerother applicable regulatory authority, except that accounting principles employed in such regulatory filings conform to the requirements of such authorities and not necessarily to GAAP. The other financial, statistical and pro forma information and related notes included in the Prospectus present fairly the information shown therein on a basis consistent with the audited and unaudited financial statements of the Mid-Represented Limited-Use Free Writing Tier Holding Company included in the Prospectus, when considered together with and as to the General Disclosure Packagepro forma adjustments, included any untrue statement the adjustments made therein have been consistently applied on the basis described therein.
(m) Since the respective dates as of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from any Prospectus included information is given in the Registration Statement relating to and the offered Shares Prospectus, except as may otherwise be stated therein: (i) there has not been any material adverse change in the financial condition, results of operations, capital, assets, properties, business affairs or prospects of the Primary Parties, taken as a whole, whether or not arising in the ordinary course of business; (ii) there has not been any Issuermaterial increase in the long-Represented Free Writing Prospectus based upon and in conformity with written information furnished to term debt of any of the Primary Parties or in the principal amount of the Bank’s assets that are classified as substandard, doubtful or loss or in loans past due 90 days or more or real estate acquired by foreclosure, by deed-in-lieu of foreclosure or deemed in-substance foreclosure or any material decrease in equity capital or total assets of any of the Primary Parties, nor have the Primary Parties issued any securities (other than in connection with the incorporation of the Company) or incurred any liability or obligation for borrowing other than in the ordinary course of business; (iii) there have not been any material transactions entered into by the Agent specifically Primary Parties that have not been disclosed in the Prospectus; (iv) there has not been any material adverse change in the aggregate dollar amount of the Bank’s deposits or its consolidated net worth; (v) there has been no material adverse change in the Primary Parties’ relationship with their insurance carriers, including, without limitation, cancellation or other termination of the Primary Parties fidelity bond or any other type of insurance coverage; (vi) there has been no material change in executive management of any of the Primary Parties; (vii) none of the Primary Parties has sustained any material loss or interference with its respective business or properties from fire, flood, windstorm, earthquake, accident or other calamity, whether or not covered by insurance; (viii) none of the Primary Parties is in default in the payment of principal or interest on any outstanding debt obligations; (ix) the capitalization, liabilities, assets, properties and business of the Primary Parties conform in all material respects to the descriptions thereof contained in the Prospectus; (x) none of the Primary Parties has any material contingent or other liabilities, except as set forth in the Prospectus; and (xi) there has been no dividend or distribution of any kind declared, paid or made by the Primary Parties.
(n) At the Closing Date, the Company will be a stock corporation duly organized and validly existing as a corporation under the laws of Maryland, with corporate power and authority to own its properties and to conduct its business, as described in the Prospectus, and will be qualified to transact business and will be in good standing in Indiana and in each jurisdiction in which the conduct of business requires such qualification, unless the failure to qualify in one or more of such jurisdictions would not have a material adverse effect on the conduct of the business, financial condition, results of operations, capital, properties, business affairs or prospects of the Primary Parties taken as a whole (a “Material Adverse Effect”). On the Closing Date, the Company will have obtained all licenses, permits and other governmental authorizations then required for use thereinthe conduct of its business, except those that individually or in the aggregate would not be reasonably expected to have a Material Adverse Effect; and as of the Closing Date, all such licenses, permits and governmental authorizations will be in full force and effect, and the Company will be in compliance therewith in all material respects, and the Company will be in compliance in all material respects with all laws, rules, regulations and orders applicable to the operation of its business. As used At the Closing Date, the Company will not own equity securities or any equity interest in this paragraph any other business enterprise except the Bank and elsewhere in this Agreement:First Mutual of Richmond Statutory Trust I.
(o) The Bank maintains
Appears in 1 contract
Sources: Agency Agreement (Richmond Mutual Bancorporation, Inc.)
Representations and Warranties of the Primary Parties. The Primary Parties jointly and severally represent and warrant to the Agent that, except as disclosed in the Prospectus:
(a) The Bank, the MHC and the Holding Company and LMIC have andhave, as of the Closing Time, will have all such power, authority, authorizations, approvals and orders as may be required to enter into this Agreement, to carry out the provisions and conditions hereof and to issue and sell the Shares as provided herein and as described in the Prospectus, subject to the various limitations and required approvals described therein. Subject to the receipt of member and regulatory approval, the consummation of the Conversion and the ReorganizationOffering, the execution, delivery and performance of this Agreement and the Letter Agreement and the consummation of the transactions herein contemplated, contemplated have been duly and validly authorized by all necessary corporate action on the part of the Bank, the MHC and the Holding Company and LMICCompany. This Agreement has been validly executed and delivered by the Holding Company Company, the MHC and LMICthe Bank, and is a valid, legal and binding obligation of the Bank, the Holding Company and LMICthe MHC, in each case enforceable in accordance with its terms, except as the legality, validity, binding nature and enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium, conservatorship, receivership or other similar laws relating to or affecting the enforcement of creditors’ rights generally; (ii) general equity principles regardless of whether such enforceability is considered in a proceeding in equity or at law; and (iii) the extent, if any, that the provisions of Sections 10 and 11 or 12 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 savings institutions insured by the FDIC (including the laws relating to the rights of the contracting parties to equitable remedies).
(b) The Plan has been approved by the OTS.
(c) The Registration Statement was declared effective by the Commission on ________, 2008, 2005; and no stop order has been issued with respect thereto and no proceedings therefore have been initiated or, or to the best knowledge of the Primary Parties, Parties threatened by the Commission. At the time the Registration Statement (Statement, including the Prospectus contained therein) therein (including any amendment or supplement thereto), became effective, the Registration Statement (including the Prospectus contained therein) complied as to form in all material respects with the 1933 Act and the regulations promulgated thereunder and the Registration Statement (Statement, including the Prospectus contained thereintherein (including any amendment or supplement thereto), any Blue Sky Application or any Sales Information (as such terms are defined in Section 10 hereof) authorized by the Primary Parties for use in connection with the Offerings did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. At , and at the time any Rule 424(b) or (c) Prospectus was filed with the Commission and at the Closing Time Date referred to in Section 5, the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto), and any Blue Sky Application or any Sales Information authorized by the Primary Parties for use in connection with the Offerings will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties in this Section 6(b6(c) shall not apply to statements or omissions made in reliance upon and in conformity with written information furnished to the Primary Parties by the Agent expressly regarding the Agent for use under the captions “MARKET FOR THE COMMON STOCK” "Market for the Common Stock" and “"The CONVERSION – Offering--Plan of Distribution and Marketing and Underwriting Arrangements” " or written statements or omissions from any Blue Sky Application sales information or any Sales Informationinformation filed pursuant to state securities or blue sky laws or regulations regarding the Agent.
(cd) At The MHC-2, including the time of filing Prospectus, was approved by the Registration Statement OTS on _______________, 2005, and at all times subsequent thereto until the date hereofClosing Date, the Holding Company was notMHC-2, including the Prospectus, did and is not, an ineligible issuer, will comply as defined to form in Rule 405all material respects with the Conversion Regulations and any other applicable rules and regulations of the OTS (except as modified or waived in writing by the OTS). At the time of the filing of the Registration Statement approval and at all times subsequent thereto until the time of Closing Date, the use of MHC-2, including the Prospectus (including any issuer free writing prospectus, as defined in Rule 433(hamendment or supplement thereto), the Holding Company met the conditions required by Rules 164 did not and 433 for the use of a free writing prospectus. If required to be filed, the Holding Company has filed any issuer free writing prospectus related to the offered Shares at the time it is required to be filed under Rule 433 and, if does not required to be filed, will retain such free writing prospectus in the Holding Company’s records pursuant to Rule 433(g) and if any issuer free writing prospectus is used after the date hereof in connection with the offering of the Shares the Holding Company will file or retain such free writing prospectus as required by Rule 433.
(d) As of the Applicable Time (as hereinafter defined), neither (i) the Issuer-Represented General Free Writing Prospectus(es) issued at or prior to the Applicable Time and the Statutory Prospectus, all considered together (collectively, the “General Disclosure Package”), nor (ii) any individual Issuer-Represented Limited-Use Free Writing Prospectus, when considered together with the General Disclosure Package, included include any untrue statement of a material fact or omitted omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does ; provided, however, that representations or warranties in this subsection (d) shall not apply to statements in or omissions from any Prospectus included made in the Registration Statement relating to the offered Shares or any Issuer-Represented Free Writing Prospectus based reliance upon and in conformity with written information furnished to the Primary Parties by the Agent specifically expressly regarding the Agent for use in Prospectus contained in the MHC-2 under the captions "Market for the Common Stock" and "The Offering --Plan of Distribution and Marketing Arrangements" or written statements or omissions from any sales information or information filed pursuant to state securities or blue sky laws or regulations regarding the Agent.
(e) No order has been issued by the OTS, the Commission, or any state regulatory authority, preventing or suspending the use of the Prospectus and no action by or before any such government entity to revoke any approval, authorization or order of effectiveness related to the Offering is pending or, to the best knowledge of the Primary Parties, threatened.
(f) The Plan has been duly adopted by the Board of Directors of the Holding Company. To the best knowledge of the Primary Parties, no person has, or at the Closing Date will have, sought to obtain review of the final action of the OTS in approving the Plan, the Offering, or the MHC-2, pursuant to the HOLA or any other statute or regulation.
(g) RP Financial, LC., which prepared the appraisal of the aggregate pro forma market value of the Holding Company and the Bank on which the Offerings were based (the "Appraisal"), has advised the Primary Parties in writing that it is independent with respect to each of the Primary Parties within the meaning of the Conversion Regulations.
(h) ▇▇▇▇▇ ▇▇▇▇▇▇ Company LLP, which certified the financial statements filed as part of the Registration Statement and the MHC-2, has advised the Primary Parties that it is, with respect to each of the Primary Parties, an independent certified public accountant within the meaning of 12 C.F.R. Sections 563c.3 and 571.2(c)(3) and under the 1933 Act and the Regulations promulgated thereunder.
(i) The financial statements and the notes thereto which are included in the Registration Statement and which are a part of the Prospectus present fairly the financial condition and retained earnings of the Holding Company as of the dates indicated and the results of operations and cash flows for the periods specified. The financial statements comply in all material respects with the applicable accounting requirements of Title 12 of the Code of Federal Regulations, Regulation S-X of the Commission and generally accepted accounting principles ("GAAP") applied on a consistent basis during the periods presented except as otherwise noted therein, and present fairly in all material respects the information required to be stated therein. As used The other financial, statistical and pro forma information and related notes included in this paragraph the Prospectus present fairly the information shown therein on a basis consistent with the audited and elsewhere unaudited financial statements included in this Agreement:the Prospectus, and as to the pro forma adjustments, the adjustments made therein have been properly applied on the basis described therein.
(j) Since the respective dates as of which information is given in the Registration Statement, including the Prospectus, other than as disclosed therein: (i) there has not been any material adverse change in the financial condition or in the earnings, capital, properties or business affairs of any of the Primary Parties or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; (ii) there has not been any change in total assets of the Holding Company in an amount greater than $2,000,000, any material increase in the aggregate amount of loans past due ninety (90) days or more, or any real estate acquired by foreclosure or loans characterized as "in substance foreclosure"; nor has the Holding Company issued any securities or incurred any liability or obligation for borrowings other than in the ordinary course of business; and (iii) there have not been any material transactions entered into by any of the Primary Parties, other than those in the ordinary course of business. The capitalization, liabilities, assets, properties and business of the Primary Parties conform in all material respects to the descriptions thereof contained in the Prospectus and none of the Primary Parties has any material liabilities of any kind, contingent or otherwise, except as disclosed in Registration Statement or the Prospectus.
(k) The Holding Company is a corporation duly organized and in good standing under the federal laws of the United States, with corporate authority to own its properties and to conduct its business as described in the Prospectus, and is qualified to transact business and in good standing in each jurisdiction in which the conduct of business requires such qualification unless the failure to qualify in one or more of such jurisdictions would not have a material adverse effect on the financial condition, earnings, capital, properties or business affairs of the Primary Parties. The Holding Company has obtained all licenses, permits and other governmental authorizations required for the conduct of its business, except those that individually or in the aggregate would not materially adversely affect the financial condition, earnings, capital, assets, properties or business of the Primary Parties taken as a whole; and all such licenses, permits and governmental authorizations are in full force and effect, and the Holding Company is in compliance therewith in all material respects.
(l) The MHC is duly organized and is validly existing as a federally chartered mutual holding company under the laws of the United States, duly authorized to conduct its business and own its property as described in the Registration Statement and the Prospectus; the MHC has obtained all licenses, permits and other governmental authorizations required for the conduct of its business except those that individually or in the aggregate would not materially adversely affect the financial condition, earnings, capital, assets or properties of the Primary Parties taken as a whole; all such licenses, permits and governmental authorizations are in full force and effect and the MHC is in compliance therewith in all material respects; the MHC is duly qualified as a foreign corporation to transact business in each jurisdiction in which the failure to be so qualified in one or more of such jurisdictions would have a material adverse effect on the financial condition, earnings, capital, assets, properties or business of the Primary Parties.
(m) The MHC does not own any equity securities or any equity interest in any business enterprise except as described in the Prospectus.
(n) The MHC is not authorized to issue any shares of capital stock.
(o) The Bank is a duly organized and validly existing federally chartered savings bank in stock form, duly authorized to conduct its business as described in the Prospectus; the activities of the Bank are permitted by the rules, regulations and practices of the OTS; the Bank has obtained all licenses, permits and other governmental authorizations currently required for the conduct of its business except those that individually or in the aggregate would not materially adversely affect the financial condition of the Primary Parties taken as a whole; all such licenses, permits and other governmental authorizations are in full force and effect and the Bank is in good standing under the laws of the United States and is duly qualified as a foreign corporation to transact business in each jurisdiction in which failure to so qualify would have a material adverse effect upon the financial condition, earnings, capital, properties or business affairs of the Bank; all of the issued and outstanding capital stock of the Bank after the Offering will be duly and validly issued and fully paid and nonassessable; and the Holding Company will directly own all of such capital stock free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction. The Bank does not own equity securities or any equity interest in any other business enterprise except as otherwise described in the Prospectus.
(p) The Bank is a member of the Federal Home Loan Bank of New York ("FHLB of New York"); the deposit accounts of the Bank are insured by the FDIC up to applicable limits.
(q) [Reserved].
(r) Upon consummation of the Offering, the authorized, issued and outstanding equity capital of the Holding Company will be within the range set forth in the Prospectus under the caption "Capitalization" and, except for the shares of Common Stock held by the MHC, no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date; and the shares of Common Stock to be subscribed for in the Offering have been duly and validly authorized for issuance and, when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan and the Prospectus, will be duly and validly issued and fully paid and nonassessable; the issuance of the Shares is not subject to preemptive rights, except for the Subscription Rights granted pursuant to the Plan; and the terms and provisions of the shares of Common Stock will conform in all material respects to the description thereof contained in the Prospectus. Upon issuance of the Shares, good title to the Shares will be transferred from the Holding Company to the purchasers of Shares against payment therefor in the Offering as set forth in the Plan and the Prospectus.
(s) Neither the Bank, nor the Holding Company nor the MHC is in violation of their respective articles of incorporation or charter or their respective bylaws, or in material default in the performance or observance of any obligation, agreement, covenant, or condition contained in any contract, lease, loan agreement, indenture or other instrument to which they are a party or by which they, or any of their respective property, may be bound which would result in a material adverse change in the condition (financial or otherwise), earnings, capital, properties or assets. The consummation of the transactions herein contemplated will not (i) conflict with or constitute a breach of, or default under, the articles of incorporation, charter or bylaws of the Bank, the Holding Company or the MHC, or materially conflict with or constitute a material breach of, or default under, any material contract, lease or other instrument to which any of the Primary Parties has a beneficial interest, or any applicable law, rule, regulation or order that is material to the financial condition of the Holding Company; (ii) violate any authorization, approval, judgment, decree, order, statute, rule or regulation applicable to the Primary Parties except for such violations which would not have a material adverse effect on the financial condition and results of operations of the Holding Company; or (iii) result in the creation of any material lien, charge or encumbrance upon any property of the Primary Parties.
(t) No material default exists, and no event has occurred which with notice or lapse of time, or both, would constitute a material default on the part of any of the Primary Parties, in the due performance and observance of any term, covenant or condition of any indenture, mortgage, deed of trust, note, bank loan or credit agreement or any other material instrument or agreement to which any of the Primary Parties is a party or by which any of them or any of their property is bound or affected in any respect which, in any such case, is material to the Primary Pa
Appears in 1 contract
Representations and Warranties of the Primary Parties. The Primary Parties jointly and severally represent and warrant to the Agent that, except as disclosed in the Prospectus:
(a) The Holding Company Bank has, and LMIC have and, as of the Closing TimeDate, the MHC and the Holding Company will have have, all such power, authority, authorizations, approvals and orders as may be required to enter into this Agreement, to carry out the provisions and conditions hereof and to issue and sell the Shares as provided herein and as described in the Prospectus. Subject to the receipt of member and regulatory approval, the The consummation of the Conversion and the Reorganization, the execution, delivery and performance of this Agreement and the Letter Agreement and the consummation of the transactions herein contemplated, contemplated have been duly and validly authorized by all necessary corporate action on the part of the Bank and, as of the Closing Date, will have been duly and validly authorized by all necessary corporate action on the part of the MHC and the Holding Company and LMICCompany. This Agreement has had been validly executed and delivered by the Holding Company Company, the MHC and LMICthe Bank, and is a valid, legal and binding obligation of the Bank, the Holding Company and LMICthe MHC, in each case enforceable in accordance with its terms, except as the legality, validity, binding nature and enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium, conservatorship, receivership or other similar laws relating to or affecting the enforcement of creditors’ rights generally; (ii) general equity principles regardless of whether such enforceability is considered in a proceeding in equity or at law; and (iii) the extent, if any, that the provisions of Sections 10 and 11 or 12 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 savings institutions insured by the FDIC (including the laws relating to the rights of the contracting parties to equitable remedies).
(b) The Plan has been approved by the OTS.
(c) The Registration Statement was declared effective by the Commission on February __, 2008, 2000; and no stop order has been issued with respect thereto and no proceedings therefore therefor have been initiated or, or to the best knowledge of the Primary Parties, Parties threatened by the Commission. At the time the Registration Statement (Statement, including the Prospectus contained therein) therein (including any amendment or supplement thereto), became effective, the Registration Statement (including the Prospectus contained therein) complied as to form in all material respects with the 1933 Act and the regulations promulgated thereunder and the Registration Statement (Statement, including the Prospectus contained thereintherein (including any amendment or supplement thereto), any Blue Sky Application or any Sales Information (as such terms are defined in Section 10 hereof) authorized by the Primary Parties for use in connection with the Offerings did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. At , and at the time any Rule 424(b) or (c) Prospectus was filed with the Commission and at the Closing Time Date referred to in Section 5, the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto), and any Blue Sky Application or any Sales Information authorized by the Primary Parties for use in connection with the Offerings will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties in this Section 6(b6(c) shall not apply to statements or omissions made in reliance upon and in conformity with written information furnished to the Primary Parties by the Agent expressly regarding the Agent for use under the captions “MARKET FOR THE COMMON STOCK” "Market for the Common Stock" and “"The CONVERSION – Offering -- Plan of Distribution and Marketing and Underwriting Arrangements” " or written statements or omissions from any Blue Sky Application sales information or any Sales Informationinformation filed pursuant to state securities or blue sky laws or regulations regarding the Agent.
(cd) At The MHC Notice and Application, including the time Prospectus, was approved by the OTS on _________, 2000; the Proxy Statement of filing the Registration Statement Bank relating to the special meeting of the members of the Bank at which the Plan shall be considered for approval by the Bank's eligible voting members (the "Proxy Statement") and the Prospectus (including any amendment or supplement thereto) was authorized for use by the OTS, and at all times subsequent thereto until the date hereofClosing Date, the Holding Company was notMHC Notice and Application, including the Prospectus, did and is not, an ineligible issuer, will comply as defined to form in Rule 405all material respects with the Conversion Regulations and any other applicable rules and regulations of the OTS (except as modified or waived in writing by the OTS). At the time of the filing of the Registration Statement approval and at all times subsequent thereto until the time of Closing Date, the use of MHC Notice and Application, including the Prospectus (including any issuer free writing prospectus, as defined in Rule 433(hamendment or supplement thereto), the Holding Company met the conditions required by Rules 164 did not and 433 for the use of a free writing prospectus. If required to be filed, the Holding Company has filed any issuer free writing prospectus related to the offered Shares at the time it is required to be filed under Rule 433 and, if does not required to be filed, will retain such free writing prospectus in the Holding Company’s records pursuant to Rule 433(g) and if any issuer free writing prospectus is used after the date hereof in connection with the offering of the Shares the Holding Company will file or retain such free writing prospectus as required by Rule 433.
(d) As of the Applicable Time (as hereinafter defined), neither (i) the Issuer-Represented General Free Writing Prospectus(es) issued at or prior to the Applicable Time and the Statutory Prospectus, all considered together (collectively, the “General Disclosure Package”), nor (ii) any individual Issuer-Represented Limited-Use Free Writing Prospectus, when considered together with the General Disclosure Package, included include any untrue statement of a material fact or omitted omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does ; provided, however, that representations or warranties in this subsection (d) shall not apply to statements in or omissions from any Prospectus included made in the Registration Statement relating to the offered Shares or any Issuer-Represented Free Writing Prospectus based reliance upon and in conformity with written information furnished to the Primary Parties by the Agent specifically expressly regarding the Agent for use in Prospectus contained in the MHC Notice and Application under the captions "Market for the Common Stock" and "The Offering -- Plan of Distribution and Marketing Arrangements" or written statements or omissions from any sales information or information filed pursuant to state securities or blue sky laws or regulations regarding the Agent.
(e) No order has been issued by the OTS, the Commission, or any state regulatory authority, preventing or suspending the use of the Prospectus and no action by or before any such government entity to revoke any approval, authorization or order of effectiveness related to the Reorganization is pending or, to the best knowledge of the Primary Parties, threatened.
(f) The Plan has been duly adopted by the Board of Directors of the Bank. To the best knowledge of the Primary Parties, no person has, or at the Closing Date will have, sought to obtain review of the final action of the OTS in approving the Plan, the Reorganization, or the OTS Applications, pursuant to the HOLA or any other statute or regulation.
(g) The Holding Company has filed with the OTS the Holding Company Application (including the Merger Application) and as of the Closing Date the OTS will have approved of the Holding Company's acquisition of the Bank.
(h) ▇▇▇▇▇▇▇ Financial Advisors, which prepared the appraisal of the aggregate pro forma market value of the Holding Company and the Bank on which the Offerings were based (the "Appraisal"), has advised the Primary Parties in writing that it is independent with respect to each of the Primary Parties within the meaning of the Conversion Regulations.
(i) ▇▇▇▇ ▇▇▇▇▇ LLP, and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & Co., which certified the financial statements filed as part of the Registration Statement and the MHC Notice and Application, have each advised the Primary Parties that each is, with respect to each of the Primary Parties, an independent certified public accountant within the meaning of 12 C.F.R. Sections 563c.3 and 571.2(c)(3) and under the 1933 Act and the Regulations promulgated thereunder.
(j) of the Commission and generally accepted accounting principles ("GAAP") applied on a consistent basis during the periods presented except as otherwise noted therein, and present fairly in all material respects the information required to be stated therein. The other financial, statistical and pro forma information and related notes included in the Prospectus present fairly the information shown therein on a basis consistent with the audited and unaudited financial statements included in the Prospectus, and as to the pro forma adjustments, the adjustments made therein have been properly applied on the basis described therein.
(k) Since the respective dates as of which information is given in the Registration Statement, including the Prospectus; (i) there has not been any material adverse change in the financial condition or in the earnings, capital, properties or business affairs of any of the Primary Parties or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; (ii) there has not been any change in total assets of the Bank in an amount greater than $30.0 million, any material increase in the aggregate amount of loans past due ninety (90) days or more, or any real estate acquired by foreclosure or loans characterized as "in substance foreclosure"; nor has the Bank issued any securities or incurred any liability or obligation for borrowings other than in the ordinary course of business; (iii) there have not been any material transactions entered into by any of the Primary Parties, other than those in the ordinary course of business; and (iv) the capitalization, liabilities, assets, properties and business of the Primary Parties conform in all material respects to the descriptions thereof contained in the Prospectus and none of the Primary Parties has any material liabilities of any kind, contingent or otherwise, except as disclosed in Registration Statement or the Prospectus.
(l) As used of the Closing Date, the Holding Company will be a corporation duly organized and in this paragraph good standing under the federal laws of the United States, with corporate power authority to own its properties and elsewhere to conduct its business as described in this Agreement:the Prospectus, and will be qualified to transact business and in good standing in each jurisdiction in which the conduct of business requires such qualification unless the failure to qualify in one or more of such jurisdictions would not have a material adverse effect on the financial condition, earnings, capital, properties or business affairs of the Primary Parties. As of the Closing Date, the Holding Company will have obtained all licenses, permits and other governmental authorizations required for the conduct of its business, except those that individually or in the aggregate would not materially adversely affect the financial condition, earnings, capital, assets or properties of the Primary Parties taken as a whole; and as of the Closing Date, all such licenses, permits and governmental authorizations will be in full force and effect, and the Holding Company will be in compliance therewith in all material respects.
(m) As of the Closing Date, the MHC will be duly organized and will be validly existing as a federally chartered mutual holding company under the laws of the United States, duly authorized to conduct its business and own its property as described in the Registration Statement and the Prospectus; as of the Closing Date, the MHC will have obtained all licenses, permits and other governmental authorizations required for the conduct of its business except those that individually or in the aggregate would not materially adversely affect the financial condition, earnings, capital, assets or properties of the Primary Parties taken as a whole; as of the Closing Date, all such licenses, permits and governmental authorizations will be in full force and effect and the MHC will be in compliance therewith in all material respects; as of the Closing Date, the MHC will be duly qualified as a foreign corporation to transact business in each jurisdiction in which the failure to be so qualified in one or more of such jurisdictions would have a material adverse effect on the financial condition, earnings, capital, assets properties or business of the Primary Parties.
(n) The MHC does not, and as of the Closing Date, will not own any equity securities or any equity interest in any business enterprise except as described in the Prospectus.
(o) The MHC is not authorized to issue any shares of capital stock.
(p) The Bank is duly organized and validly existing federally chartered savings association in mutual form, duly authorized to conduct its business as described in the Prospectus; the activities of the Bank are permitted by the rules, regulations and practices of the OTS; the Bank has obtained all licenses, permits and other governmental authorizations currently required for the conduct of its business except those that individually or in the aggregate would not materially adversely affect the financial condition of the Primary Parties taken as a whole; all such licenses, permits and other governmental authorizations are in full force and effect and the Bank is in good standing under the laws of the United States and is duly qualified as a foreign corporation to transact business in each jurisdiction in which failure to so qualify would have a material adverse effect upon the financial condition, earnings, capital, properties or business affairs of the Bank; all of the issued and outstanding capital stock of the Bank after the Reorganization will be duly and validly issued and fully paid and nonassessable; and the Holding Company will directly own all of such capital stock free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction. The Bank does not own equity securities or any equity interest in any other business enterprise except as otherwise described in the Prospectus.
(q) The Bank is a member of the Federal Home Loan Bank of Seattle ("FHLB of Seattle"); the deposit accounts of the Bank are insured by the FDIC up to applicable limits. Upon consummation of the Reorganization, the rights of the members of the Bank in its mutual form shall be transferred to MHC in accordance with the Plan and the requirements of the Conversion Regulations.
(r) The Bank is not authorized to issue any shares of capital stock.
(s) Upon consummation of the Reorganization, the authorized, issued and outstanding equity capital of the Holding Company will be within the range set forth in the Prospectus under the caption "Capitalization" and, except for the shares of Common Stock held by MHC, no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date; and the shares of Common Stock to be subscribed for in the Offering have been duly and validly authorized for issuance and, when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan and the Prospectus, will be duly and validly issued and fully paid and nonassessable; the issuance of the Shares is not subject to preemptive rights, except for the Subscription Rights granted pursuant to the Plan; and the terms and provisions of the shares of Common Stock will conform in all material respects to the description thereof contained in the Prospectus. Upon issuance of the Shares, good title to the Shares will be transferred from the Holding Company to the purchasers of Shares against payment therefor in the Offering as set forth in the Plan and the Prospectus.
(t) The Bank is not, and as of the Closing Date neither the Holding Company nor the MHC will be, in violation of their respective articles of incorporation or charter or their respective bylaws, or in material default in the performance or observance of any obligation, agreement, covenant, or condition contained in any contract, lease, loan agreement, indenture or other instrument to which they are a party or by which they, or any of their respective property, may be bound which would result in a material adverse change in the condition (financial or otherwise), earnings, capital, properties or assets. The consummation of the transactions herein contemplated will not (i) conflict with or constitute a breach of, or default under, the articles of incorporation, charter or bylaws of the Bank or, as of the Closing Date, the Holding Company or the MHC, or materially conflict with or constitute a material breach of, or default under, any material contract, lease or other instrument to which any of the Primary Parties has a beneficial interest, or any applicable law, rule, regulation or order that is material to the financial condition of the Bank; (ii) violate any authorization, approval, judgment, decree, order, statute, rule or regulation applicable to the Primary Parties except for such violations which would not have a material adverse effect on the financial condition and results of o
Appears in 1 contract
Sources: Agency Agreement (Eagle Bancorp/Mt)
Representations and Warranties of the Primary Parties. The ----------------------------------------------------- Primary Parties jointly and severally represent and warrant to the Agent that, except as disclosed in the Prospectus:
(a) The Holding Company Bank has, and LMIC have and, as of the Closing TimeDate, the MHC and the Holding Company will have have, all such power, authority, authorizations, approvals and orders as may be required to enter into this Agreement, to carry out the provisions and conditions hereof and to issue and sell the Shares as provided herein and as described in the Prospectus. Subject to the receipt of member and regulatory approval, the The consummation of the Conversion and the Reorganization, the execution, delivery and performance of this Agreement and the Letter Agreement and the consummation of the transactions herein contemplated, contemplated have been duly and validly authorized by all necessary corporate action on the part of the Bank and, as of the Closing Date, will have been duly and validly authorized by all necessary corporate action on the part of the MHC and the Holding Company and LMICCompany. This Agreement has had been validly executed and delivered by the Holding Company Company, the MHC and LMICthe Bank, and is a valid, legal and binding obligation of the Bank, the Holding Company and LMICthe MHC, in each case enforceable in accordance with its terms, except as the legality, validity, binding nature and enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium, conservatorship, receivership or other similar laws relating to or affecting the enforcement of creditors’ rights generally; (ii) general equity principles regardless of whether such enforceability is considered in a proceeding in equity or at law; and (iii) the extent, if any, that the provisions of Sections 10 and 11 or 12 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 savings institutions insured by the FDIC (including the laws relating to the rights of the contracting parties to equitable remedies).
(b) The Plan has been approved by the OTS.
(c) The Registration Statement was declared effective by the Commission on ___________, 2008, 1998; and no stop order has been issued with respect thereto and no proceedings therefore therefor have been initiated or, or to the best knowledge of the Primary Parties, Parties threatened by the Commission. At the time the Registration Statement (Statement, including the Prospectus contained therein) therein (including any amendment or supplement thereto), became effective, the Registration Statement (including the Prospectus contained therein) complied as to form in all material respects with the 1933 Act and the regulations promulgated thereunder and the Registration Statement (Statement, including the Prospectus contained thereintherein (including any amendment or supplement thereto), any Blue Sky Application or any Sales Information (as such terms are defined in Section 10 hereof) authorized by the Primary Parties for use in connection with the Offerings did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. At , and at the time any Rule 424(b) or (c) Prospectus was filed with the Commission and at the Closing Time Date referred to in Section 5, the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto), and any Blue Sky Application or any Sales Information authorized by the Primary Parties for use in connection with the Offerings will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties in this Section 6(b6(c) shall not apply to statements or omissions made in reliance upon and in conformity with written information furnished to the Primary Parties by the Agent expressly regarding the Agent for use under the captions “MARKET FOR THE COMMON STOCK” "Market for the Common Stock" and “"The CONVERSION – Marketing Reorganization and Underwriting Arrangements” Offering -- Plan of Distribution and Selling Commissions" or written statements or omissions from any Blue Sky Application sales information or any Sales Informationinformation filed pursuant to state securities or blue sky laws or regulations regarding the Agent.
(cd) At The MHC Notice and Application, including the time Prospectus, was approved by the OTS on ___________; and the Proxy Statement of filing the Registration Statement Bank relating to the special meeting of the members of the Bank at which the Plan shall be considered for approval by the Bank's eligible voting members (the "Proxy Statement"), was authorized for use by the Notice and Application, including the Prospectus, by the OTS (including any amendment or supplement thereto) and at all times subsequent thereto until the date hereofClosing Date, the Holding Company was notMHC Notice and Application, including the Prospectus, did and is not, an ineligible issuer, will comply as defined to form in Rule 405all material respects with the Conversion Regulations and any other applicable rules and regulations of the OTS (except as modified or waived in writing by the OTS). At the time of the filing approval of the Registration Statement MHC Notice and at Application, including the time of the use of Prospectus (including any issuer free writing prospectus, as defined in Rule 433(hamendment or supplement thereto), the Holding Company met the conditions required by Rules 164 did not and 433 for the use of a free writing prospectus. If required to be filed, the Holding Company has filed any issuer free writing prospectus related to the offered Shares at the time it is required to be filed under Rule 433 and, if does not required to be filed, will retain such free writing prospectus in the Holding Company’s records pursuant to Rule 433(g) and if any issuer free writing prospectus is used after the date hereof in connection with the offering of the Shares the Holding Company will file or retain such free writing prospectus as required by Rule 433.
(d) As of the Applicable Time (as hereinafter defined), neither (i) the Issuer-Represented General Free Writing Prospectus(es) issued at or prior to the Applicable Time and the Statutory Prospectus, all considered together (collectively, the “General Disclosure Package”), nor (ii) any individual Issuer-Represented Limited-Use Free Writing Prospectus, when considered together with the General Disclosure Package, included include any untrue statement of a material fact or omitted omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does ; provided, however, that representations or warranties in this subsection (d) shall not apply to statements in or omissions from any Prospectus included made in the Registration Statement relating to the offered Shares or any Issuer-Represented Free Writing Prospectus based reliance upon and in conformity with written information furnished to the Primary Parties by the Agent specifically expressly regarding the Agent for use in Prospectus contained in the MHC Notice and Application under the captions "Market for the Common Stock" and "The Reorganization and Offering -- Plan of Distribution and Selling Commissions" or written statements or omissions from any sales information or information filed pursuant to state securities or blue sky laws or regulations regarding the Agent.
(e) No order has been issued by the OTS, the Commission, or any state regulatory authority, preventing or suspending the use of the Prospectus and no action by or before any such government entity to revoke any approval, authorization or order of effectiveness related to the Reorganization is pending or, to the best knowledge of the Primary Parties, threatened.
(f) The Plan has been duly adopted by the Board of Directors of the Bank. To the best knowledge of the Primary Parties, no person has, or at the Closing Date will have, sought to obtain review of the final action of the OTS in approving the Plan, the Reorganization, or the OTS Applications, pursuant to the HOLA or any other statute or regulation.
(g) The Holding Company has filed with the OTS the Holding Company Application (including the Merger Application) and as of the Closing Date the OTS will have approved of the Holding Company's acquisition of the Bank.
(h) RP Financial, which prepared the appraisal of the aggregate pro forma market value of the Holding Company and the Bank on which the Offerings were based (the "Appraisal"), has advised the Primary Parties in writing that it is independent with respect to each of the Primary Parties within the meaning of the Conversion Regulations.
(i) KPMG Peat Marwick, LLP, which certified the financial statements filed as part of the Registration Statement and the MHC Notice and Application, has advised the Primary Parties that it is, with respect to each of the Primary Parties, an independent certified public accountant within the meaning of 12 C.F.R. Sections 563c.3 and 571.2(c)(3) and under the 1933 Act and the Regulations promulgated thereunder.
(j) The financial statements and the notes thereto which are included in the Registration Statement and which are a part of the Prospectus present fairly the financial condition and retained earnings of the Bank as of the dates indicated and the results of operations and cash flows for the periods specified. The financial statements comply in all material respects with the applicable accounting requirements of Title 12 of the Code of Federal Regulations, Regulation S-X of the Commission and generally accepted accounting principles ("GAAP") applied on a consistent basis during the periods presented except as otherwise noted therein, and present fairly in all material respects the information required to be stated therein. The other financial, statistical and pro forma information and related notes included in the Prospectus present fairly the information shown therein on a basis consistent with the audited and unaudited financial statements included in the Prospectus, and as to the pro forma adjustments, the adjustments made therein have been properly applied on the basis described therein.
(k) Since the respective dates as of which information is given in the Registration Statement, including the Prospectus; (i) there has not been any material adverse change in the financial condition or in the earnings, capital, properties or business affairs of any of the Primary Parties or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; (ii) there has not been any change in total assets of the Bank in an amount greater than $50.0 million, any material increase in the aggregate amount of loans past due ninety (90) days or more, or any real estate acquired by foreclosure or loans characterized as "in substance foreclosure"; nor has the Bank issued any securities or incurred any liability or obligation for borrowings other than in the ordinary course of business; (iii) there have not been any material transactions entered into by any of the Primary Parties, other than those in the ordinary course of business; and (iv) the capitalization, liabilities, assets, properties and business of the Primary Parties conform in all material respects to the descriptions thereof contained in the Prospectus and, none of the Primary Parties has any material liabilities of any kind, contingent or otherwise, except as disclosed in Registration Statement or the Prospectus.
(l) As used of the Closing Date, the Holding Company will be a corporation duly organized and in this paragraph good standing under the federal laws of the United States, with corporate power authority to own its properties and elsewhere to conduct its business as described in this Agreement:the Prospectus, and will be qualified to transact business and in good standing in each jurisdiction in which the conduct of business requires such qualification unless the failure to qualify in one or more of such jurisdictions would not have a material adverse effect on the financial condition, earnings, capital, properties or business affairs of the Primary Parties. As of the Closing Date, the Holding Company will have obtained all licenses, permits and other governmental authorizations required for the conduct of its business, except those that individually or in the aggregate would not materially adversely affect the financial condition, earnings, capital, assets or properties of the Primary Parties taken as a whole; and as of the Closing Date, all such licenses, permits and governmental authorizations will be in full force and effect, and the Holding Company will be in compliance therewith in all material respects.
(m) As of the Closing Date, the MHC will be duly organized and will be validly existing as a federally chartered mutual holding company under the laws of the United States, duly authorized to conduct its business and own its property as described in the Registration Statement and the Prospectus; as of the Closing Date, the MHC will have obtained all licenses, permits and other governmental authorizations required for the conduct of its business except those that individually or in the aggregate would not materially adversely affect the financial condition, earnings, capital, assets or properties of the Primary Parties taken as a whole; as of the Closing Date, all such licenses, permits and governmental authorizations will be in full force and effect and the MHC will be in compliance therewith in all material respects; as of the Closing Date, the MHC will be duly qualified as a foreign corporation to transact business in each jurisdiction in which the failure to be so qualified in one or more of such jurisdictions would have a material adverse effect on the financial condition, earnings, capital, assets properties or business of the Primary Parties.
(n) The MHC does not, and as of the Closing Date, will not own any equity securities or any equity interest in any business enterprise except as described in the Prospectus.
(o) The MHC is not authorized to issue any shares of capital stock.
(p) The Bank is duly organized and validly existing federally chartered savings association in mutual form, duly authorized to conduct its business as described in the Prospectus; the activities of the Bank are permitted by the rules, regulations and practices of the OTS; the Bank has obtained all licenses, permits and other governmental authorizations currently required for the conduct of its business except those that individually or in the aggregate would not materially adversely affect the financial condition of the Primary Parties taken as a whole; all such licenses, permits and other governmental authorizations are in full force and effect and the Bank is in good standing under the laws of the United States and is duly qualified as a foreign corporation to transact business in each jurisdiction in which failure to so qualify would have a material adverse effect upon the financial condition, earnings, capital, properties or business affairs of the Bank; all of the issued and outstanding capital stock of the Bank after the Reorganization will be duly and validly issued and fully paid and nonassessable; and the Holding Company will directly own all of such capital stock free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction. The Bank does not own equity securities or any equity interest in any other business enterprise except as otherwise described in the Prospectus.
(q) The Bank is a member of the Federal Home Loan Bank of New York ("FHLB of New York"); the deposit accounts of the Bank are insured by the FDIC up to applicable limits. Upon consummation of the Reorganization, the rights of the members of the Bank in its mutual form shall be transferred to MHC in accordance with the Plan and the requirements of the Conversion Regulations.
(r) The Bank is not authorized to issue any shares of capital stock.
(s) Upon consummation of the Reorganization, the authorized, issued and outstanding equity capital of the Holding Company will be within the range set forth in the Prospectus under the caption "Capitalization" and, except for the shares of Common Stock held by MHC, no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date; and the shares of Common Stock to be subscribed for in the Offering have been duly and validly authorized for issuance and, when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan and the Prospectus, will be duly and validly issued and fully paid and nonassessable; the issuance of the Shares is not subject to preemptive rights, except for the Subscription Rights granted pursuant to the Plan; and the terms and provisions of the shares of Common Stock will conform in all material respects to the description thereof contained in the Prospectus. Upon issuance of the Shares, good title to the Shares will be transferred from the Holding Company to the purchasers of Shares against payment therefor in the Offering as set forth in the Plan and the Prospectus.
(t) The Bank is not, and as of the Closing Date neither the Holding Company nor the MHC will be, in violation of their respective articles of incorporation or charter or their respective bylaws, or in material default in the performance or observance of any obligation, agreement, covenant, or condition contained in any contract, lease, loan agreement, indenture or other instrument to which they are a party or by which they, or any of their respective property, may be bound which would result in a material adverse change in the condition (financial or otherwise), earnings, capital, properties or assets. The consummation of the transactions herein contemplated will not (i) conflict with or constitute a breach of, or default under, the Articles of Incorporation, charter or bylaws of the Bank or, as of the Closing Date, the Holding Company or the MHC, or materially conflict with or constitute a materia
Appears in 1 contract
Representations and Warranties of the Primary Parties. The Primary Parties jointly and severally represent and warrant to the Agent that, except as disclosed in the Prospectus:
(a) The Holding Company Bank has, and LMIC have and, as of the Closing TimeDate, the MHC and the Holding Company will have have, all such power, authority, authorizations, approvals and orders as may be required to enter into this Agreement, to carry out the provisions and conditions hereof and to issue and sell the Shares as provided herein and as described in the Prospectus. Subject to the receipt of member and regulatory approval, the The consummation of the Conversion and the Reorganization, the execution, delivery and performance of this Agreement and the Letter Agreement and the consummation of the transactions contemplated herein contemplated, have been duly and validly authorized by all necessary corporate action on the part of the Bank (except for the approval of the Bank's depositors necessary for the consumption of the Reorganization) and, as of the Closing Date, will have been duly and validly authorized by all necessary corporate action on the part of the MHC and the Holding Company and LMICCompany. This Agreement has been validly executed and delivered by the Holding Company and LMICPrimary Parties, and is a valid, legal and binding obligation of the Holding Company and LMICPrimary Parties, in each case enforceable in accordance with its terms, except as the legality, validity, binding nature and enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium, reorganization, conservatorship, receivership or other similar laws relating to or affecting the enforcement of creditors’ ' rights generally; , (ii) general equity principles regardless of whether such enforceability is considered in a proceeding in equity or at law; , and (iii) the extent, if any, that the provisions of Sections 11 or 12 hereof may be unenforceable as against public policy.
(b) The Registration Statement was declared effective by the Commission on ________________, 2008, 1999; and no stop order has been issued with respect thereto and no proceedings therefore have been initiated or, to the best knowledge of the Primary Parties, Parties no proceedings therefor have been initiated or threatened by the Commission. At the time the Registration Statement (Statement, including the Prospectus contained therein) therein (including any amendment or supplement thereto), became effective, the Registration Statement (including the Prospectus contained therein) complied as to form in all material respects with the 1933 Act and the regulations promulgated thereunder and the Registration Statement (Statement, including the Prospectus contained therein) therein (including any amendment or supplement thereto), did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. At , and at the time any Rule 424(b) or (c) Prospectus was filed with the Commission and at the Closing Time Date referred to in Section 5, the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto), ) and any Blue Sky Application or any Sales Information authorized for use by any of the Primary Parties for use in connection with the Offerings Offerings, will 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; provided, however, that the representations and warranties in this Section 6(b6(c) shall not apply to statements or omissions made in reliance upon and in conformity with written information furnished to the Primary Parties by the Agent expressly regarding the Agent for use under the captions “MARKET FOR THE COMMON STOCK” "Market for the Common Stock", "The Reorganization and “The CONVERSION – the Offering - Marketing and Underwriting Arrangements” " and "The Reorganization and the Offering -- Syndicated Community Offering" or with written statements or omissions from any Blue Sky Application Sales Information or any Sales Informationinformation filed pursuant to state securities or blue sky laws or regulations regarding the Agent.
(c) At The MHC Notice and Application was filed with the time FDIC and the FDIC has issued to the Bank a notice of filing its intent not to object to the Registration Statement Reorganization; the NJ Application has been approved by the DOBI; and at the date hereof, the Holding Company was notApplication has been approved by the FRB. The MHC Notice and Application, the NJ Application, did and will as of the Closing Date comply as to form in all material respects with the Conversion Regulations and any other applicable rules and regulations of the FDIC, the DOBI, and is notthe FRB, an ineligible issuerrespectively (except as modified or waived in writing by the FDIC, as defined in Rule 405. At the time DOBI or the FRB.
(d) No order has been issued by the FDIC, the DOBI, or any state regulatory authority, preventing or suspending the use of the filing Prospectus and no action by or before any such government entity to revoke any approval, authorization or order of effectiveness related to the Reorganization is pending or, to the best knowledge of the Primary Parties, threatened.
(e) The Plan has been duly adopted by the Board of Managers of the Bank. To the best knowledge of the Primary Parties, no person has, or at the Closing Date will have, sought to obtain review of the final action of the FDIC or the DOBI in approving the Plan, the Reorganization, or the Applications, pursuant to the BHCA or any other statute or regulation.
(f) The MHC and the Holding Company have filed with the FRB the Holding Company Application and as of the Closing Date the FRB will have approved of the MHC's and the Holding Company's becoming bank holding companies with respect to the Bank.
(g) RP Financial, LC., which prepared the appraisal of the aggregate pro forma market value of the Common Stock on which the Offerings were based (the "Appraisal"), has advised the Primary Parties in writing that it is independent with respect to each of the Primary Parties.
(h) KPMG LLP ("KPMG"), which certified the financial statements filed as part of the Registration Statement and at the time MHC Notice and Application, has advised the Primary Parties that it is and independent certified public accountant within the meaning of the use Code of any issuer free writing prospectusEthics of the AICPA, as defined in Rule 433(h)and KPMG is, with respect to the Company, the Holding Company met the conditions required by Rules 164 Bank and 433 for the use of a free writing prospectus. If required to be filed, the Holding Company has filed any issuer free writing prospectus related to the offered Shares at the time it is required to be filed under Rule 433 and, if not required to be filed, will retain such free writing prospectus in the Holding Company’s records pursuant to Rule 433(g) and if any issuer free writing prospectus is used after the date hereof in connection with the offering each subsidiary of the Shares the Holding Company will file or retain such free writing prospectus Bank, independent certified public accountants as required by Rule 433the 1933 Act and the 1933 Act Regulations.
(d) As of the Applicable Time (as hereinafter defined), neither (i) the Issuer-Represented General Free Writing Prospectus(es) issued at or prior to the Applicable Time The financial statements and the Statutory Prospectus, all considered together (collectively, the “General Disclosure Package”), nor (ii) any individual Issuer-Represented Limited-Use Free Writing Prospectus, when considered together with the General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under notes thereto which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from any Prospectus are included in the Registration Statement relating and which are a part of the Prospectus present fairly the financial condition and retained earnings of the Bank as of the dates indicated and the results of operations and cash flows for the periods specified. The financial statements comply in all material respects with the applicable accounting requirements of Title 12 of the Code of Federal Regulations, Regulation S-X of the Commission and generally accepted accounting principles ("GAAP") applied on a consistent basis during the periods presented, except as otherwise noted therein, and present fairly in all material respects the information required to be stated therein. The other financial, statistical and pro forma information and related notes included in the Prospectus present fairly the information shown therein on a basis consistent with the audited and unaudited financial statements included in the Prospectus, and as to the offered Shares pro forma adjustments, the adjustments made therein have been consistently applied on the basis described therein.
(j) Since the respective dates as of which information is given in the Registration Statement, including the Prospectus; (i) there has not been any material adverse change in the financial condition or in the earnings, capital, properties or business affairs of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; (ii) there have not been any material transactions entered into by any of the Primary Parties, other than those in the ordinary course of business; and (iii) the capitalization, liabilities, assets, properties and business of the Primary Parties conform in all material respects to the descriptions thereof contained in the Prospectus and, none of the Primary Parties has any material liabilities of any kind, contingent or otherwise, except as disclosed in the Registration Statement or the Prospectus.
(k) As of the Closing Date, the Holding Company will be a stock corporation duly organized and in good standing under the laws of the State of Delaware, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus, and will be qualified to transact business and in good standing in New Jersey and in each jurisdiction in which the conduct of business requires such qualification, unless the failure to qualify in one or more of such jurisdictions would not have a material adverse effect on the financial condition, earnings, capital, properties or business affairs of the Primary Parties taken as a whole. As of the Closing Date, the Holding Company will have obtained all licenses, permits and other governmental authorizations required for the conduct of its business, except those that individually or in the aggregate would not materially adversely affect the financial condition, earnings, capital, assets or properties of the Primary Parties taken as a whole; and as of the Closing Date, all such licenses, permits and governmental authorizations will be in full force and effect, and the Holding Company will be in compliance therewith in all material respects.
(l) As of the Closing Date, the MHC will be duly organized and will be validly existing as a mutual savings bank holding company under the laws of the State of New Jersey, duly authorized to conduct its business and own its property as described in the Registration Statement and the Prospectus; as of the Closing Date, the MHC will have obtained all licenses, permits and other governmental authorizations required for the conduct of its business, except those that individually or in the aggregate would not materially adversely affect the financial condition, earnings, capital, assets or properties of the Primary Parties taken as a whole; as of the Closing Date, all such licenses, permits and governmental authorizations will be in full force and effect and the MHC will be in compliance therewith in all material respects; as of the Closing Date, the MHC will be duly qualified as a foreign corporation to transact business in New Jersey and in each other jurisdiction in which the failure to be so qualified would have a Material Adverse Effect on the financial condition, earnings, or business of the Primary Parties taken as a whole (a "Material Adverse Effect").
(m) The Holding Company does not, and as of the Closing Date, will not own any equity securities or any Issuerequity interest in any business enterprise except as described in the Prospectus.
(n) As of the Closing Date, the MHC will not be authorized to issue any shares of capital stock.
(o) The Bank is a duly organized and validly existing New Jersey-Represented Free Writing chartered savings bank in mutual form, duly authorized to conduct its business as described in the Prospectus; the activities of the Bank are permitted by the rules, regulations and practices of the FDIC, and the DOBI and under New Jersey law; the Bank has obtained all licenses, permits and other governmental authorizations currently required for the conduct of its business, except those that individually or in the aggregate would not materially adversely affect the financial condition of the Primary Parties taken as a whole; all such licenses, permits and other governmental authorizations are in full force and effect and the Bank is in good standing under the laws of the State of New Jersey and is duly qualified as a foreign corporation to transact business in each jurisdiction in which failure to so qualify would have a Material Adverse Effect; all of the issued and outstanding capital stock of the Bank after the Reorganization will be duly and validly issued and fully paid and nonassessable; and the Holding Company will directly own all of such capital stock free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction. The Bank does not own equity securities or any equity interest in any other business enterprise except as otherwise described in the Prospectus based upon or as are immaterial in amount and are not required to be described in conformity the Prospectus.
(p) The deposit accounts of the Bank are insured by the FDIC up to applicable limits. Upon consummation of the Reorganization, the Bank will establish a liquidation account for the benefit of the Bank's depositors, in accordance with written information furnished the Plan and the requirements of the Conversion Regulations.
(q) As of the Closing Date, the Bank will not be authorized to issue any shares of capital stock except to the Holding Company.
(r) Upon consummation of the Reorganization, the authorized, issued and outstanding equity capital of the Holding Company will be within the range set forth in the Prospectus under the caption "Capitalization" and, except for the shares of Common Stock held by the Bank and MHC, in connection with the Reorganization, no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date; and the shares of Common Stock to be subscribed for in the Offering have been duly and validly authorized for issuance and, when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan and the Prospectus, will be duly and validly issued and fully paid and nonassessable; the issuance of the Shares is not subject to preemptive rights, except for the Subscription Rights granted pursuant to the Plan; and the terms and provisions of the shares of Common Stock will conform in all material respects to the description thereof contained in the Prospectus. Upon issuance of the Shares, good title to the Shares will be transferred from the Holding Company to the purchasers of Shares against payment therefor in the Offering as set forth in the Plan and the Prospectus.
(s) The Primary Parties are not in violation of their respective articles of incorporation or charter or their respective bylaws, or in material default in the performance or observance of any obligation, agreement, covenant, or condition contained in any contract, lease, loan agreement, indenture or other instrument to which they are a party or by which they, or any of their respective property, may be bound which would result in a Material Adverse Effect. The consummation of the transactions herein contemplated will not (i) conflict with or constitute a breach of, or default under, the Certificate of Incorporation, charter or bylaws of any of the Primary Parties, or materially conflict with or constitute a material breach of, or default under, any material contract, lease or other instrument to which any of the Primary Parties has a beneficial interest, or any applicable law, rule, regulation or order that is material to the financial condition of the Bank; (ii) violate any authorization, approval, judgment, decree, order, statute, rule or regulation applicable to the Primary Parties except for such violations which would not have a material adverse effect on the financial condition and results of operations of the Bank; or (iii) result in the creation of any lien, charge or encumbrance upon any property of the Primary Parties, except for such liens, changes or encumbrances that would not individually or in the aggregate have a Material Adverse Effect.
(t) No material default exists, and no event has occurred which with notice or lapse of time, or both, would constitute a material default on the part of any of the Primary Parties, in the due performance and observance of any term, covenant or condition of any indenture, mortgage, deed of trust, note, bank loan or credit agreement or any other material instrument or agreement to which any of the Primary Parties is a party or by which any of their property is bound or affected in any respect which, in any such case, is material to the Agent specifically for use therein. As used Primary Parties taken as a whole, and such agreements are in this paragraph full force and elsewhere effect; and no other party to any such agreements has instituted or, to the best knowledge of any of the Primary Parties, threatened any action or proceeding wherein any of the Primary Parties is alleged to be in this Agreement:default thereunder under circumstances where such action or proceeding, if det
Appears in 1 contract
Representations and Warranties of the Primary Parties. The Primary Parties jointly and severally represent and warrant to the Agent that, except as disclosed in the Prospectus:
(a) The MHC, the Mid-Tier Holding Company, the Holding Company and LMIC have and, as of the Closing Time, will Bank have all such power, authority, authorizations, approvals and orders as may be required to enter into this Agreement, and, as of the Closing Date, the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank will have all such power, authority, authorizations, approvals and orders as may be required to carry out the provisions and conditions hereof and to issue and sell the Offer Shares and to issue the Exchange Shares as provided herein and as described in the Prospectus. Subject to the receipt of member and regulatory approval, the The consummation of the Conversion and the ReorganizationConversion, the execution, delivery and performance of this Agreement and the Letter Agreement and the consummation of the transactions contemplated herein contemplated, have been duly and validly authorized by all necessary corporate action on the part of the MHC, the Mid-Tier Holding Company, the Holding Company and LMICthe Bank. This Agreement has been validly executed and delivered by the Holding Company and LMICPrimary Parties, and is a valid, legal and binding obligation of the Holding Company and LMICPrimary Parties, in each case enforceable in accordance with its terms, except as the legality, validity, binding nature and enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium, conservatorship, receivership or other similar laws relating to or affecting the enforcement of creditors’ rights generally; (ii) general equity principles regardless of whether such enforceability is considered in a proceeding in equity or at law; and (iii) the extent, if any, that the provisions of Sections 11 or and 12 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 savings institutions insured by the FDIC (including the laws relating to the rights of the contracting parties to equitable remedies).
(b) The Registration Statement was declared effective by the Commission on November 10, 2008, and no 2011. No stop order has been issued with respect thereto and no to the Registration Statement. No proceedings therefore related to the Registration Statement have been initiated or, to the best knowledge of the Primary Parties, threatened by the Commission. At the time the Registration Statement (Statement, including the Prospectus contained therein) therein (including any amendment or supplement thereto), became effective, the Registration Statement (including the Prospectus contained therein) complied as to form in all material respects with the 1933 Act and the regulations promulgated thereunder 1933 Act Regulations and the Registration Statement (Statement, including the Prospectus contained thereintherein (including any amendment or supplement thereto), any Blue Sky Application or any Sales Information (as such terms are defined in Section 11 hereof) authorized by the Primary Parties for use in connection with the Offering, did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. At the time any Rule 424(b) or (c) Prospectus was filed with the Commission and at the Closing Time Date referred to in Section 5, the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto)) and, and when taken together with the Prospectus, any Blue Sky Application (if applicable) or any Sales Information authorized for use by any of the Primary Parties for use in connection with the Offerings Offering, will 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; provided, however, that the representations and warranties in this Section 6(b) shall not apply to statements or omissions made in reliance upon and in conformity with written information furnished to the Primary Parties by the Agent expressly regarding the Agent for use under the captions “MARKET FOR THE COMMON STOCK” and caption “The CONVERSION Conversion and Offering – Marketing and Underwriting ArrangementsPlan of Distribution; Selling Agent Compensation” or written statements or omissions from any Blue Sky Application sales information or any Sales Informationinformation filed pursuant to state securities or blue sky laws or regulations regarding the Agent.
(c) At the time of filing the Registration Statement and at the date hereof, the Holding Company was not, and is not, an ineligible issuer, as defined in Rule 405 of the 1933 Act (“Rule 405”). At the time of the filing of the Registration Statement and at the time of the use of any issuer free writing prospectus, as defined in Rule 433(h)) of the 1933 Act, the Holding Company met the conditions required by Rules 164 and 433 of the 1933 Act for the use of a free writing prospectus. If required to be filed, the Holding Company has filed any issuer free writing prospectus related to the offered Offer Shares at the time it is required to be filed under Rule 433 of the 1933 Act and, if not required to be filed, will retain such free writing prospectus in the Holding Company’s records pursuant to Rule 433(g) of the 1933 Act and if any issuer free writing prospectus is used after the date hereof in connection with the offering of the Shares the Holding Company will file or retain such free writing prospectus as required by Rule 433433 of the 1933 Act.
(d) As of the Applicable Time (as hereinafter defined)Time, neither (i) the Issuer-Represented General Free Writing Prospectus(es) issued at or prior to the Applicable Time and the Statutory Prospectus, all considered together (collectively, the “General Disclosure Package”), nor (ii) any individual Issuer-Represented Limited-Use Free Writing Prospectus, when considered together with the General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from any Prospectus included in the Registration Statement relating to the offered Offer Shares or any Issuer-Represented Free Writing Prospectus based upon and in conformity with written information furnished to the Primary Parties Holding Company by the Agent specifically for use therein. As used in this paragraph and elsewhere in this Agreement:
Appears in 1 contract
Representations and Warranties of the Primary Parties. The Primary Parties jointly and severally represent and warrant to the Agent that, except as disclosed in the Prospectus:
(a) The Holding Company and LMIC have and, as Each of the Closing Time, will have Primary Parties has all such power, authority, authorizations, approvals and orders as may be required to enter into this Agreement, and, as of the Closing Date, each of the Primary Parties will have all such power, authority, authorizations, approvals and orders as may be required to carry out the provisions and conditions hereof and to issue and sell the Shares to be sold by the Company as provided herein and as described in the Prospectus. Subject to the receipt of member and regulatory approval, the The consummation of the Conversion and the ReorganizationConversion, the execution, delivery and performance of this Agreement and the Letter Agreement Agreement, and the consummation of the transactions contemplated herein contemplatedhave been, have been or will be as of the Closing Date, duly and validly authorized by all necessary corporate action on the part of each of the Holding Company and LMICPrimary Parties. This Agreement has been validly executed and delivered by each of the Holding Company and LMICPrimary Parties, and is a valid, legal and binding obligation of each of the Holding Company and LMICPrimary Parties, in each case enforceable in accordance with its terms, except as the legality, validity, binding nature and enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium, reorganization, conservatorship, receivership or other similar laws relating to or affecting the enforcement of creditors’ rights generally; , or the rights of creditors of insured financial institutions and their holding companies, (ii) general equity principles regardless of whether such enforceability is considered in a proceeding in equity or at law; , and (iii) the extent, if any, that the provisions of Sections 11 Section 12 or 12 Section 13 hereof may be unenforceable as against public policy.
(b) The Registration Statement was declared effective by the Commission on July 13, 20082023, and no stop order has been issued with respect thereto and no proceedings therefore related thereto have been initiated or, to the best knowledge of the Primary Parties, threatened by the Commission. At the time the Registration Statement (Statement, including the Prospectus contained therein) therein (including any amendment or supplement thereto), became effective, the Registration Statement (including the Prospectus contained therein) complied as to form in all material respects with the 1933 Act and the regulations promulgated thereunder 1933 Act Regulations, and the Registration Statement (including and the Prospectus contained therein) did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. At the time any Rule 424(b) or (c) Prospectus was is filed with the Commission and at the Closing Time referred to in Section 5Date, the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto)) and, and when taken together with the Prospectus, any Blue Sky Application or any Sales Information (as such terms are defined in Section 12 hereof) authorized by any of the Primary Parties for use in connection with the Offerings Offering, will 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; provided, however, that the representations and warranties in this Section 6(b) shall not apply to statements or omissions made in reliance upon and in conformity with written information furnished to the Primary Parties by the Agent expressly regarding the Agent or its counsel for use in the Prospectus under the captions “MARKET FOR THE COMMON STOCK” and caption “The CONVERSION – Marketing Conversion and Underwriting Arrangements” Stock Offering—Plan of Distribution; Selling Agent and Underwriter Compensation.”
(c) Any statistical and market related data contained in any Permitted Free Writing Prospectus (as hereinafter defined), the Prospectus and the Registration Statement are based on or written statements or omissions derived from any Blue Sky Application sources which the Primary Parties believe were reliable and accurate at the time they were filed with the SEC. No forward-looking statement (within the meaning of Section 27A of the 1933 Act and Section 21E of the Securities Exchange Act of 1934, as amended (the “1934 Act”)) contained in the Registration Statement, the Prospectus, or any Sales InformationPermitted Free Writing Prospectus (taken together with the Registration Statement and the Prospectus, the “General Disclosure Package”) has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith.
(cd) None of the Primary Parties has directly or indirectly distributed or otherwise used, and will not, without the prior consent of the Agent (which consent shall not be unreasonably withheld, conditioned or delayed), directly or indirectly distribute or otherwise use, any “free writing prospectus” (as defined in Rule 405 of the 1933 Act Regulations) or other offering material (including, without limitation, content on any Primary Party’s website that may be deemed to be a prospectus, free writing prospectus or other offering material) in connection with the Offering and the sale of the Shares, except for any Permitted Free Writing Prospectus (as defined herein).
(e) At the time of filing the Registration Statement and at the date hereof, the Holding Company was not, and is not, an ineligible issuer, issuer (as defined in Rule 405405 of the 1933 Act Regulations). At the time of the filing of the Registration Statement and at the time of the use of any issuer free writing prospectus, prospectus (as defined in Rule 433(h) of the 1933 Act Regulations), the Holding Company met the conditions required by Rules 164 and 433 of the 1933 Act Regulations for the use of a free writing prospectus. If required to be filed, the Holding Company has filed any issuer free writing prospectus related to the offered Shares at the time it is required to be filed under Rule 433 of the 1933 Act Regulations and, if not required to be filed, will retain such free writing prospectus in the Holding Company’s records pursuant to Rule 433(g) of the 1933 Act Regulations and if any issuer free writing prospectus is used after the date hereof in connection with the offering of the Shares the Holding Company will file or retain such free writing prospectus as required by Rule 433433 of the 1933 Act Regulations.
(df) As The Bank and the Company have filed the Applications with the Federal Reserve, the FDIC and the Department and the Applications are accurate and complete in all material respects. The Company and the Bank have received written notice from the Federal Reserve, the FDIC and the Department, as applicable, of their approvals or non-objections, as applicable of each of the Applicable Time Applications, such approvals or non-objections remain in full force and effect and no order has been issued by the Federal Reserve, the FDIC or the Department suspending or revoking such approval or non-objections and no proceedings therefor have been initiated or, to the knowledge of the Primary Parties, threatened by the Federal Reserve, the FDIC or the Department or any other applicable regulator. To the knowledge of the Primary Parties, no person has sought to obtain review of the final action of the Federal Reserve, the FDIC or the Department in approving any of the Applications pursuant to applicable statutes or regulations. At the date of such approvals or non-objections and as of the Closing Date, the Conversion Applications complied and will comply in all material respects with the applicable provisions of the Conversion Regulations.
(as hereinafter defined)g) No order has been issued by the Commission or any state securities administrator preventing or suspending the use of the Prospectus or any supplemental sales literature authorized by the Primary Parties for use in connection with the Offering, neither and no action by or before any such government entity to revoke any approval, authorization or order of effectiveness related to the Conversion is pending or, to the knowledge of the Primary Parties, threatened.
(h) The Plan has been approved by the Board of Directors of each of the Primary Parties and, prior to the Closing Date will be approved by the Voting Depositors of the Bank; at the Closing Date, the offer and sale of the Shares will have been conducted in all material respects in accordance with the Plan, and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed by the Federal Reserve, the Commission or any other regulatory authority, other than those which the regulatory authority permits to be completed after the Conversion, and in the manner described in the Prospectus.
(i) RP Financial, LC., which prepared the Issuer-Represented General Free Writing Prospectus(esAppraisal, has advised the Primary Parties in writing that it is independent with respect to each of the Primary Parties within the meaning of applicable banking regulations, and the Primary Parties believe RP Financial, LC. to be expert in the valuation and appraisal of savings institutions, and the Primary Parties believe that RP Financial, LC. has prepared the Appraisal information set forth in the Prospectus in accordance with the requirements of any applicable banking regulations.
(j) issued at or prior ▇▇▇▇▇ ▇▇▇▇▇ US, LLP, which certified the audited financial statements of both the Bank and Regal Bancorp filed as part of the Registration Statement, has advised the Primary Parties and Regal Parties, respectively, in writing that it is an independent certified public accountant within the meaning of the Code of Ethics of the American Institute of Certified Public Accountants, the applicable rules of the Public Company Accounting Oversight Board (United States) (“PCAOB”) and the SEC, it is registered with the PCAOB and is, with respect to each of the Primary Parties and the Regal Parties, and each subsidiary thereof, to the Applicable Time extent required, an independent certified public accountant as required by the 1933 Act and the Statutory 1933 Act Regulations.
(k) The financial statements, schedules and notes related thereto that are included in the Prospectus fairly present in all material respects the financial condition, results of operations, equity and cash flows of the Bank, Regal Bancorp and Regal Bank at the respective dates indicated and for the respective periods covered thereby and, to the extent required, comply as to form in all material respects with the applicable accounting requirements of Title 12 of the Code of Federal Regulations, Regulation S-X of the SEC and generally accepted accounting principles (“GAAP”) (including those requiring the recording of certain assets at their current market value). Such financial statements, schedules and notes related thereto have been prepared in accordance with GAAP consistently applied throughout the periods involved (except as noted in the notes to the financial statements), present fairly in all material respects the information required to be stated therein and are consistent with the most recent financial statements and other reports filed by the Bank and Regal Bank with the FDIC, and any other applicable regulatory authority, except that accounting principles employed in such regulatory filings conform to the requirements of such authorities and not necessarily to GAAP. The other financial, statistical and pro forma information and related notes included in the Prospectus present fairly the information shown therein on a basis consistent with the audited and unaudited financial statements of the Bank and Regal Bancorp included in the Prospectus, all considered together (collectivelyand as to the pro forma adjustments, the “General Disclosure Package”), nor adjustments made therein have been consistently applied on the basis described therein.
(iil) any individual Issuer-Represented Limited-Use Free Writing Prospectus, when considered together with Since the General Disclosure Package, included any untrue statement respective dates as of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from any Prospectus included information is given in the Registration Statement relating to and the offered Shares Prospectus, except as may otherwise be stated therein: (i) there has not been any material adverse change in the financial condition, results of operations, capital, assets, properties, business affairs or prospects of the Primary Parties, considered as one enterprise, or the Regal Parties, considered as one enterprise, whether or not arising in the ordinary course of business; (ii) there has not been any Issuermaterial increase in the long-Represented Free Writing Prospectus based upon and in conformity with written information furnished to term debt of any of the Primary Parties or the Regal Parties, or in the principal amount of the Bank’s or Regal Bancorp’s assets that are classified as substandard, doubtful or loss or in loans past due 90 days or more or real estate acquired by foreclosure, by deed-in-lieu of foreclosure or deemed in-substance foreclosure or any material decrease in equity capital or total assets of any of the Primary Parties or the Regal Parties, nor have the Primary Parties or the Regal Parties issued any securities (other than in connection with the incorporation of the Company) or incurred any liability or obligation for borrowings other than in the ordinary course of business or have not been disclosed in the Prospectus; (iii) there have not been any material transactions entered into by the Agent specifically for use thereinPrimary Parties or the Regal Parties that have not been disclosed in the Prospectus; (iv) there has not been any material adverse change in the aggregate dollar amount of the Bank’s or Regal Bank’s deposits or its consolidated net worth other than as disclosed in the Prospectus; (v) there has been no material adverse change in the Primary Parties’ relationship with their insurance carriers, including, without limitation, cancellation or other termination of the Primary Parties or the Regal Parties fidelity bond or any other type of insurance coverage; (vi) there has been no material change in executive management of any of the Primary Parties or the Regal Parties; (vii) none of the Primary Parties or the Regal Parties has sustained any material loss or interference with its respective business or properties from fire, flood, windstorm, earthquake, accident or other calamity, whether or not covered by insurance; (viii) none of the Primary Parties is in default in the payment of principal or interest on any outstanding debt obligations; (ix) the capitalization, liabilities, assets, properties and business of the Primary Parties and the Regal Parties conform in all material respects to the descriptions thereof contained in the Prospectus; (x) none of the Primary Parties or the Regal Parties has any material contingent or other liabilities, except as set forth in the Prospectus; and (xi) there has been no dividend or distribution of any kind declared, paid or made by the Primary Parties that has not been disclosed in the Prospectus.
(m) At the Closing Date, the Company will be a stock corporation duly organized and validly existing as a corporation under the laws of the State of Maryland, with corporate power and authority to own its properties and to conduct its business, as described in the Prospectus, and will be qualified to transact business and will be in good standing in the State of New Jersey and in each jurisdiction in which the conduct of business requires such qualification, unless the failure to qualify in one or more of such jurisdictions would not have a Material Adverse Effect (as defined below). As used in this paragraph and elsewhere in For purposes of this Agreement:, “Material Adverse Effect” means a material adverse effect on the conduct of the business, financial condition, results of operations, capital, properties, business affairs or prospects of the Primary Parties or the Regal Parties, as applicable, taken as a whole. On the Closing Date, the Company will have obtained all licenses, permits and other governmental authorizations then required for the conduct of its business, except those that individually or in the aggregate would not be reasonably expected to have a Material Adverse Effect; and as of the Closing Date, all such licenses, permits and governmental authorizations will be in full force and effect, and the Company will be in compliance therewith in all material respects, and the Company will be in compliance in all material respects with all laws, rules, regulations and orders applicable to the operation of its business. At the Closing Date, the Company will not own equity securities or any equity interest in any other business enterprise except the Bank.
Appears in 1 contract
Sources: Agency Agreement (SR Bancorp, Inc.)
Representations and Warranties of the Primary Parties. The Primary ----------------------------------------------------- Parties jointly and severally represent and warrant to the Agent that, except as disclosed in the Prospectus:
(a) The Bank, the MHC and the Holding Company and LMIC have and, as of the Closing Time, will have all such power, authority, authorizations, approvals and orders as may be required to enter into this Agreement, to carry out the provisions and conditions hereof and to issue and sell the Shares as provided herein and as described in the Prospectus, subject to the various limitations and required approvals described therein. Subject to the receipt of member and regulatory approval, the consummation of the Conversion and the ReorganizationOffering, the execution, delivery and performance of this Agreement and the Letter Agreement and the consummation of the transactions herein contemplated, contemplated have been duly and validly authorized by all necessary corporate action on the part of the Bank, the MHC and the Holding Company and LMICas of the Closing Date. This Agreement has been validly executed and delivered by the Holding Company Company, the MHC and LMICthe Bank, and is a valid, legal and binding obligation of the Holding Company Company, the MHC and LMIC, the Bank enforceable in accordance with its terms, except as the legality, validity, binding nature and enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium, conservatorship, receivership or other similar laws relating to or affecting the enforcement of creditors’ rights generally; (ii) general equity principles regardless of whether such enforceability is considered in a proceeding in equity or at law; and (iii) the extent, if any, that the provisions of Sections 10 and 11 or 12 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 savings institutions insured by the FDIC (including the laws relating to the rights of the contracting parties to equitable remedies).
(b) The Plan has been approved by the OTS.
(c) The Registration Statement was declared effective by the Commission on February 9, 2008, 2007; and no stop order has been issued with respect thereto and no proceedings therefore have been initiated or, to the best knowledge of the Primary Parties, threatened by the Commission. At the time the Registration Statement (Statement, including the Prospectus contained therein) therein (including any amendment or supplement thereto), became effective, the Registration Statement (including the Prospectus contained therein) complied as to form in all material respects with the 1933 Act and the regulations promulgated thereunder and the Registration Statement (Statement, including the Prospectus contained thereintherein (including any amendment or supplement thereto), any Blue Sky Application or any Sales Information (as such terms are defined in Section 10 hereof) authorized by the Primary Parties for use in connection with the Offering did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. At , and at the time any Rule 424(b) or (c) Prospectus was filed with the Commission and at the Closing Time Date referred to in Section 5, the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto), and any Blue Sky Application or any Sales Information authorized by the Primary Parties for use in connection with the Offerings will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties in this Section 6(b6(c) shall not apply to statements or omissions made in reliance upon and in conformity with written information furnished to the Primary Parties by the Agent expressly regarding the Agent for use under the captions “MARKET FOR THE COMMON STOCK” "Market for the Common Stock" and “"The CONVERSION – Stock Offering--Marketing and Underwriting Arrangements” " or written statements or omissions from any Blue Sky Application sales information or any Sales Informationinformation filed pursuant to state securities or blue sky laws or regulations regarding Agent.
(cd) At the time of filing the Registration Statement relating to the Offering and at the date hereof, the Holding Company was not, and is not, an ineligible issuer, as defined in Rule 405. At the time of the filing of the Registration Statement and at the time of the use of any issuer free writing prospectus, as defined in Rule 433(h), the Holding Company met the conditions required by Rules 164 and 433 for the use of a free writing prospectus. If required to be filed, the Holding Company has filed any issuer free writing prospectus related to the offered Shares at the time it is required to be filed under Rule 433 and, if not required to be filed, will retain such free writing prospectus in the Holding Company’s 's records pursuant to Rule 433(g) and if any issuer free writing prospectus is used after the date hereof in connection with the offering of the Shares the Holding Company will file or retain such free writing prospectus as required by Rule 433.
(de) As of the Applicable Time (as hereinafter defined)Time, neither (i) the Issuer-Represented General Free Writing Prospectus(es) issued at or prior to the Applicable Time and the Statutory Prospectus, all considered together (collectively, the “"General Disclosure Package”"), nor (ii) any individual Issuer-Represented Limited-Use Free Writing Prospectus, when considered together with the General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from any Prospectus included in the Registration Statement relating to the offered Shares or any Issuer-Represented Free Writing Prospectus based upon and in conformity with written information furnished to the Primary Parties Holding Company by the Agent specifically for use therein. As used in this paragraph and elsewhere in this Agreement:
Appears in 1 contract
Representations and Warranties of the Primary Parties. The Primary Parties jointly and severally represent and warrant to the Agent that, except as disclosed in the Prospectus:
(a) The Holding Company and LMIC have Bank has and, as of the Closing TimeDate, Company will have all such power, authority, authorizations, approvals and orders as may be required to enter into this Agreement, to carry out the provisions and conditions hereof and to issue and sell the Shares as provided herein and as described in the Prospectus, subject to the various limitations and required approvals described therein. Subject to the receipt of member and regulatory approval, the consummation of the Conversion and the Reorganization, the execution, delivery and performance of this Agreement and the Letter Agreement and the consummation of the transactions herein contemplated, contemplated have been duly and validly authorized by all necessary corporate action on the part of the Holding Company Bank and, as of the Closing Date, will have been duly and LMICvalidly authorized by all necessary corporate action on the part of the Company. This Agreement has been validly executed and delivered by the Holding Company and LMICthe Bank, and is a valid, legal and binding obligation of the Holding Company and LMICthe Bank, enforceable in accordance with its terms, except as the legality, validity, binding nature and enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium, conservatorship, receivership or other similar laws relating to or affecting the enforcement of creditors’ rights generally; (ii) general equity principles regardless of whether such enforceability is considered in a proceeding in equity or at law; and (iii) the extent, if any, that the provisions of Sections 10 and 11 or 12 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 savings institutions insured by the FDIC (including the laws relating to the rights of the contracting parties to equitable remedies).
(b) The Plan has been reviewed by the Division and the FDIC.
(c) The Registration Statement was declared effective by the Commission on , 20082006, and no stop order has been issued with respect thereto and no proceedings therefore have been initiated or, to the best knowledge of the Primary Parties, threatened by the Commission. At the time the Registration Statement (Statement, including the Prospectus contained therein) therein (including any amendment or supplement thereto), became effective, the Registration Statement (including the Prospectus contained therein) complied as to form in all material respects with the 1933 Act and the regulations promulgated thereunder and the Registration Statement (Statement, including the Prospectus contained thereintherein (including any amendment or supplement thereto), any Blue Sky Application or any Sales Information (as such terms are defined in Section 10 hereof) authorized by the Primary Parties for use in connection with the Offering did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. At , and at the time any Rule 424(b) or (c) Prospectus was filed with the Commission and at the Closing Time Date referred to in Section 5, the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto), and any Blue Sky Application or any Sales Information authorized by the Primary Parties for use in connection with the Offerings Offering will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties in this Section 6(b6(c) shall not apply to statements or omissions made in reliance upon and in conformity with written information furnished to the Primary Parties by the Agent expressly regarding the Agent for use under the captions “MARKET FOR THE COMMON STOCKMarket for the Common Stock” and “The CONVERSION Conversion – Plan of Distribution and Marketing and Underwriting Arrangements” or written statements or omissions from any Blue Sky Application or any Sales Information, as defined below.
(cd) At the time of filing the Registration Statement relating to the offering of the Shares and at the date hereof, the Holding Company was not, and is not, an ineligible issuer, as defined in Rule 405. At the time of the filing of the Registration Statement and at the time of the use of any issuer free writing prospectus, as defined in Rule 433(h), the Holding Company met the conditions required by Rules 164 and 433 for the use of a free writing prospectus. If required to be filed, the Holding Company has filed any issuer free writing prospectus related to the offered Shares at the time it is required to be filed under Rule 433 and, if not required to be filed, will retain such free writing prospectus in the Holding Company’s records pursuant to Rule 433(g) and if any issuer free writing prospectus is used after the date hereof in connection with the offering of the Shares the Holding Company will file or retain such free writing prospectus as required by Rule 433.
(de) As of the Applicable Time (as hereinafter defined)Time, neither (i) the Issuer-Represented General Free Writing Prospectus(es) issued at or prior to the Applicable Time and the Statutory Prospectus, all considered together (collectively, the “General Disclosure Package”), nor (ii) any individual Issuer-Represented Limited-Use Free Writing Prospectus, when considered together with the General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from any Prospectus included in the Registration Statement relating to the offered Shares or any Issuer-Represented Free Writing Prospectus based upon and in conformity with written information furnished to the Primary Parties Company by the Agent specifically for use therein. As used in this paragraph and elsewhere in this Agreement:
Appears in 1 contract
Representations and Warranties of the Primary Parties. The Primary Parties jointly and severally represent and warrant to the Agent that, except as disclosed in the Prospectus:
(a) The MHC and the Mid-Tier Holding Company and LMIC have and, as of the Closing Time, will have all such power, authority, authorizations, approvals and orders as may be required to enter into this Agreement, and, as of the Closing Date, the MHC and the Holding Company will have all such power, authority, authorizations, approvals and orders as may be required to carry out the provisions and conditions hereof and to issue and sell the Shares as provided herein and as described in the Prospectus. Subject to the receipt of member and regulatory approval, the The consummation of the Conversion and the ReorganizationConversion, the execution, delivery and performance of this Agreement and the Letter Agreement and the consummation of the transactions contemplated herein contemplated, have been duly and validly authorized by all necessary corporate action on the part of the MHC and the Holding Company and LMIC. This Agreement has been validly executed and delivered by the Holding Company and LMICPrimary Parties, and is a valid, legal and binding obligation of the Holding Company and LMICPrimary Parties, in each case enforceable in accordance with its terms, except as the legality, validity, binding nature and enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium, reorganization, conservatorship, receivership or other similar laws relating to or affecting the enforcement of creditors’ ' rights generally; , (ii) general equity principles regardless of whether such enforceability is considered in a proceeding in equity or at law; , and (iii) the extent, if any, that the provisions of Sections 11 or 12 hereof may be unenforceable as against public policy.
(b) The Registration Statement was declared effective by the Commission on ___________, 2008, and no 2001. No stop order has been issued with respect thereto and no proceedings therefore have been initiated or, to the Prospectus. To the best knowledge of the Primary Parties, no proceedings related to the Prospectus have been initiated or threatened by the Commission. At the time the Registration Statement (Statement, including the Prospectus contained therein) therein (including any amendment or supplement thereto), became effective, the Registration Statement (including the Prospectus contained therein) complied as to form in all material respects with the 1933 Act and the regulations promulgated thereunder and the thereunder. The Registration Statement (Statement, including the Prospectus contained thereintherein (including any amendment or supplement thereto) at the time such Registration Statement became effective, did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. At , and at the time any Rule 424(b) or (c) Prospectus was filed with the Commission and at the Closing Time Date referred to in Section 5, the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto)) and, and when taken together with the Prospectus, any Blue Sky Application or any Sales Information authorized for use by any of the Primary Parties for use in connection with the Offerings Offerings, will 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; provided, however, that the representations and warranties in this Section 6(b) shall not apply to statements or omissions made in reliance upon and in conformity with written information furnished to the Primary Parties by the Agent expressly regarding the Agent for use under the captions “MARKET FOR THE COMMON STOCK” "Market for the Common Stock", "The Conversion and “the Offering - Marketing Arrangements" and "The CONVERSION – Marketing Conversion and Underwriting Arrangements” the Offering - Direct Community Offering and Syndicated Community Offering" or with written statements or omissions from any Blue Sky Application Sales Information or any Sales Informationinformation filed pursuant to state securities or blue sky laws or regulations regarding the Agent.
(c) At The Conversion Application has been approved by the time OTS. The Conversion Application did, and will, as of filing the Registration Statement Closing Date comply as to form in all material respects with the Conversion Regulations and any other applicable rules and regulations of the OTS.
(d) No order has been issued by the Commission preventing or suspending the use of the Prospectus and, except as disclosed in Schedule 6(d), no action by or before any such government entity to revoke any approval, authorization or order of effectiveness related to the Conversion is, to the best knowledge of the Primary Parties, pending or threatened.
(e) The Plan has been duly adopted by the Board of the MHC. To the best knowledge of the Primary Parties, except as disclosed in Schedule 6(d), no person has, or at the date hereofClosing Date will have, sought to obtain review of the final action of the OTS in approving the Plan or the Conversion Application or the Holding Company was notApplication, and is not, an ineligible issuer, as defined in Rule 405pursuant to the HOLA or any other statute or regulation.
(f) The Holding Company has filed the Holding Company Application with the OTS. At the time As of the filing Closing Date the OTS will have approved of the Holding Company's becoming a unitary savings and loan holding company with respect to the Bank.
(g) RP Financial, LC, which prepared the appraisal of the aggregate pro forma market value of the Common Stock on which the Offerings were based (the "Appraisal"), has advised the Primary Parties in writing that it is independent with respect to each of the Primary Parties.
(h) Deloitte & Touche, LLP, which certified the financial statements filed as part of the Registration Statement and at the time Conversion Application, has advised the Primary Parties that it is an independent certified public accountant within the meaning of the use Code of any issuer free writing prospectusEthics of the AICPA, as defined in Rule 433(h)and Deloitte & Touche, LLP is, with respect to the Company, the Holding Company met the conditions required by Rules 164 Bank and 433 for the use of a free writing prospectus. If required to be filed, the Holding Company has filed any issuer free writing prospectus related to the offered Shares at the time it is required to be filed under Rule 433 and, if not required to be filed, will retain such free writing prospectus in the Holding Company’s records pursuant to Rule 433(g) and if any issuer free writing prospectus is used after the date hereof in connection with the offering each subsidiary of the Shares the Holding Company will file or retain such free writing prospectus Bank, independent certified public accountants as required by Rule 433the 1933 Act and the 1933 Act Regulations.
(d) As of the Applicable Time (as hereinafter defined), neither (i) the Issuer-Represented General Free Writing Prospectus(es) issued at or prior to the Applicable Time The financial statements and the Statutory Prospectus, all considered together (collectively, the “General Disclosure Package”), nor (ii) any individual Issuer-Represented Limited-Use Free Writing Prospectus, when considered together with the General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under notes thereto which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from any Prospectus are included in the Registration Statement relating and which are a part of the Prospectus present fairly in all material respects the financial condition and retained earnings of the Bank as of the dates indicated and the results of operations and cash flows for the periods specified. The financial statements comply in all material respects with the applicable accounting requirements of Title 12 of the Code of Federal Regulations, Regulation S-X of the Commission and generally accepted accounting principles ("GAAP") applied on a consistent basis during the periods presented, except as otherwise noted therein, and present fairly in all material respects the information required to be stated therein. The other financial, statistical and pro forma information and related notes included in the Prospectus present fairly the information shown therein on a basis consistent with the audited and unaudited financial statements included in the Prospectus, and as to the offered Shares pro forma adjustments, the adjustments made therein have been consistently applied on the basis described therein.
(j) Since the respective dates as of which information is given in the Registration Statement, including the Prospectus; (i) there has not been any material adverse change in the financial condition or in the earnings, capital, properties or business affairs of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; (ii) there have not been any material transactions entered into by any of the Primary Parties, other than those in the ordinary course of business; and (iii) the capitalization, liabilities, assets, properties and business of the Primary Parties conform in all material respects to the descriptions thereof contained in the Prospectus and, none of the Primary Parties has any material liabilities of any kind, contingent or otherwise, except as disclosed in the Registration Statement or the Prospectus.
(k) As of the Closing Date, the Holding Company will be a stock corporation duly organized and in good standing under the laws of the State of Delaware, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus, and will be qualified to transact business and in good standing in Delaware and in each jurisdiction in which the conduct of business requires such qualification, unless the failure to qualify in one or more of such jurisdictions would not have a material adverse effect on the financial condition, earnings, capital, properties or business affairs of the Primary Parties taken as a whole. As of the Closing Date, the Holding Company will have obtained all licenses, permits and other governmental authorizations required for the conduct of its business, except those that individually or in the aggregate would not materially adversely affect the financial condition, earnings, or business of the Primary Parties taken as a whole (a "Material Adverse Effect"); and as of the Closing Date, all such licenses, permits and governmental authorizations will be in full force and effect, and the Holding Company will be in compliance therewith in all material respects.
(l) The Holding Company does not, and as of the Closing Date, will not own any equity securities or any Issuerequity interest in any business enterprise except as described in the Prospectus.
(m) The Bank is a duly organized and validly existing federally-Represented Free Writing chartered savings bank in stock form, duly authorized to conduct its business as described in the Prospectus; the activities of the Bank are permitted by the rules, regulations and practices of the OTS; the Bank has applied for and received the approval of the OTS to conduct a trust business; the Bank has obtained all licenses, permits and other governmental authorizations currently required for the conduct of its business, except those that individually or in the aggregate would not have a Material Adverse Effect; all such licenses, permits and other governmental authorizations are in full force and effect and the Bank is in good standing under the laws of the United States and is duly qualified as a foreign corporation to transact business in each jurisdiction in which failure to so qualify would have a Material Adverse Effect; all of the issued and outstanding capital stock of the Bank after the Conversion will be duly and validly issued and fully paid and nonassessable; and the Holding Company will directly own all of such capital stock free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction. The Bank does not own equity securities or any equity interest in any other business enterprise except as otherwise described in the Prospectus based upon or as are immaterial in amount and are not required to be described in conformity the Prospectus.
(n) The deposit accounts of the Bank are insured by the FDIC up to applicable limits. Upon consummation of the Conversion, the Bank will establish a liquidation account for the benefit of the Bank's depositors, in accordance with written information furnished the Plan and the requirements of applicable Conversion Regulations.
(o) As of the Closing Date, the Bank will be a wholly owned subsidiary of the Holding Company.
(p) Upon consummation of the Conversion, the authorized, issued and outstanding equity capital of the Holding Company will be within the range set forth in the Prospectus under the caption "Capitalization" and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date; and the shares of Common Stock to be subscribed for in the Offering have been duly and validly authorized for issuance and, when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan and the Prospectus, will be duly and validly issued and fully paid and nonassessable; the issuance of the Shares is not subject to preemptive rights, except for the Subscription Rights granted pursuant to the Plan; and the terms and provisions of the shares of Common Stock will conform in all material respects to the description thereof contained in the Prospectus. Upon issuance of the Shares, good title to the Shares will be transferred from the Holding Company to the purchasers of Shares against payment therefor in the Offering as set forth in the Plan and the Prospectus.
(q) The Primary Parties are not in violation of their respective articles of incorporation or charter or their respective bylaws, or in material default in the performance or observance of any obligation, agreement, covenant, or condition contained in any contract, lease, loan agreement, indenture or other instrument to which they are a party or by which they, or any of their respective property, may be bound which would result in a Material Adverse Effect. The consummation of the transactions herein contemplated will not (i) conflict with or constitute a breach of, or default under, the Certificate of Incorporation, charter or bylaws of any of the Primary Parties, or materially conflict with or constitute a material breach of, or default under, any material contract, lease or other instrument to which any of the Primary Parties has a beneficial interest, or any applicable law, rule, regulation or order that is material to the financial condition of the Bank; (ii) violate any authorization, approval, judgment, decree, order, statute, rule or regulation applicable to the Primary Parties except for such violations which would not have a material adverse effect on the financial condition and results of operations of the Bank; or (iii) result in the creation of any lien, charge or encumbrance upon any property of the Primary Parties, except for such liens, changes or encumbrances that would not individually or in the aggregate have a Material Adverse Effect.
(r) No material default exists, and no event has occurred which with notice or lapse of time, or both, would constitute a material default on the part of any of the Primary Parties, in the due performance and observance of any term, covenant or condition of any indenture, mortgage, deed of trust, note, bank loan or credit agreement or any other material instrument or agreement to which any of the Primary Parties is a party or by which any of their property is bound or affected in any respect which, in any such case, is material to the Agent specifically for use therein. As used Primary Parties taken as a whole, and such agreements are in this paragraph full force and elsewhere effect; and no other party to any such agreements has instituted or, to the best knowledge of any of the Primary Parties, threatened any action or proceeding wherein any of the Primary Parties is alleged to be in default thereunder under circumstances where such action or proceeding, if determined adversely to any of the Primary Parties, would have a Material Adverse Effect.
(s) The Primary Parties have good and marketable title to all assets which are material to the businesses of the Primary Parties, free and clear of all liens, charges, encumbrances, restrictions or other claims, except such as are described in the Prospectus or which do not have a Material Adverse Effect; and all of the leases and subleases which are material to the businesses of the Primary Parties, as described in the Registration Statement or Prospectus, are in full force and effect.
(t) The Primary Parties are not in material violation of any directive from the OTS, the FDIC, or any other agency to make any material change in the method of conducting their respective businesses; the Primary Parties have conducted and are conducting their respective businesses so as to comply in all respects with all applicable statutes and regulations (including, without limitation, regulations, decisions, directives and orders of the OTS, the Commission and the FDIC), except where the failure to so comply would not reasonably be expected to result in a Material Adverse Effect, and there is no charge, investigation, action, suit or proceeding before or by any court, regulatory authority or governmental agency or body pending or, to the best knowledge of any of the Primary Parties, threatened, which would reasonably be expected to materially and adversely affect the Conversion, the performance of this Agreement:, or the consummation of the transactions contemplated in the Plan as described in the Registration Statement, or which would reasonably be expected to result in a Material Adverse Effect.
(u) Prior to
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Representations and Warranties of the Primary Parties. The Primary Parties jointly and severally represent and warrant to the Agent that, except as disclosed in the Prospectus:
(a) The MHC, the Mid-Tier Holding Company, the Holding Company and LMIC have and, as of the Closing Time, will Bank have all such power, authority, authorizations, approvals and orders as may be required to enter into this Agreement, and, as of the Closing Date, the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank will have all such power, authority, authorizations, approvals and orders as may be required to carry out the provisions and conditions hereof and to issue and sell the Offer Shares and to issue the Exchange Shares as provided herein and as described in the Prospectus. Subject to the receipt of member and regulatory approval, the The consummation of the Conversion and the ReorganizationConversion, the execution, delivery and performance of this Agreement and the Letter Agreement and the consummation of the transactions contemplated herein contemplated, have been duly and validly authorized by all necessary corporate action on the part of the MHC, the Mid-Tier Holding Company, the Holding Company and LMICthe Bank. This Agreement has been validly executed and delivered by the Holding Company and LMICPrimary Parties, and is a valid, legal and binding obligation of the Holding Company and LMICPrimary Parties, in each case enforceable in accordance with its terms, except as the legality, validity, binding nature and enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium, conservatorship, receivership or other similar laws relating to or affecting the enforcement of creditors’ rights generally; (ii) general equity principles regardless of whether such enforceability is considered in a proceeding in equity or at law; and (iii) the extent, if any, that the provisions of Sections 11 or and 12 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 savings institutions insured by the FDIC (including the laws relating to the rights of the contracting parties to equitable remedies).
(b) The Registration Statement was declared effective by the Commission on _______, 2008, and no 2011. No stop order has been issued with respect thereto and no to the Registration Statement. No proceedings therefore related to the Registration Statement have been initiated or, to the best knowledge of the Primary Parties, threatened by the Commission. At the time the Registration Statement (Statement, including the Prospectus contained therein) therein (including any amendment or supplement thereto), became effective, the Registration Statement (including the Prospectus contained therein) complied as to form in all material respects with the 1933 Act and the regulations promulgated thereunder 1933 Act Regulations and the Registration Statement (Statement, including the Prospectus contained thereintherein (including any amendment or supplement thereto), any Blue Sky Application or any Sales Information (as such terms are defined in Section 11 hereof) authorized by the Primary Parties for use in connection with the Offering, did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. At the time any Rule 424(b) or (c) Prospectus was filed with the Commission and at the Closing Time Date referred to in Section 5, the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto)) and, and when taken together with the Prospectus, any Blue Sky Application (if applicable) or any Sales Information authorized for use by any of the Primary Parties for use in connection with the Offerings Offering, will 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; provided, however, that the representations and warranties in this Section 6(b) shall not apply to statements or omissions made in reliance upon and in conformity with written information furnished to the Primary Parties by the Agent expressly regarding the Agent for use under the captions “MARKET FOR THE COMMON STOCK” and caption “The CONVERSION Conversion and Offering – Marketing and Underwriting ArrangementsPlan of Distribution; Selling Agent Compensation” or written statements or omissions from any Blue Sky Application sales information or any Sales Informationinformation filed pursuant to state securities or blue sky laws or regulations regarding the Agent.
(c) At the time of filing the Registration Statement and at the date hereof, the Holding Company was not, and is not, an ineligible issuer, as defined in Rule 405 of the 1933 Act (“Rule 405”). At the time of the filing of the Registration Statement and at the time of the use of any issuer free writing prospectus, as defined in Rule 433(h)) of the 1933 Act, the Holding Company met the conditions required by Rules 164 and 433 of the 1933 Act for the use of a free writing prospectus. If required to be filed, the Holding Company has filed any issuer free writing prospectus related to the offered Offer Shares at the time it is required to be filed under Rule 433 of the 1933 Act and, if not required to be filed, will retain such free writing prospectus in the Holding Company’s records pursuant to Rule 433(g) of the 1933 Act and if any issuer free writing prospectus is used after the date hereof in connection with the offering of the Shares the Holding Company will file or retain such free writing prospectus as required by Rule 433433 of the 1933 Act.
(d) As of the Applicable Time (as hereinafter defined)Time, neither (i) the Issuer-Represented General Free Writing Prospectus(es) issued at or prior to the Applicable Time and the Statutory Prospectus, all considered together (collectively, the “General Disclosure Package”), nor (ii) any individual Issuer-Represented Limited-Use Free Writing Prospectus, when considered together with the General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from any Prospectus included in the Registration Statement relating to the offered Offer Shares or any Issuer-Represented Free Writing Prospectus based upon and in conformity with written information furnished to the Primary Parties Holding Company by the Agent specifically for use therein. As used in this paragraph and elsewhere in this Agreement:
Appears in 1 contract
Representations and Warranties of the Primary Parties. The Primary Parties jointly and severally represent and warrant to the Agent Representative that, except as disclosed in the Prospectus:
(a) The MHC, the Mid-Tier Holding Company, the Holding Company and LMIC have and, as of the Closing Time, will Bank have all such power, authority, authorizations, approvals and orders as may be required to enter into this Agreement, and, as of the Closing Date, the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank will have all such power, authority, authorizations, approvals and orders as may be required to carry out the provisions and conditions hereof and to issue and sell the Offer Shares and to issue the Exchange Shares as provided herein and as described in the Prospectus. Subject to the receipt of member and regulatory approval, the The consummation of the Conversion and the ReorganizationConversion, the execution, delivery and performance of this Agreement and the Letter Agreement and the consummation of the transactions contemplated herein contemplated, have been duly and validly authorized by all necessary corporate action on the part of the MHC, the Mid-Tier Holding Company, the Holding Company and LMICthe Bank. This Agreement has been validly executed and delivered by the Holding Company and LMICPrimary Parties, and is a valid, legal and binding obligation of the Holding Company and LMICPrimary Parties, in each case enforceable in accordance with its terms, except as the legality, validity, binding nature and enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium, conservatorship, receivership or other similar laws relating to or affecting the enforcement of creditors’ rights generally; (ii) general equity principles regardless of whether such enforceability is considered in a proceeding in equity or at law; and (iii) the extent, if any, that the provisions of Sections 11 or and 12 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 savings institutions insured by the FDIC (including the laws relating to the rights of the contracting parties to equitable remedies).
(b) The Registration Statement was declared effective by the Commission on February 11, 2008, and no 2013. No stop order has been issued with respect thereto and no to the Registration Statement. No proceedings therefore related to the Registration Statement have been initiated or, to the best knowledge of the Primary Parties, threatened by the Commission. At the time the Registration Statement (Statement, including the Prospectus contained therein) therein (including any amendment or supplement thereto), became effective, the Registration Statement (including the Prospectus contained therein) complied as to form in all material respects with the 1933 Act and the regulations promulgated thereunder 1933 Act Regulations and the Registration Statement (Statement, including the Prospectus contained thereintherein (including any amendment or supplement thereto), any Blue Sky Application, if applicable or any Sales Information (as such terms are defined in Section 11 hereof) authorized by the Primary Parties for use in connection with the Offering, did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. At the time any Rule 424(b) or (c) Prospectus was filed with the Commission and at the Closing Time Date referred to in Section 5, the Registration Statement, including the Prospectus contained therein (including any amendment, post-effective amendment required by the Public Offering or supplement thereto)) and, and when taken together with the Prospectus, any Blue Sky Application (if applicable) or any Sales Information authorized for use by any of the Primary Parties for use in connection with the Offerings Offering, will 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; provided, however, that the representations and warranties in this Section 6(b) shall not apply to statements or omissions made in reliance upon and in conformity with written information furnished to the Primary Parties by the Agent Agents expressly regarding the Agent Agents for use under the captions “MARKET FOR THE COMMON STOCK” and caption “The CONVERSION – Marketing Conversion and Underwriting ArrangementsOffering - Plan of Distribution; Selling Agent and Underwriter Compensation” or written statements or omissions from any Blue Sky Application sales information or any Sales Informationinformation filed pursuant to state securities or blue sky laws or regulations regarding the Agents.
(c) At the time of filing the Registration Statement and at the date hereof, the Holding Company was not, and is not, an ineligible issuer, as defined in Rule 405 of the 1933 Act (“Rule 405”). At the time of the filing of the Registration Statement and at the time of the use of any issuer free writing prospectus, as defined in Rule 433(h)) of the 1933 Act, the Holding Company met the conditions required by Rules 164 and 433 of the 1933 Act for the use of a free writing prospectus. If required to be filed, the Holding Company has filed any issuer free writing prospectus related to the offered Offer Shares at the time it is required to be filed under Rule 433 of the 1933 Act and, if not required to be filed, will retain such free writing prospectus in the Holding Company’s 's records pursuant to Rule 433(g) of the 1933 Act and if any issuer free writing prospectus is used after the date hereof in connection with the offering of the Shares the Holding Company will file or retain such free writing prospectus as required by Rule 433433 of the 1933 Act.
(d) As of the Applicable Time (as hereinafter defined)Time, neither (i) the Issuer-Represented General Free Writing Prospectus(es) issued at or prior to the Applicable Time and the Statutory Prospectus, all considered together (collectively, the “General Disclosure Package”), nor (ii) any individual Issuer-Represented Limited-Use Free Writing Prospectus, when considered together with the General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from any Prospectus included in the Registration Statement relating to the offered Offer Shares or any Issuer-Represented Free Writing Prospectus based upon and in conformity with written information furnished to the Primary Parties Holding Company by the Agent Agents specifically for use therein. As used in this paragraph and elsewhere in this Agreement:
Appears in 1 contract
Representations and Warranties of the Primary Parties. The Primary Parties jointly and severally represent and warrant to the Agent that, except as disclosed in the Prospectus:
(a) The Holding Company and LMIC have and, as Each of the Closing Time, will have Primary Parties has all such power, authority, authorizations, approvals and orders as may be required to enter into this Agreement, and, as of the Closing Date, each of the Primary Parties will have all such power, authority, authorizations, approvals and orders as may be required to carry out the provisions and conditions hereof and to issue and sell the Shares as provided herein and as described in the Prospectus. Subject to the receipt of member and regulatory approval, the The consummation of the Conversion and the ReorganizationConversion, the execution, delivery and performance of this Agreement and the Letter Agreement and the consummation of the transactions contemplated herein contemplated, have been duly and validly authorized by all necessary corporate action on the part of the Holding Company Primary Parties and, as of the Closing Date, will have been duly and LMICvalidly authorized by all necessary corporate action on the part of each of the Primary Parties. This Agreement has been validly executed and delivered by the Holding Company and LMICPrimary Parties, and is a valid, legal and binding obligation of the Holding Company and LMICPrimary Parties, in each case enforceable in accordance with its terms, except as the legality, validity, binding nature and enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium, conservatorship, receivership or other similar laws relating to or affecting the enforcement of creditors’ rights generally; (ii) general equity principles regardless of whether such enforceability is considered in a proceeding in equity or at law; and (iii) the extent, if any, that the provisions of Sections 11 or and 12 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 savings institutions insured by the Federal Deposit Insurance Corporation (the “FDIC”) (including the laws relating to the rights of the contracting parties to equitable remedies).
(b) The Registration Statement was declared effective by the Commission on _______ _, 2008, and no 2012. No stop order has been issued with respect thereto and no to the Registration Statement. No proceedings therefore related to the Registration Statement have been initiated or, to the best knowledge of the Primary Parties, threatened by the Commission. At the time the Registration Statement (Statement, including the Prospectus contained therein) therein (including any amendment or supplement thereto), became effective, the Registration Statement (including the Prospectus contained therein) complied as to form in all material respects with the 1933 Act and the regulations promulgated thereunder 1933 Act Regulations and the Registration Statement (Statement, including the Prospectus contained thereintherein (including any amendment or supplement thereto), any Blue Sky Application or any Sales Information (as such terms are defined in Section 11 hereof) authorized by the Primary Parties for use in connection with the Offering, did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. At the time any Rule 424(b) or (c) Prospectus was filed with the Commission and at the Closing Time Date referred to in Section 5, the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto)) and, and when taken together with the Prospectus, any Blue Sky Application (if applicable) or any Sales Information (as defined below) authorized for use by any of the Primary Parties for use in connection with the Offerings Offering, will 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; provided, however, that the representations and warranties in this Section 6(b) shall not apply to statements or omissions made in reliance upon and in conformity with written information furnished to the Primary Parties by the Agent expressly regarding the Agent for use under the captions “MARKET FOR THE COMMON STOCK” and caption “The CONVERSION Conversion and Offering – Marketing and Underwriting ArrangementsDistribution; Compensation” or written statements or omissions from any Blue Sky Application sales information or any Sales Informationinformation filed pursuant to state securities or blue sky laws or regulations regarding the Agent.
(c) At the time of filing the Registration Statement and at the date hereof, the Holding Company was not, and is not, an ineligible issuer, as defined in Rule 405405 under the 1933 Act Regulations. At the time of the filing of the Registration Statement and at the time of the use of any issuer free writing prospectus, as defined in Rule 433(h)) under the 1933 Act Regulations, the Holding Company met the conditions required by Rules 164 and 433 under the 1933 Act Regulations for the use of a free writing prospectus. If required to be filed, the Holding Company has filed any issuer free writing prospectus related to the offered Shares at the time it is required to be filed under Rule 433 under the 1933 Act Regulations and, if not required to be filed, will retain such free writing prospectus in the Holding Company’s records pursuant to Rule 433(g) and if any issuer free writing prospectus is used after the date hereof in connection with the offering of the Shares Shares, the Holding Company will file or retain such free writing prospectus as required by Rule 433433 under the 1933 Act Regulations.
(d) As of the Applicable Time (as hereinafter defined)Time, neither (i) the Issuer-Represented General Free Writing Prospectus(es) issued at or prior to the Applicable Time and the Statutory Prospectus, all considered together (collectively, the “General Disclosure Package”), nor (ii) any individual Issuer-Represented Limited-Use Free Writing Prospectus, when considered together with the General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from any Prospectus included in the Registration Statement relating to the offered Shares or any Issuer-Represented Free Writing Prospectus based upon and in conformity with written information furnished to the Primary Parties Holding Company by the Agent specifically for use therein. As used in this paragraph and elsewhere in this Agreement:
Appears in 1 contract
Representations and Warranties of the Primary Parties. The Primary Parties jointly and severally represent and warrant to the Agent that, except as disclosed in the Prospectus:
(a) The MHC, the Holding Company and LMIC have and, as of the Closing Time, will Bank have all such power, authority, authorizations, approvals and orders as may be required to enter into this Agreement, and, as of the Closing Date, the MHC, the Holding Company and the Bank will have all such power, authority, authorizations, approvals and orders as may be required to carry out the provisions and conditions hereof and to issue and sell the Offer Shares as provided herein and as described in the Prospectus. Subject to the receipt of member and regulatory approval, the The consummation of the Conversion and the ReorganizationOffering, the execution, delivery and performance of this Agreement and the Letter Agreement and the consummation of the transactions contemplated herein contemplated, have been duly and validly authorized by all necessary corporate action on the part of the MHC, the Holding Company and LMICthe Bank. This Agreement has been validly executed and delivered by the Holding Company and LMICPrimary Parties, and is a valid, legal and binding obligation of the Holding Company and LMICPrimary Parties, in each case enforceable in accordance with its terms, except as the legality, validity, binding nature and enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium, conservatorship, receivership or other similar laws relating to or affecting the enforcement of creditors’ rights generally; (ii) general equity principles regardless of whether such enforceability is considered in a proceeding in equity or at law; and (iii) the extent, if any, that the provisions of Sections 11 or and 12 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 savings institutions insured by the FDIC (including the laws relating to the rights of the contracting parties to equitable remedies).
(b) The Registration Statement was declared effective by the Commission on _________________, 2008, and no 2010. No stop order has been issued with respect thereto and no to the Registration Statement. No proceedings therefore related to the Registration Statement have been initiated or, to the best knowledge of the Primary Parties, threatened by the Commission. At the time the Registration Statement (Statement, including the Prospectus contained therein) therein (including any amendment or supplement thereto), became effective, the Registration Statement (including the Prospectus contained therein) complied as to form in all material respects with the 1933 Act and the regulations promulgated thereunder 1933 Act Regulations and the Registration Statement (Statement, including the Prospectus contained thereintherein (including any amendment or supplement thereto), any Blue Sky Application or any Sales Information (as such terms are defined in Section 11 hereof) authorized by the Primary Parties for use in connection with the Offering, did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. At the time any Rule 424(b) or (c) Prospectus was filed with the Commission and at the Closing Time Date referred to in Section 5, the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto)) and, and when taken together with the Prospectus, any Blue Sky Application (if applicable) or any Sales Information (as defined below) authorized for use by any of the Primary Parties for use in connection with the Offerings Offering, will 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; provided, however, that the representations and warranties in this Section 6(b) shall not apply to statements or omissions made in reliance upon and in conformity with written information furnished to the Primary Parties by the Agent expressly regarding the Agent for use under the captions “MARKET FOR THE COMMON STOCK” and caption “The CONVERSION – Stock Offering - Marketing and Underwriting Arrangements” or written statements or omissions from any Blue Sky Application sales information or any Sales Informationinformation filed pursuant to state securities or blue sky laws or regulations regarding the Agent.
(c) At the time of filing the Registration Statement and at the date hereof, the Holding Company was not, and is not, an ineligible issuer, as defined in Rule 405. At the time of the filing of the Registration Statement and at the time of the use of any issuer free writing prospectus, as defined in Rule 433(h), the Holding Company met the conditions required by Rules 164 and 433 for the use of a free writing prospectus. If required to be filed, the Holding Company has filed any issuer free writing prospectus related to the offered Shares at the time it is required to be filed under Rule 433 and, if not required to be filed, will retain such free writing prospectus in the Holding Company’s records pursuant to Rule 433(g) and if any issuer free writing prospectus is used after the date hereof in connection with the offering of the Shares the Holding Company will file or retain such free writing prospectus as required by Rule 433.
(d) As of the Applicable Time (as hereinafter defined)Time, neither (i) the Issuer-Represented General Free Writing Prospectus(es) issued at or prior to the Applicable Time and the Statutory Prospectus, all considered together (collectively, the “General Disclosure Package”), nor (ii) any individual Issuer-Represented Limited-Use Free Writing Prospectus, when considered together with the General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from any Prospectus included in the Registration Statement relating to the offered Offer Shares or any Issuer-Represented Free Writing Prospectus based upon and in conformity with written information furnished to the Primary Parties Holding Company by the Agent specifically for use therein. As used in this paragraph and elsewhere in this Agreement:
Appears in 1 contract
Representations and Warranties of the Primary Parties. The Primary Parties jointly and severally represent and warrant to the Agent that, except as disclosed in the Prospectus:
(a) The Holding Bank and the Company have, and LMIC have and, as of the Closing TimeDate, the MHC will have have, all such power, authority, authorizations, approvals and orders as may be required to enter into this Agreement, to carry out the provisions and conditions hereof and to issue and sell the Shares as provided herein and as described in the Prospectus. Subject to the receipt of member and regulatory approval, the consummation of the Conversion and the Reorganization, the execution, delivery and performance of this Agreement and the Letter Agreement Agreement, and the consummation of the transactions herein contemplated, contemplated have been duly and validly authorized by all necessary corporate action on the part of the Holding Company Bank and, as of the Closing Date, will have been duly and LMICvalidly authorized by all necessary corporate action on the part of the MHC and the Company. This Agreement has been validly executed and delivered by each of the Holding Company and LMICPrimary Parties, and is a valid, valid legal and binding obligation of the Holding Bank, the Company and LMICthe MHC, in each case enforceable in accordance with its terms, except as the legality, validity, binding nature and enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium, conservatorship, receivership or other similar laws relating to or affecting the enforcement of creditors’ rights generally; (ii) general equity principles regardless of whether such enforceability is considered in a proceeding in equity or at law; and (iii) the extent, if any, that the provisions of Sections 10 and 11 or 12 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 savings institutions insured by the FDIC (including the laws relating to the rights of the contracting parties to equitable remedies).
(b) The Plan has been approved by the Department and the FDIC.
(c) The Registration Statement which was prepared and filed by the Company and the Bank with the Commission, and was declared effective by the Commission on , 2008, 2005; and no stop order has been issued with respect thereto and no proceedings therefore have been initiated or, or to the best knowledge of the Primary Parties, Parties threatened by the Commission. At the time the Registration Statement (Statement, including the Prospectus contained therein) therein (including any amendment or supplement thereto), became effective, the Registration Statement (including the Prospectus contained therein) complied as to form in all material respects with the 1933 Act and the regulations promulgated thereunder and the Registration Statement (Statement, including the Prospectus contained thereintherein (including any amendment or supplement thereto), any Blue Sky Application or any Sales Information (as such terms are defined in Section 10 hereof) authorized by the Primary Parties for use in connection with the Offering did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, therein not misleading. At , and at the time any Rule 424(b) or (c) Prospectus was is filed with the Commission and at the Closing Time Date referred to in Section 5, the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto), and any Blue Sky Application or any Sales Information authorized by the Primary Parties for use in connection with the Offerings Offering will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties in this Section 6(b6(c) shall not apply to statements or omissions made in reliance upon and in conformity with written information furnished to the Primary Parties by the Agent expressly regarding the Agent for use under the captions “MARKET FOR THE COMMON STOCKMarket for the Common Stock” and “The CONVERSION – Reorganization and Stock Offering—Marketing and Underwriting Arrangements,” or written statements or omissions from any Blue Sky Application Sales Information or any Sales Information.
(c) At the time of filing the Registration Statement and at the date hereof, the Holding Company was not, and is not, an ineligible issuer, as defined in Rule 405. At the time of the filing of the Registration Statement and at the time of the use of any issuer free writing prospectus, as defined in Rule 433(h), the Holding Company met the conditions required by Rules 164 and 433 for the use of a free writing prospectus. If required to be filed, the Holding Company has information filed any issuer free writing prospectus related to the offered Shares at the time it is required to be filed under Rule 433 and, if not required to be filed, will retain such free writing prospectus in the Holding Company’s records pursuant to Rule 433(g) and if any issuer free writing prospectus is used after the date hereof state securities or blue sky laws or regulations made in connection with the offering of the Shares the Holding Company will file or retain such free writing prospectus as required by Rule 433.
(d) As of the Applicable Time (as hereinafter defined), neither (i) the Issuer-Represented General Free Writing Prospectus(es) issued at or prior to the Applicable Time and the Statutory Prospectus, all considered together (collectively, the “General Disclosure Package”), nor (ii) any individual Issuer-Represented Limited-Use Free Writing Prospectus, when considered together with the General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from any Prospectus included in the Registration Statement relating to the offered Shares or any Issuer-Represented Free Writing Prospectus based reliance upon and in conformity with written information furnished to the Primary Parties by the Agent specifically expressly regarding the Agent.
(d) The Notice to Effect a Mutual Holding Company Reorganization, including the Prospectus and the Merger Applications, was approved by the Department on , 2005; the Proxy Statement of the Bank relating to the special meeting of the members of the Bank at which the Plan shall be considered for approval by the Bank’s eligible voting members (the “Proxy Statement”) and the Prospectus (including any amendment or supplement thereto) was authorized for use by the Department, and at all times subsequent thereto until the Closing Date, the Notice to Effect a Mutual Holding Company Reorganization, including the Prospectus, did and will comply as to form in all material respects with the Conversion Regulations and any other applicable rules and regulations of the Department (except as modified or waived in writing by the Department). At the time of the approval and at all times subsequent thereto until the Closing Date, the Notice to Effect a Mutual Holding Company Reorganization, including the Prospectus (including any amendment or supplement thereto), did not and does not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein. As used , in light of the circumstances under which they were made, not misleading; provided, however, that representations or warranties in this paragraph subsection (d) shall not apply to statements or omissions made in reliance upon and elsewhere in this Agreement:conformity with written information furnished to the Primary Parties by the Agent expressly regarding the Agent for use in the Prospectus contained in the Notice to Effect a Mutual Holding Company Reorganization under the captions “Market for the Common Stock” and “The Reorganization and Stock Offering—Marketing Arrangements” or written statements or omissions from any sales information or information filed pursuant to state securities or blue sky laws or regulations made in reliance upon and in conformity with written information furnished to the Primary Parties by the Agent expressly regarding the Agent.
(e) The Bank has filed with the FDIC the Bank’s Interagency Merger Application for the merger between the Bank and North Penn Interim Two, a Pennsylvania stock savings bank, under 12 USC ‘1828(c) to facilitate the Reorganization. The Interagency Merger Application is accurate and truthful in all material respects. At or prior to the Closing Date, the Bank shall receive a written notice from the FDIC of its approval of the merger, such approval will remain in full force and effect and no order will be issued by the FDIC suspending or revoking such approval and no proceedings therefore have been initiated or threatened by the FDIC. At the date of such approval, the Interagency Merger Application complied in all material respects with all applicable provisions and regulations.
(f) The Plan has been duly adopted by the Board of Trustees of the Bank and the Board of Directors of the Company. At the Closing Date, the Plan will have been adopted by the Board of Directors of the MHC and the Company and the Board of Trustees of the Bank and approved by the depositors of the Bank, and the offer and sale of the Shares will have been conducted in all material respects in accordance with the Plan, the Conversion Regulations, and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Reorganization imposed upon the Primary Parties by the Department, the FDIC, the FRB, the Commission, or any other regulatory authority and in the manner described in the Prospectus. No person has, or at the Closing Date will have, sought to obtain review of the final action of the Department, the FRB or the FDIC in approving the Plan, the Reorganization, the Applications, the Holding Company Application, or the Interagency Merger Application, or any related transaction or application in connection therewith. The Bank has adhered to all provisions contained in the Plan.
(g) The Company and the MHC have filed with the FRB the Holding Company Application for approval of its acquisition of the Bank under the BHCA, and the Holding Company Application is accurate and truthful in all material respects. The Company has received written notice from the FRB of their approval of the Holding Company Application and of the acquisition of the Bank; such approval remains in full force and effect and no order has been issued by the FRB suspending or revoking such approval and no proceedings therefore have been initiated or threatened by the FRB. At the date of such approval, the Holding Company Application complied in all material respects with the applicable provisions of the BHCA and the regulations promulgated thereunder.
(h) No order has been issued by the Department, the FDIC, the FRB, the Commission, or any state regulatory authority, preventing or suspending the use of the Prospectus and no action by or before any such government entity to revoke any approval, authorization or order of effectiveness related to the Reorganization is pending or threatened.
(i) FinPro, Inc., which prepared the appraisal of the aggregate pro forma market value of the Company and the Bank on which the Offering was based (the “Appraisal”), has advised the Primary Parties in writing that it is independent with respect to each of the Primary Parties within the meaning of the 1933 Act and Conversion Regulations.
(j) M▇▇▇▇▇▇ M▇▇▇▇▇ ▇▇▇▇▇ & Associates, which certified the financial statements filed as part of the Registration Statement and the Applications, have advised the Primary Parties in writing that it is registered with the Public Company Accounting Oversight Board and with respect to each of the Primary Parties, is an independent certified public accountant under the 1933 Act and rules and regulations promulgated thereunder and within the meaning of the Code of Professional Ethics of the American Institute of Certified Public Accountants and any applicable regulations of the Department.
(k) The financial statements, schedules and the notes thereto which are included in the Registration Statement and which are a part of the Prospectus present fairly the financial condition and retained earnings of the Bank as of the dates indicated and the results of operations and cash flows for the periods specified. The financial statements comply in all material respects with the applicable accounting requirements of Title 12 of the Code of Federal Regulations, Regulation S-X of the Commission, the standards of the Public Company Accounting Oversight Board and of the American Institute of Certified Public Accountants, as applicable, and generally accepted accounting principles (“GAAP”), applied on a consistent basis during the periods presented except as otherwise noted therein, and present fairly in all material respects the information required to be stated therein and are consistent with the most recent financial statements and other reports filed by the Bank with the Department, the FDIC and the FRB, except that the accounting principles employed in such regulatory filings conform to the requirements of the Department or the FDIC and not necessarily to GAAP. The other financial, statistical and pro forma information and related notes included in the Prospectus present fairly the information shown therein on a basis consistent with the audited and unaudited financial statements of the Bank included in the Prospectus, and as to the pro forma adjustments, the adjustments made therein have been properly applied on the basis described therein.
(l) Since the respective dates as of which information is given in the Registration Statement, including the Prospectus, other than as disclosed therein: (i) there has not been any material adverse change in the financial condition or in the earnings, capital, properties or business affairs of any of the Primary Parties or of the Primary Parties considered as one enterprise, or in the earnings, capital, properties of the MHC, the Company or the Bank, whether or not arising in the ordinary course of business; (ii) there has not been any material decrease in equity capital or total assets of the Bank, any material increase in the liabilities of the Bank or in the aggregate amount of loans past due ninety (90) days or more, or any real estate acquired by foreclosure, by deed-in-lieu of foreclosure or loans characterized as “in substance foreclosure;” nor has the Bank issued any securities or incurred any liability or obligation for borrowings other than in the ordinary course of business; (iii) there have not been any material transactions entered into by any of the Primary Parties, other than those in the ordinary course of business; (iv) except as disclosed in the Prospectus, there has been no material change in the management of the MHC, the Company or the Bank; (v) neither the MHC, the Company nor the Bank has defaulted in the payment of principal or interest on any outstanding debt obligations; and (vi) there has been no material adverse change in the Primary Parties’ relationship with their respective insurance carriers, including without limitation, cancellation or other termination of any of the Primary Parties’ insurance coverage. The capitalization, liabilities, assets, properties and business of the Primary Parties conform in all material respects to the descriptions thereof contained in the Prospectus and none of the Primary Parties has any material liabilities of any kind, contingent or otherwise, except as disclosed in the Registration Statement or the Prospectus.
(m) The Bank is a validly existing Pennsylvania chartered savings bank in mutual form of organization and upon the Reorganization will be a duly organized and validly existing Pennsylvania-chartered savings bank in capital stock form of organization, in both instances duly authorized to conduct its business and own its property as described in the Registration Statement and the Prospectus; the Bank has obtained all licenses and permits and other governmental authorizations currently required for the conduct of its business, except where the failure to obtain such licenses, permits or governmental authorizations individually or in the aggregate would not materially adversely affect the financial condition, earnings, capital, properties or business affairs of the Primary Parties taken as a whole; all such licenses, permits and governmental authorizations are in full force and effect, and the Bank is in compliance with all material laws, rules, regulations and orders applicable to the operation of its business, except, as disclosed in the Prospectus or where the failure to be in compliance would not materially adversely affect the financial condition, earnings, capital, properties or business affairs of the Primary Parties taken as a whole; the Bank is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which its ownership of property or leasing of property or the conduct of its business requires such qualification, except where the failure to so qualify would not have a material adverse effect on the financial condition, earnings, capital, properties or business affairs of the Primary Parties taken as a whole. The Bank does not own equity securities or any equity interest in any other business enterprise except as described in the Prospectus. Upon completion of the sale by the Company of the Shares and Reorganization as contemplated by the Prospectus and the Plan, (i) all of the authorized and outstanding capital stock of the Bank will be owned by the Company, and (ii) the Company will have no direct subsidiaries other than the Bank. The Reorganization will be effected in all material respects in accordance with all applicable statutes, regulations, decisions and orders; and, except with respect to the filing of certain post-sale, post-Reorganization reports, and documents in compliance with the 1933 Act and any rules and regulations promulgated thereunder, the Conversion Regulations or letters of approval, and the Department’s regulations or letter(s) of approval, on the Closing Date all terms, conditions, requirements and provisions with respect to the Reorganization imposed by the Commission, the Departm
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Representations and Warranties of the Primary Parties. The Primary Parties jointly and severally represent and warrant to the Agent that, except as disclosed in the Prospectus:
(a) The MHC, the Mid-Tier Holding Company, the Holding Company and LMIC have and, as of the Closing Time, will Bank have all such power, authority, authorizations, approvals and orders as may be required to enter into this Agreement, and, as of the Closing Date, the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank will have all such power, authority, authorizations, approvals and orders as may be required to carry out the provisions and conditions hereof and to issue and sell the Shares and to issue the Foundation Shares and the Exchange Shares as provided herein and as described in the Prospectus. Subject to the receipt of member and regulatory approval, the The consummation of the Conversion and the ReorganizationConversion, the execution, delivery and performance of this Agreement and the Letter Agreement and the consummation of the transactions contemplated herein contemplated, have been duly and validly authorized by all necessary corporate action on the part of the MHC, the Mid-Tier Holding Company, the Holding Company and LMICthe Bank. This Agreement has been validly executed and delivered by the Holding Company and LMICPrimary Parties, and is a valid, legal and binding obligation of the Holding Company and LMICPrimary Parties, in each case enforceable in accordance with its terms, except as the legality, validity, binding nature and enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium, conservatorship, receivership or other similar laws relating to or affecting the enforcement of creditors’ rights generally; (ii) general equity principles regardless of whether such enforceability is considered in a proceeding in equity or at law; and (iii) the extent, if any, that the provisions of Sections 11 or and 12 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 savings institutions insured by the FDIC (including the laws relating to the rights of the contracting parties to equitable remedies).
(b) The Registration Statement was declared effective by the Commission on , 2008, and no 2009. No stop order has been issued with respect thereto and no to the Registration Statement. No proceedings therefore related to the Registration Statement have been initiated or, to the best knowledge of the Primary Parties, threatened by the Commission. At the time the Registration Statement (Statement, including the Prospectus contained therein) therein (including any amendment or supplement thereto), became effective, the Registration Statement (including the Prospectus contained therein) complied as to form in all material respects with the 1933 Act and the regulations promulgated thereunder 1933 Act Regulations and the Registration Statement (Statement, including the Prospectus contained thereintherein (including any amendment or supplement thereto), any Blue Sky Application or any Sales Information (as such terms are defined in Section 11 hereof) authorized by the Primary Parties for use in connection with the Offering, did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. At the time any Rule 424(b) or (c) Prospectus was filed with the Commission and at the Closing Time Date referred to in Section 5, the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto)) and, and when taken together with the Prospectus, any Blue Sky Application (if applicable) or any Sales Information (as defined below) authorized for use by any of the Primary Parties for use in connection with the Offerings Offering, will 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; provided, however, that the representations and warranties in this Section 6(b) shall not apply to statements or omissions made in reliance upon and in conformity with written information furnished to the Primary Parties by the Agent expressly regarding the Agent for use under the captions “MARKET FOR THE COMMON STOCK” and caption “The CONVERSION – Conversion and Offering — Marketing and Underwriting Arrangements” or written statements or omissions from any Blue Sky Application sales information or any Sales Informationinformation filed pursuant to state securities or blue sky laws or regulations regarding the Agent.
(c) At the time of filing the Registration Statement and at the date hereof, the Holding Company was not, and is not, an ineligible issuer, as defined in Rule 405. At the time of the filing of the Registration Statement and at the time of the use of any issuer free writing prospectus, as defined in Rule 433(h), the Holding Company met the conditions required by Rules 164 and 433 for the use of a free writing prospectus. If required to be filed, the Holding Company has filed any issuer free writing prospectus related to the offered Shares at the time it is required to be filed under Rule 433 and, if not required to be filed, will retain such free writing prospectus in the Holding Company’s records pursuant to Rule 433(g) and if any issuer free writing prospectus is used after the date hereof in connection with the offering of the Shares the Holding Company will file or retain such free writing prospectus as required by Rule 433.
(d) As of the Applicable Time (as hereinafter defined)Time, neither (i) the Issuer-Represented General Free Writing Prospectus(es) issued at or prior to the Applicable Time and the Statutory Prospectus, all considered together (collectively, the “General Disclosure Package”), nor (ii) any individual Issuer-Represented Limited-Use Free Writing Prospectus, when considered together with the General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from any Prospectus included in the Registration Statement relating to the offered Shares or any Issuer-Represented Free Writing Prospectus based upon and in conformity with written information furnished to the Primary Parties Holding Company by the Agent specifically for use therein. As used in this paragraph and elsewhere in this Agreement:
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Representations and Warranties of the Primary Parties. The Primary Parties jointly and severally represent and warrant to the Agent that, except as disclosed in the Prospectus:
(a) The Bank, the MHC and the Holding Company and LMIC have and, as of the Closing Time, will have all such power, authority, authorizations, approvals and orders as may be required to enter into this Agreement, to carry out the provisions and conditions hereof and to issue and sell the Shares as provided herein and as described in the Prospectus, subject to the various limitations and required approvals described therein. Subject to the receipt of member and regulatory approval, the consummation of the Conversion and the ReorganizationOffering, the execution, delivery and performance of this Agreement and the Letter Agreement and the consummation of the transactions herein contemplated, contemplated have been duly and validly authorized by all necessary corporate action on the part of the Bank, the MHC and the Holding Company and LMICas of the Closing Date. This Agreement has been validly executed and delivered by the Holding Company Company, the MHC and LMICthe Bank, and is a valid, legal and binding obligation of the Holding Company Company, the MHC and LMIC, the Bank enforceable in accordance with its terms, except as the legality, validity, binding nature and enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium, conservatorship, receivership or other similar laws relating to or affecting the enforcement of creditors’ rights generally; (ii) general equity principles regardless of whether such enforceability is considered in a proceeding in equity or at law; and (iii) the extent, if any, that the provisions of Sections 10 and 11 or 12 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 savings institutions insured by the FDIC (including the laws relating to the rights of the contracting parties to equitable remedies).
(b) The Plan has been approved by the OTS.
(c) The Registration Statement was declared effective by the Commission on , 2008, [SEC Effective Date]; and no stop order has been issued with respect thereto and no proceedings therefore have been initiated or, to the best knowledge of the Primary Parties, threatened by the Commission. At the time the Registration Statement (Statement, including the Prospectus contained therein) therein (including any amendment or supplement thereto), became effective, the Registration Statement (including the Prospectus contained therein) complied as to form in all material respects with the 1933 Act and the regulations promulgated thereunder and the Registration Statement (Statement, including the Prospectus contained thereintherein (including any amendment or supplement thereto), any Blue Sky Application or any Sales Information (as such terms are defined in Section 10 hereof) authorized by the Primary Parties for use in connection with the Offering did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. At , and at the time any Rule 424(b) or (c) Prospectus was filed with the Commission and at the Closing Time Date referred to in Section 5, the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto), and any Blue Sky Application or any Sales Information authorized by the Primary Parties for use in connection with the Offerings will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties in this Section 6(b6(c) shall not apply to statements or omissions made in reliance upon and in conformity with written information furnished to the Primary Parties by the Agent expressly regarding the Agent for use under the captions “MARKET FOR THE COMMON STOCKMarket for the Common Stock” and “The CONVERSION – Stock Offering—Marketing and Underwriting Arrangements” or written statements or omissions from any Blue Sky Application sales information or any Sales Informationinformation filed pursuant to state securities or blue sky laws or regulations regarding Agent.
(cd) At the time of filing the Registration Statement relating to the Offering and at the date hereof, the Holding Company was not, and is not, an ineligible issuer, as defined in Rule 405. At the time of the filing of the Registration Statement and at the time of the use of any issuer free writing prospectus, as defined in Rule 433(h), the Holding Company met the conditions required by Rules 164 and 433 for the use of a free writing prospectus. If required to be filed, the Holding Company has filed any issuer free writing prospectus related to the offered Shares at the time it is required to be filed under Rule 433 and, if not required to be filed, will retain such free writing prospectus in the Holding Company’s records pursuant to Rule 433(g) and if any issuer free writing prospectus is used after the date hereof in connection with the offering of the Shares the Holding Company will file or retain such free writing prospectus as required by Rule 433.
(de) `As of the Applicable Time (as hereinafter defined)Time, neither (i) the Issuer-Represented General Free Writing Prospectus(es) issued at or prior to the Applicable Time and the Statutory Prospectus, all considered together (collectively, the “General Disclosure Package”), nor (ii) any individual Issuer-Represented Limited-Use Free Writing Prospectus, when considered together with the General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from any Prospectus included in the Registration Statement relating to the offered Shares or any Issuer-Represented Free Writing Prospectus based upon and in conformity with written information furnished to the Primary Parties Holding Company by the Agent specifically for use therein. As used in this paragraph and elsewhere in this Agreement:
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Representations and Warranties of the Primary Parties. The Primary Parties jointly and severally represent and warrant to the Agent that, except as disclosed in the Prospectus:
(a) The Holding Company and LMIC have and, as of the Closing Time, will Primary Parties have all such power, authority, authorizations, approvals and orders as may be required to enter into this Agreement, to carry out the provisions and conditions hereof and to issue and sell the Shares as provided herein and as described in the Prospectus. Subject to the receipt of member and regulatory approval, the The consummation of the Conversion and the Reorganization, the execution, delivery and performance of this Agreement and the Letter Agreement and the consummation of the transactions herein contemplated, contemplated have been duly and validly authorized by all necessary corporate action on the part of the Holding Company Primary Parties and LMIC. This this Agreement has been validly executed and delivered by the Holding Company Primary Parties and, assuming valid execution and LMICdelivery by the Agent, and is a the valid, legal and binding obligation agreement of the Holding Company and LMIC, Primary Parties enforceable in accordance with its terms, except as the legality, validity, binding nature and enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium, conservatorship, receivership or other similar laws relating to or affecting the enforcement of creditors’ rights generally; (ii) general equity principles regardless of whether such enforceability is considered in a proceeding in equity or at law; and (iii) the extent, if any, that the provisions of Sections 10 and 11 or 12 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 savings institutions insured by the FDIC (including the laws relating to the rights of the contracting parties to equitable remedies).
(b) The Registration Statement was declared effective by the Commission on May __, 2008, 1998; and no stop order has been issued with respect thereto and no proceedings therefore therefor have been initiated or, to the best knowledge of the Primary Parties, threatened by the Commission. At the time the Registration Statement (Statement, including the Prospectus contained therein) therein (including any amendment or supplement thereto), became effective, the Registration Statement (including the Prospectus contained therein) complied as to form in all material respects with the requirements of the 1933 Act and the regulations promulgated thereunder and the Registration Statement (Statement, including the Prospectus contained thereintherein (including any amendment or supplement thereto), any Blue Sky Application or any Sales Information (as such terms are defined in Section 10 hereof) authorized by the Primary Parties for use in connection with the Offerings did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. At , and at the time any Rule 424(b) or (c) Prospectus was filed with the Commission and at the Closing Time Date referred to in Section 5, the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto), and any Blue Sky Application or any Sales Information authorized by the Primary Parties for use in connection with the Offerings will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties in this Section 6(b6A(c) shall not apply to statements or omissions made in reliance upon and in conformity with written information furnished to the Primary Parties by the Agent expressly regarding the Agent or KBW for use under the captions “MARKET FOR THE COMMON STOCK” "Market for Common Stock," "The Conversion and “The CONVERSION – Marketing Reorganization -- Plan of Distribution for the Subscription, Direct Community and Underwriting Arrangements” Syndicated Community Offerings" and "--Description of Sales Activities" or written statements or omissions from any Blue Sky Application sales information or any Sales Informationinformation filed pursuant to state securities or blue sky laws or regulations regarding the Agent or KBW.
(c) At The Conversion Application, including the time of filing the Registration Statement and at the date hereofPlan, the Holding Company was notProspectus, the Proxy Statement of the MHC relating to the special meeting of the members of the MHC at which the Plan shall be considered for approval by the MHC's eligible voting members, and is notthe Proxy Statement of the Bank relating to the special meeting of stockholders at which the Plan shall be considered for approval by the Bank's eligible voting stockholders (collectively, an ineligible issuerthe "Proxy Statements"), as defined in Rule 405was approved by the FDIC on _______, 1998 and by the PDOB on ________, 1998. At the time of the filing approval of the Registration Statement Conversion Application, including the Prospectus, by the FDIC and the PDOB (including any amendment or supplement thereto) and at all times subsequent thereto until the Closing Date, the Conversion Application, including the Prospectus, did and will comply as to form in all material respects with the Conversion Regulations and any other applicable rules and regulations of the FDIC or the PDOB (except as modified or waived in writing by the FDIC or the PDOB). At the time of the use approval of the Conversion Application, and as of the date of this Agreement, the Conversion Application, including the Prospectus (including any issuer free writing prospectus, as defined in Rule 433(hamendment or supplement thereto), the Holding Company met the conditions required by Rules 164 did not and 433 for the use of a free writing prospectus. If required to be filed, the Holding Company has filed any issuer free writing prospectus related to the offered Shares at the time it is required to be filed under Rule 433 and, if does not required to be filed, will retain such free writing prospectus in the Holding Company’s records pursuant to Rule 433(g) and if any issuer free writing prospectus is used after the date hereof in connection with the offering of the Shares the Holding Company will file or retain such free writing prospectus as required by Rule 433.
(d) As of the Applicable Time (as hereinafter defined), neither (i) the Issuer-Represented General Free Writing Prospectus(es) issued at or prior to the Applicable Time and the Statutory Prospectus, all considered together (collectively, the “General Disclosure Package”), nor (ii) any individual Issuer-Represented Limited-Use Free Writing Prospectus, when considered together with the General Disclosure Package, included include any untrue statement of a material fact or omitted omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does ; provided, however, that representations or warranties in this subsection (d) shall not apply to statements in or omissions from any Prospectus included made in the Registration Statement relating to the offered Shares or any Issuer-Represented Free Writing Prospectus based reliance upon and in conformity with written information furnished to the Primary Parties by the Agent specifically expressly regarding the Agent or KBW, for use in the Prospectus contained in the Conversion Application under the captions "Market for Common Stock," "The Conversion and Reorganization -- Plan of Distribution for the Subscription, Direct Community and Syndicated Community Offerings" and "--Description of Sales Activities" or written statements or omissions from any sales information or information filed pursuant to state securities or blue sky laws or regulations regarding the Agent.
(d) No order has been issued by the FDIC, the PDOB, the Commission, or any state regulatory authority, preventing or suspending the use of the Prospectus and no action by or before any such government entity to revoke any approval, authorization or order of effectiveness related to the Reorganization is pending or, to the best knowledge of the Primary Parties, threatened.
(e) The Plan has been adopted by the Board of Directors of the Holding Company, the MHC and the Bank. To the best knowledge of the Primary Parties, no person has, or at the Closing Date will have, sought to obtain review of the final action of the FDIC or the PDOB in approving the Plan, the Reorganization, the Conversion Application or the Merger Application, pursuant to the Conversion Regulations or any other statute or regulation.
(f) The Holding Company Application was approved by the FRB on _______________, 1998. At the time of the approval of the Holding Company Application and at all times subsequent thereto until the Closing Date, the Holding Company Application did and will comply as to form in all material respects with the BHCA. To the best knowledge of the Primary Parties, no person has, or at the Closing Date will have, sought to obtain review of the final action of the FRB in approving the Holding Company Application pursuant to the BHCA or any other statute or regulation.
(g) The Merger Application was approved by the FDIC on _______________, 1998 and by the PDOB on _____________, 1998. At the time of the approval of the Merger Application and at all times subsequent thereto until the Closing Date, the Merger Application did and will comply as to form in all material respects with the applicable provisions of the Federal Deposit Insurance Act and the regulations promulgated thereunder and with the applicable provisions of Pennsylvania law and the regulations promulgated thereunder. To the best knowledge of the Primary Parties, no person has, or at the Closing Date will have, sought to obtain review of the final action of the FDIC or the PDOB in approving the Merger Application.
(h) R.P. Financial, LC., which prepared the appraisal of the pro forma market value of the Bank and the MHC on which the Offerings were based (the "Appraisal"), has advised the Primary Parties in writing that it is independent with respect to each of the Primary Parties within the meaning of the Conversion Regulations.
(i) Stockton ▇▇▇▇▇ & Co., P.C., which certified the financial statements filed as part of the Registration Statement and the Conversion Application, has advised the Primary Parties in writing that they are, with respect to each of the Primary Parties, independent certified public accountants under the 1933 Act and the regulations promulgated thereunder.
(j) The financial statements and the notes thereto which are included in the Registration Statement and which are a part of the Prospectus present fairly the financial condition and shareholders' equity of the Bank as of the dates indicated and the results of operations and cash flows for the periods specified. The financial statements comply in all material respects with the applicable accounting requirements of Regulation S-X of the Commission and generally accepted accounting principles ("GAAP") applied on a consistent basis during the periods presented except as otherwise noted therein, present fairly in all material respects the information required to be stated therein, and are consistent with the most recent financial statements and other reports filed by the Bank with the PDOB and the FDIC except that accounting principles employed in such filings conform to requirements of such authorities and not necessarily to GAAP. As used The other financial, statistical and pro forma information and related notes included in this paragraph the Prospectus present fairly the information shown therein on a basis consistent with the audited and elsewhere unaudited financial statements included in this Agreement:the Prospectus, and as to the pro forma adjustments, the adjustments made therein have been properly applied on the basis described therein.
(k) Since the respective dates as of which information is given in the Registration Statement, including the Prospectus: (i) there has not been any material adverse change in the financial condition or in the earnings, capital, properties or business affairs of any of the Primary Parties or of the Primary Parties considered as one enterprise, whether or not arising in the ordinary course of business; (ii) there has not been any material increase in the aggregate amount of loans past due ninety (90) days or more, any real estate acquired by foreclosure or loans characterized as "in substance foreclosure" or any change in total assets of the Bank in an amount greater than $3.0 million; nor has the Bank issued any securities or incurred any liability or obligation for borrowings other than in the ordinary course of business; (iii) there have not been any material transactions entered into by any of the Primary Parties, other than those in the ordinary course of business; and (iv) the capitalization, liabilities, assets, properties and business of the Primary Parties conform in all material respects to the descriptions thereof contained in the Prospectus and, none of the Primary Parties has any material liabilities of any kind, contingent or otherwise, except as disclosed in the Registration Statement or the Prospectus.
(l) The Holding Company is a corporation organized and in good standing under the laws of the Commonwealth of Pennsylvania, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business requires such qualification unless the failure to qualify in one or more of such jurisdictions would not have a material adverse effect on the financial condition, earnings, capital, properties or business affairs of the Primary Parties. The Holding Company has obtained all licenses, permits and other governmental authorizations currently required for the conduct of its business, except those that individually or in the aggregate would not materially adversely affect the financial condition, earnings, capital, assets or properties of the Primary Parties taken as a whole; and all such licenses, permits and governmental authorizations are in full force and effect, and the Holding Company is complying in all material respects therewith.
(m) The MHC is organized and is validly existing as a mutual holding company under the laws of the Commonwealth of Pennsylvania, and is duly authorized to conduct its business and own its property as described in the Registration Statement and the Prospectus; the MHC has obtained all licenses, permits and other governmental authorizations required for the conduct of its business except those that individually or in the aggregate would not materially adversely affect the financial condition, earnings, capital, assets or properties of the Primary Parties taken as a whole; all such licenses, permits and governmental authorizations are in full force and effect and the MHC is complying therewith in all material respects; the MHC is duly qualified as a foreign corporation to transact business in each jurisdiction in which the failure to be so qualified in one or more of such jurisdictions would have a material adverse effect on the financial condition, earnings, capital, assets properties or business of the Primary Parties.
(n) The MHC does not own any equity securities or any equity interest in any business enterprise except as described in the Prospectus.
(o) The Bank is organized and validly existing as a Pennsylvania-chartered savings bank in stock form, and is duly authorized to own its properties and conduct its business as described in the Prospectus; the activities of the Bank are permitted by the rules, regulations and practices of the FDIC and PDOB; the Bank has obtained all licenses, permits and other governmental authorizations currently required for the conduct of its business except those that individually or in the aggregate would not materially adversely affect the financial condition of the Primary Parties taken as a whole; all such licenses, permits and other governmental authorizations are in full force and effect and the Bank is duly qualified as a foreign corporation to transact business in each jurisdiction in which failure to so qualify would have a material adverse effect upon the financial condition, earnings, capital, properties or business affairs of the Bank; all of the issued and outstanding capital stock of the Bank after the Reorganization will be duly and validly issued and fully paid and nonassessable; and the Holding Company will directly own all of such capital stock free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction. The Bank does not own equity securities or any equity interest in any other business enterprise except for Transnational Mortgage Corporation, PSA Service Corp., PSA Financial Corp. and PSA Consumer Discount Company (the "Subsidiaries") and as otherwise described in the Prospectus.
(p) The Bank is a member of the Federal Home Loan Bank of Pittsburgh ("FHLB of Pittsburgh"); the deposit accounts of the Bank are insured by the FDIC up to applicable limits.
(q) The Bank's authorized capital stock consists solely of 10,000,000 shares of the Bank Common Stock, of which 1,194,640 shares are issued and outstanding as of the date hereof (615,250 issued and outstanding to the MHC); and the MHC is not authorized to issue any shares of capital stock.
(r) The Subsidiaries are organized, validly existing and in good standing under the laws of the Commonwealth of Pennsylvania, with full power and authority to own their property and conduct their business; each of the Subsidiaries is duly qualified as a foreign corporation to transact business in each jurisdiction in which failure to so qualify would have a material adverse effect on the financial condition, earnings, capital, assets or properties of the Primary Parties and their subsidiaries, taken as a whole; the Subsidiaries hold all licenses, certificates and permits from governmental authorities necessary for the conduct of their business, except where failure to hold such licenses, permits or authorizations would not have a material adve
Appears in 1 contract
Sources: Agency Agreement (PSB Bancorp Inc)
Representations and Warranties of the Primary Parties. The Primary Parties jointly and severally represent and warrant to the Agent that, except as disclosed in the Prospectus:
(a) The Holding Company and LMIC have and, as Each of the Closing Time, will have Primary Parties has all such power, authority, authorizations, approvals and orders as may be required to enter into this Agreement, and, as of the Closing Date, each of the Primary Parties will have all such power, authority, authorizations, approvals and orders as may be required to carry out the provisions and conditions hereof and to issue and sell the Shares as provided herein and as described in the Prospectus. Subject to the receipt of member and regulatory approval, the The consummation of the Conversion and the ReorganizationConversion, the execution, delivery and performance of this Agreement and the Letter Agreement and the consummation of the transactions contemplated herein contemplated, have been duly and validly authorized by all necessary corporate action on the part of the Holding Company Primary Parties and, as of the Closing Date, will have been duly and LMICvalidly authorized by all necessary corporate action on the part of each of the Primary Parties. This Agreement has been validly executed and delivered by the Holding Company and LMICPrimary Parties, and is a valid, legal and binding obligation of the Holding Company and LMICPrimary Parties, in each case enforceable in accordance with its terms, except as the legality, validity, binding nature and enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium, conservatorship, receivership or other similar laws relating to or affecting the enforcement of creditors’ rights generally; (ii) general equity principles regardless of whether such enforceability is considered in a proceeding in equity or at law; and (iii) the extent, if any, that the provisions of Sections 11 or and 12 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 savings institutions insured by the Federal Deposit Insurance Corporation (the “FDIC”) (including the laws relating to the rights of the contracting parties to equitable remedies).
(b) The Registration Statement was declared effective by the Commission on August 13, 2008, and no 2012. No stop order has been issued with respect thereto and no to the Registration Statement. No proceedings therefore related to the Registration Statement have been initiated or, to the best knowledge of the Primary Parties, threatened by the Commission. At the time the Registration Statement (Statement, including the Prospectus contained therein) therein (including any amendment or supplement thereto), became effective, the Registration Statement (including the Prospectus contained therein) complied as to form in all material respects with the 1933 Act and the regulations promulgated thereunder 1933 Act Regulations and the Registration Statement (Statement, including the Prospectus contained thereintherein (including any amendment or supplement thereto), any Blue Sky Application or any Sales Information (as such terms are defined in Section 11 hereof) authorized by the Primary Parties for use in connection with the Offering, did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. At the time any Rule 424(b) or (c) Prospectus was filed with the Commission and at the Closing Time Date referred to in Section 5, the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto)) and, and when taken together with the Prospectus, any Blue Sky Application (if applicable) or any Sales Information (as defined below) authorized for use by any of the Primary Parties for use in connection with the Offerings Offering, will 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; provided, however, that the representations and warranties in this Section 6(b) shall not apply to statements or omissions made in reliance upon and in conformity with written information furnished to the Primary Parties by the Agent expressly regarding the Agent for use under the captions “MARKET FOR THE COMMON STOCK” and caption “The CONVERSION Conversion and Offering – Marketing and Underwriting ArrangementsDistribution; Compensation” or written statements or omissions from any Blue Sky Application sales information or any Sales Informationinformation filed pursuant to state securities or blue sky laws or regulations regarding the Agent.
(c) At the time of filing the Registration Statement and at the date hereof, the Holding Company was not, and is not, an ineligible issuer, as defined in Rule 405405 under the 1933 Act Regulations. At the time of the filing of the Registration Statement and at the time of the use of any issuer free writing prospectus, as defined in Rule 433(h)) under the 1933 Act Regulations, the Holding Company met the conditions required by Rules 164 and 433 under the 1933 Act Regulations for the use of a free writing prospectus. If required to be filed, the Holding Company has filed any issuer free writing prospectus related to the offered Shares at the time it is required to be filed under Rule 433 under the 1933 Act Regulations and, if not required to be filed, will retain such free writing prospectus in the Holding Company’s records pursuant to Rule 433(g) and if any issuer free writing prospectus is used after the date hereof in connection with the offering of the Shares Shares, the Holding Company will file or retain such free writing prospectus as required by Rule 433433 under the 1933 Act Regulations.
(d) As of the Applicable Time (as hereinafter defined)Time, neither (i) the Issuer-Represented General Free Writing Prospectus(es) issued at or prior to the Applicable Time and the Statutory Prospectus, all considered together (collectively, the “General Disclosure Package”), nor (ii) any individual Issuer-Represented Limited-Use Free Writing Prospectus, when considered together with the General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from any Prospectus included in the Registration Statement relating to the offered Shares or any Issuer-Represented Free Writing Prospectus based upon and in conformity with written information furnished to the Primary Parties Holding Company by the Agent specifically for use therein. As used in this paragraph and elsewhere in this Agreement:
Appears in 1 contract
Representations and Warranties of the Primary Parties. The Primary Parties jointly and severally represent and warrant to the Agent that, except as disclosed in the Prospectus:
(a) The Holding Company and LMIC have Bank has and, as of the Closing TimeDate, Company will have all such power, authority, authorizations, approvals and orders as may be required to enter into this Agreement, to carry out the provisions and conditions hereof and to issue and sell the Shares as provided herein and as described in the Prospectus, subject to the various limitations and required approvals described therein. Subject to the receipt of member corporator and regulatory approval, the consummation of the Conversion and the Reorganization, the execution, delivery and performance of this Agreement and the Letter Agreement and the consummation of the transactions herein contemplated, contemplated have been duly and validly authorized by all necessary corporate action on the part of the Holding Company Bank and, as of the Closing Date, will have been duly and LMICvalidly authorized by all necessary corporate action on the part of the Company. This Agreement has been validly executed and delivered by the Holding Company (in formation) and LMICthe Bank, and is a valid, legal and binding obligation of the Holding Company and LMICthe Bank, enforceable in accordance with its terms, except as the legality, validity, binding nature and enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium, conservatorship, receivership or other similar laws relating to or affecting the enforcement of creditors’ rights generally; (ii) general equity principles regardless of whether such enforceability is considered in a proceeding in equity or at law; and (iii) the extent, if any, that the provisions of Sections 10 and 11 or 12 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 savings institutions insured by the FDIC (including the laws relating to the rights of the contracting parties to equitable remedies).
(b) The Plan has been approved by the Department and the OTS.
(c) The Registration Statement was declared effective by the Commission on , 20082006, and no stop order has been issued with respect thereto and no proceedings therefore have been initiated or, to the best knowledge of the Primary Parties, threatened by the Commission. At the time the Registration Statement (Statement, including the Prospectus contained therein) therein (including any amendment or supplement thereto), became effective, the Registration Statement (including the Prospectus contained therein) complied as to form in all material respects with the 1933 Act and the regulations promulgated thereunder and the Registration Statement (Statement, including the Prospectus contained thereintherein (including any amendment or supplement thereto), any Blue Sky Application or any Sales Information (as such terms are defined in Section 10 hereof) authorized by the Primary Parties for use in connection with the Offering did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. At , and at the time any Rule 424(b) or (c) Prospectus was filed with the Commission and at the Closing Time Date referred to in Section 5, the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto), and any Blue Sky Application or any Sales Information authorized by the Primary Parties for use in connection with the Offerings Offering will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties in this Section 6(b6(c) shall not apply to statements or omissions made in reliance upon and in conformity with written information furnished to the Primary Parties by the Agent expressly regarding the Agent for use under the captions “MARKET FOR THE COMMON STOCKMarket for the Common Stock” and “The CONVERSION Conversion – “Marketing and Underwriting Arrangements” Distribution; Compensation;”“ or written statements or omissions from any Blue Sky Application or any Sales Information.
(cd) At the time of filing the Registration Statement relating to the offering of the Shares and at the date hereof, the Holding Company was not, and is not, an ineligible issuer, as defined in Rule 405. At the time of the filing of the Registration Statement and at the time of the use of any issuer free writing prospectus, as defined in Rule 433(h), the Holding Company met the conditions required by Rules 164 and 433 for the use of a free writing prospectus. If required to be filed, the Holding Company has filed any issuer free writing prospectus related to the offered Shares at the time it is required to be filed under Rule 433 and, if not required to be filed, will retain such free writing prospectus in the Holding Company’s records pursuant to Rule 433(g) and if any issuer free writing prospectus is used after the date hereof in connection with the offering of the Shares the Holding Company will file or retain such free writing prospectus as required by Rule 433.
(de) As of the Applicable Time (as hereinafter defined)Time, neither (i) the Issuer-Represented General Free Writing Prospectus(es) issued at or prior to the Applicable Time and the Statutory Prospectus, all considered together (collectively, the “General Disclosure Package”), nor (ii) any individual Issuer-Represented Limited-Use Free Writing Prospectus, when considered together with the General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from any Prospectus included in the Registration Statement relating to the offered Shares or any Issuer-Represented Free Writing Prospectus based upon and in conformity with written information furnished to the Primary Parties Company by the Agent specifically for use therein. As used in this paragraph and elsewhere in this Agreement:
Appears in 1 contract
Representations and Warranties of the Primary Parties. The Primary Parties make the following representations and warranties to the Agent, provided that (i) to the extent such representations and warranties relate to the Fairmount Parties, such representations and warranties are made by the Fairmount Parties, jointly and severally represent severally, and warrant not by Fullerton, and (ii) to the Agent thatextent such representations and warranties relate to Fullerton, except as disclosed in such representations and warranties are made by Fullerton and not by the ProspectusFairmount Parties jointly or severally:
(a) The Holding Company and LMIC have and, as Each of the Closing Time, will have Primary Parties has all such power, authority, authorizations, approvals and orders as may be required to enter into this Agreement, and, as of the Closing Date, each of the Primary Parties will have all such power, authority, authorizations, approvals and orders as may be required to carry out the provisions and conditions hereof and and, with respect to the Fairmount Parties, to issue and sell the Shares as provided herein and as described in the Prospectus. Subject to the receipt of member and regulatory approval, the The consummation of the Conversion and the ReorganizationMerger, the execution, delivery and performance of this Agreement and the Letter Agreement and the consummation of the transactions contemplated herein contemplated, have been duly and validly authorized by all necessary corporate action on the part of the Holding Company Primary Parties and, as of the Closing Date, will have been duly and LMICvalidly authorized by all necessary corporate action on the part of each of the Primary Parties. This Agreement has been validly executed and delivered by the Holding Company and LMICPrimary Parties, and is a valid, legal and binding obligation of the Holding Company and LMICPrimary Parties, in each case enforceable in accordance with its terms, except as the legality, validity, binding nature and enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium, conservatorship, receivership or other similar laws relating to or affecting the enforcement of creditors’ rights generally; (ii) general equity principles regardless of whether such enforceability is considered in a proceeding in equity or at law; and (iii) the extent, if any, that the provisions of Sections 11 or and 12 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 savings institutions insured by the Federal Deposit Insurance Corporation (the “FDIC”) (including the laws relating to the rights of the contracting parties to equitable remedies).
(b) The Registration Statement was declared effective by the Commission on August 12, 2008, and no 2011. No stop order has been issued with respect thereto and no to the Registration Statement. No proceedings therefore related to the Registration Statement have been initiated or, to the best knowledge of the Primary Fairmount Parties, threatened by the Commission. At the time the Registration Statement (Statement, including the Prospectus contained therein) therein (including any amendment or supplement thereto), became effective, the Registration Statement (including the Prospectus contained therein) complied as to form in all material respects with the 1933 Act and the regulations promulgated thereunder 1933 Act Regulations and the Registration Statement (Statement, including the Prospectus contained thereintherein (including any amendment or supplement thereto), any Blue Sky Application or any Sales Information (as such terms are defined in Section 11 hereof) authorized by the Primary Parties for use in connection with the Offering, did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. At the time any Rule 424(b) or (c) Prospectus was filed with the Commission and at the Closing Time Date referred to in Section 5, the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto)) and, and when taken together with the Prospectus, any Blue Sky Application (if applicable) or any Sales Information (as defined below) authorized for use by any of the Primary Parties for use in connection with the Offerings Offering, will 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; provided, however, that the representations and warranties in this Section 6(b) shall not apply to statements or omissions made in reliance upon and in conformity with written information furnished to the Primary Parties by the Agent expressly regarding the Agent for use under the captions “MARKET FOR THE COMMON STOCK” and caption “The CONVERSION Offering – Marketing and Underwriting ArrangementsPlan of Distribution; Selling Agent Compensation” or written statements or omissions from any Blue Sky Application sales information or any Sales Informationinformation filed pursuant to state securities or blue sky laws or regulations regarding the Agent.
(c) At the time of filing the Registration Statement and at the date hereof, the Holding Company was not, and is not, an ineligible issuer, as defined in Rule 405. At the time of the filing of the Registration Statement and at the time of the use of any issuer free writing prospectus, as defined in Rule 433(h), the Holding Company met the conditions required by Rules 164 and 433 for the use of a free writing prospectus. If required to be filed, the Holding Company has filed any issuer free writing prospectus related to the offered Shares at the time it is required to be filed under Rule 433 and, if not required to be filed, will retain such free writing prospectus in the Holding Company’s records pursuant to Rule 433(g) and if any issuer free writing prospectus is used after the date hereof in connection with the offering of the Shares the Holding Company will file or retain such free writing prospectus as required by Rule 433.
(d) As of the Applicable Time (as hereinafter defined)Time, neither (i) the Issuer-Represented General Free Writing Prospectus(es) issued at or prior to the Applicable Time and the Statutory Prospectus, all considered together (collectively, the “General Disclosure Package”), nor (ii) any individual Issuer-Represented Limited-Use Free Writing Prospectus, when considered together with the General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from any Prospectus included in the Registration Statement relating to the offered Shares or any Issuer-Represented Free Writing Prospectus based upon and in conformity with written information furnished to the Primary Parties Holding Company by the Agent specifically for use therein. As used in this paragraph and elsewhere in this Agreement:
Appears in 1 contract
Representations and Warranties of the Primary Parties. The Primary Parties jointly and severally represent and warrant to the Agent Agents that, except as disclosed in the Prospectus:
(a) The MHC, the Mid-Tier Holding Company, the Holding Company and LMIC the Bank all have and, as of the Closing Time, will have all such power, authority, authorizations, approvals and orders as may be required to enter into this Agreement, and, as of the Closing Date, the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank will have all such power, authority, authorizations, approvals and orders as may be required to carry out the provisions and conditions hereof and to issue and sell the Offer Shares and to issue the Exchange Shares as provided herein and as described in the Prospectus. Subject to the receipt of member and regulatory approval, the The consummation of the Conversion and the ReorganizationConversion, the execution, delivery and performance of this Agreement and the Letter Agreement and the consummation of the transactions contemplated herein contemplated, have been duly and validly authorized by all necessary corporate action on the part of the MHC, the Mid-Tier Holding Company, the Holding Company and LMICthe Bank. This Agreement has been validly executed and delivered by the Holding Company and LMICPrimary Parties, and is a valid, legal and binding obligation of the Holding Company and LMICPrimary Parties, in each case enforceable in accordance with its terms, except as the legality, validity, binding nature and enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium, conservatorship, receivership or other similar laws relating to or affecting the enforcement of creditors’ rights generally; (ii) general equity principles regardless of whether such enforceability is considered in a proceeding in equity or at law; and (iii) the extent, if any, that the provisions of Sections 11 or and 12 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 savings institutions insured by the FDIC (including the laws relating to the rights of the contracting parties to equitable remedies).
(b) The Registration Statement was declared effective by the Commission on November 10, 2008, and no 2010. No stop order has been issued with respect thereto and no to the Registration Statement. No proceedings therefore related to the Registration Statement have been initiated or, to the best knowledge of the Primary Parties, threatened by the Commission. At the time the Registration Statement (Statement, including the Prospectus contained therein) therein (including any amendment or supplement thereto), became effective, the Registration Statement (including the Prospectus contained therein) complied as to form in all material respects with the 1933 Act and the regulations promulgated thereunder 1933 Act Regulations and the Registration Statement (Statement, including the Prospectus contained thereintherein (including any amendment or supplement thereto), any Blue Sky Application or any Sales Information (as such terms are defined in Section 11 hereof) authorized by the Primary Parties for use in connection with the Offering, did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. At the time any Rule 424(b) or (c) Prospectus was filed with the Commission and at the Closing Time Date referred to in Section 5, the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto)) and, and when taken together with the Prospectus, any Blue Sky Application (if applicable) or any Sales Information (as defined in Section 11 hereof) authorized for use by any of the Primary Parties for use in connection with the Offerings Offering, will 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; provided, however, that the representations and warranties in this Section 6(b) shall not apply to statements or omissions made in reliance upon and in conformity with written information furnished to the Primary Parties by the Agent Agents expressly regarding the Agent Agents for use under the captions “MARKET FOR THE COMMON STOCK” and caption “The CONVERSION Conversion and Offering – Marketing and Underwriting Arrangements” or written statements in or omissions from any Blue Sky Application sales information or any Sales Informationinformation filed pursuant to state securities or blue sky laws or regulations regarding the Agents.
(c) At the time of filing the Registration Statement and at the date hereof, the Holding Company was not, and is not, an ineligible issuer, as defined in Rule 405. At the time of the filing of the Registration Statement and at the time of the use of any issuer free writing prospectus, as defined in Rule 433(h), the Holding Company met the conditions required by Rules 164 and 433 for the use of a free writing prospectus. If required to be filed, the Holding Company has filed any issuer free writing prospectus related to the offered Offer Shares at the time it is required to be filed under Rule 433 and, if not required to be filed, will retain such free writing prospectus in the Holding Company’s records pursuant to Rule 433(g) and if any issuer free writing prospectus is used after the date hereof in connection with the offering of the Shares the Holding Company will file or retain such free writing prospectus as required by Rule 433.
(d) As of the Applicable Time (as hereinafter defined)Time, neither (i) the Issuer-Represented General Free Writing Prospectus(es) issued at or prior to the Applicable Time and the Statutory Prospectus, all considered together (collectively, the “General Disclosure Package”), nor (ii) any individual Issuer-Represented Limited-Use Free Writing Prospectus, when considered together with the General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from any Prospectus included in the Registration Statement relating to the offered Offer Shares or any Issuer-Represented Free Writing Prospectus based upon and in conformity with written information furnished to the Primary Parties Holding Company by the Agent Agents specifically for use therein. As used in this paragraph and elsewhere in this Agreement:
Appears in 1 contract
Representations and Warranties of the Primary Parties. The Primary Parties jointly and severally represent and warrant to the Agent that, except as disclosed in the Prospectus:
(a) The MHC, the Mid-Tier Holding Company, the Holding Company and LMIC have and, as of the Closing Time, will Bank have all such power, authority, authorizations, approvals and orders as may be required to enter into this Agreement, and, as of the Closing Date, the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank will have all such power, authority, authorizations, approvals and orders as may be required to carry out the provisions and conditions hereof and to issue and sell the Shares as provided herein and as described in the Prospectus. Subject to the receipt of member and regulatory approval, the The consummation of the Conversion and the ReorganizationConversion, the execution, delivery and performance of this Agreement and the Letter Agreement and the consummation of the transactions contemplated herein contemplated, have been duly and validly authorized by all necessary corporate action on the part of the MHC, the Mid-Tier Holding Company, the Holding Company and LMICthe Bank. This Agreement has been validly executed and delivered by the Holding Company and LMICPrimary Parties, and is a valid, legal and binding obligation of the Holding Company and LMICPrimary Parties, in each case enforceable in accordance with its terms, except as the legality, validity, binding nature and enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium, conservatorship, receivership or other similar laws relating to or affecting the enforcement of creditors’ rights generally; (ii) general equity principles regardless of whether such enforceability is considered in a proceeding in equity or at law; and (iii) the extent, if any, that the provisions of Sections 11 or and 12 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 savings institutions insured by the FDIC (including the laws relating to the rights of the contracting parties to equitable remedies).
(b) The Registration Statement was declared effective by the Commission on May 13, 2008, and no 2011. No stop order has been issued with respect thereto and no to the Registration Statement. No proceedings therefore related to the Registration Statement have been initiated or, to the best knowledge of the Primary Parties, threatened by the Commission. At the time the Registration Statement (Statement, including the Prospectus contained therein) therein (including any amendment or supplement thereto), became effective, the Registration Statement (including the Prospectus contained therein) complied as to form in all material respects with the 1933 Act and the regulations promulgated thereunder 1933 Act Regulations and the Registration Statement (Statement, including the Prospectus contained thereintherein (including any amendment or supplement thereto), any Blue Sky Application or any Sales Information (as such terms are defined in Section 11 hereof) authorized by the Primary Parties for use in connection with the Offering, did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. At the time any Rule 424(b) or (c) Prospectus was filed with the Commission and at the Closing Time Date referred to in Section 5, the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto)) and, and when taken together with the Prospectus, any Blue Sky Application (if applicable) or any Sales Information (as defined below) authorized for use by any of the Primary Parties for use in connection with the Offerings Offering, will 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; provided, however, that the representations and warranties in this Section 6(b) shall not apply to statements or omissions made in reliance upon and in conformity with written information furnished to the Primary Parties by the Agent expressly regarding the Agent for use under the captions “MARKET FOR THE COMMON STOCK” and caption “The CONVERSION Conversion and Offering – Marketing and Underwriting Arrangements” or written statements in or omissions from any Blue Sky Application sales information or any Sales Informationinformation filed pursuant to state securities or blue sky laws or regulations regarding the Agent.
(c) At the time of filing the Registration Statement and at the date hereof, the Holding Company was not, and is not, an ineligible issuer, as defined in Rule 405. At the time of the filing of the Registration Statement and at the time of the use of any issuer free writing prospectus, as defined in Rule 433(h), the Holding Company met the conditions required by Rules 164 and 433 for the use of a free writing prospectus. If required to be filed, the Holding Company has filed any issuer free writing prospectus related to the offered Offer Shares at the time it is required to be filed under Rule 433 and, if not required to be filed, will retain such free writing prospectus in the Holding Company’s records pursuant to Rule 433(g) and if any issuer free writing prospectus is used after the date hereof in connection with the offering of the Shares the Holding Company will file or retain such free writing prospectus as required by Rule 433.
(d) As of the Applicable Time (as hereinafter defined)Time, neither (i) the Issuer-Represented General Free Writing Prospectus(es) issued at or prior to the Applicable Time and the Statutory Prospectus, all considered together (collectively, the “General Disclosure Package”), nor (ii) any individual Issuer-Represented Limited-Use Free Writing Prospectus, when considered together with the General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from any Prospectus included in the Registration Statement relating to the offered Offer Shares or any Issuer-Represented Free Writing Prospectus based upon and in conformity with written information furnished to the Primary Parties Holding Company by the Agent specifically for use therein. As used in this paragraph and elsewhere in this Agreement:
Appears in 1 contract
Representations and Warranties of the Primary Parties. The Primary Parties jointly and severally represent and warrant to the Agent that, except as disclosed in the Prospectus:
(a) The Holding Company and LMIC have and, as Each of the Closing Time, will have Primary Parties has all such power, authority, authorizations, approvals and orders as may be required to enter into this Agreement. At the Closing Time, each of the Primary Parties will have all such power, authority, authorizations, approvals and orders as may be required to carry out the provisions and conditions hereof and to issue and sell the Shares and issue the Foundation Shares as provided herein and as described in the Prospectus. Subject to the receipt of corporator, member and regulatory approval, the consummation of the Conversion and the ReorganizationOfferings, the execution, delivery and performance of this Agreement and the Letter Agreement and the consummation of the transactions herein contemplated, including the establishment and funding of the Charitable Foundation, have been duly and validly authorized by all necessary corporate action on the part of the Holding Company Primary Parties and, as of the Closing Time, will have been duly and LMICvalidly authorized by all necessary corporate action on the part of each of the Primary Parties. This Agreement has been validly executed and delivered by each of the Holding Company and LMICPrimary Parties, and is a valid, legal and binding obligation of each of the Holding Company and LMICPrimary Parties, in each case enforceable in accordance with its terms, except as the legality, validity, binding nature and enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium, conservatorship, receivership or other similar laws relating to or affecting the enforcement of creditors’ rights generally; (ii) general equity principles regardless of whether such enforceability is considered in a proceeding in equity or at law; and (iii) the extent, if any, that the provisions of Sections 11 or and 12 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 savings institutions insured by the FDIC (including the laws relating to the rights of the contracting parties to equitable remedies).
(b) The Registration Statement was declared effective by the Commission on , 2008, ; and no stop order has been issued with respect thereto and no proceedings therefore related to the Prospectus have been initiated or, or to the best knowledge of the Primary Parties, Parties threatened by the Commission. At the time the Registration Statement (Statement, including the Prospectus contained therein) therein (including any amendment or supplement thereto), became effective, the Registration Statement (including the Prospectus contained therein) complied as to form in all material respects with the 1933 Act and the regulations promulgated thereunder 1933 Act Regulations, and the Registration Statement (Statement, including the Prospectus contained therein(including any amendment or supplement thereto), any Blue Sky Application or any Sales Information (as such terms are defined in Section 11 hereof) authorized by the Primary Parties for use in connection with the Offerings did not contain an any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. At the time any Rule 424(b) or (c) Prospectus was filed with the Commission and at the Closing Time referred to in Section 5, the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto), and any Blue Sky Application or any Sales Information (as such terms are defined in Section 11 hereof) authorized for use by any of the Primary Parties for use in connection with the Offerings Offerings, will not contain an any untrue statement of a material fact or omit to state a any 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; provided, however, that the representations and warranties in this Section 6(b) shall not apply to statements or omissions made in reliance upon and in conformity with written information furnished to the Primary Parties by the Agent expressly regarding the Agent for use under the captions “MARKET FOR THE COMMON STOCKMarket for the Common Stock” and “The CONVERSION – Marketing Conversion and Underwriting ArrangementsOffering—Plan of Distribution; Selling Agent Compensation” or written statements or omissions from for use in any Blue Sky Application Applications (as defined below) or any Sales InformationInformation (as defined below).
(c) At the time of filing the Registration Statement and at the date hereof, the Holding Company was not, and is not, an ineligible issuer, as defined in Rule 405. At the time of the filing of the Registration Statement and at the time of the use of any issuer free writing prospectus, as defined in Rule 433(h), the Holding Company met the conditions required by Rules 164 and 433 for the use of a free writing prospectus. If required to be filed, the Holding Company has filed any issuer free writing prospectus related to the offered Shares at the time it is required to be filed under Rule 433 and, if not required to be filed, will retain such free writing prospectus in the Holding Company’s records pursuant to Rule 433(g) and if any issuer free writing prospectus is used after the date hereof in connection with the offering of the Shares the Holding Company will file or retain such free writing prospectus as required by Rule 433.
(d) As of the Applicable Time (as hereinafter defineddefined below), neither (i) the Issuer-Issuer Represented General Free Writing Prospectus(es) (as defined below) issued at or prior to the Applicable Time and the Statutory ProspectusProspectus (as defined below), all considered together (collectively, the “General Disclosure Package”), nor (ii) any individual Issuer-Issuer Represented Limited-Limited Use Free Writing ProspectusProspectus (as defined below), when considered together with the General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from any Prospectus included in the Registration Statement relating to the offered Shares or any Issuer-Issuer Represented Free Writing Prospectus (as defined below) based upon and in conformity with written information furnished to the Primary Parties by the Agent specifically for use therein. As used in this paragraph and elsewhere in this Agreement:
Appears in 1 contract
Representations and Warranties of the Primary Parties. The Primary Parties jointly and severally represent and warrant to the Agent that, except as disclosed in the Prospectus:
(a) The MHC, the Mid-Tier Holding Company, the Holding Company and LMIC have and, as of the Closing Time, will Bank have all such power, authority, authorizations, approvals and orders as may be required to enter into this Agreement, and, as of the Closing Date, the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank will have all such power, authority, authorizations, approvals and orders as may be required to carry out the provisions and conditions hereof and to issue and sell the Offer Shares and to issue the Exchange Shares as provided herein and as described in the Prospectus. Subject to the receipt of member and regulatory approval, the The consummation of the Conversion and the ReorganizationConversion, the execution, delivery and performance of this Agreement and the Letter Agreement and the consummation of the transactions contemplated herein contemplated, have been duly and validly authorized by all necessary corporate action on the part of the MHC, the Mid-Tier Holding Company, the Holding Company and LMICthe Bank. This Agreement has been validly executed and delivered by the Holding Company and LMICPrimary Parties, and is a valid, legal and binding obligation of the Holding Company and LMICPrimary Parties, in each case enforceable in accordance with its terms, except as the legality, validity, binding nature and enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium, conservatorship, receivership or other similar laws relating to or affecting the enforcement of creditors’ rights generally; (ii) general equity principles regardless of whether such enforceability is considered in a proceeding in equity or at law; and (iii) the extent, if any, that the provisions of Sections 11 or and 12 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 savings institutions insured by the FDIC (including the laws relating to the rights of the contracting parties to equitable remedies).
(b) The Registration Statement was declared effective by the Commission on August ___, 2008, and no 2010. No stop order has been issued with respect thereto and no to the Registration Statement. No proceedings therefore related to the Registration Statement have been initiated or, to the best knowledge of the Primary Parties, threatened by the Commission. At the time the Registration Statement (Statement, including the Prospectus contained therein) therein (including any amendment or supplement thereto), became effective, the Registration Statement (including the Prospectus contained therein) complied as to form in all material respects with the 1933 Act and the regulations promulgated thereunder 1933 Act Regulations and the Registration Statement (Statement, including the Prospectus contained thereintherein (including any amendment or supplement thereto), any Blue Sky Application or any Sales Information (as such terms are defined in Section 11 hereof) authorized by the Primary Parties for use in connection with the Offering, did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. At the time any Rule 424(b) or (c) Prospectus was filed with the Commission and at the Closing Time Date referred to in Section 5, the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto)) and, and when taken together with the Prospectus, any Blue Sky Application (if applicable) or any Sales Information (as defined below) authorized for use by any of the Primary Parties for use in connection with the Offerings Offering, will 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; provided, however, that the representations and warranties in this Section 6(b) shall not apply to statements or omissions made in reliance upon and in conformity with written information furnished to the Primary Parties by the Agent expressly regarding the Agent for use under the captions “MARKET FOR THE COMMON STOCK” and caption “The CONVERSION Conversion Offering – Marketing and Underwriting ArrangementsPlan of Distribution; Selling Agent Compensation” or written statements or omissions from any Blue Sky Application sales information or any Sales Informationinformation filed pursuant to state securities or blue sky laws or regulations regarding the Agent.
(c) At the time of filing the Registration Statement and at the date hereof, the Holding Company was not, and is not, an ineligible issuer, as defined in Rule 405. At the time of the filing of the Registration Statement and at the time of the use of any issuer free writing prospectus, as defined in Rule 433(h), the Holding Company met the conditions required by Rules 164 and 433 for the use of a free writing prospectus. If required to be filed, the Holding Company has filed any issuer free writing prospectus related to the offered Offer Shares at the time it is required to be filed under Rule 433 and, if not required to be filed, will retain such free writing prospectus in the Holding Company’s records pursuant to Rule 433(g) and if any issuer free writing prospectus is used after the date hereof in connection with the offering of the Shares the Holding Company will file or retain such free writing prospectus as required by Rule 433.
(d) As of the Applicable Time (as hereinafter defined)Time, neither (i) the Issuer-Represented General Free Writing Prospectus(es) issued at or prior to the Applicable Time and the Statutory Prospectus, all considered together (collectively, the “General Disclosure Package”), nor (ii) any individual Issuer-Represented Limited-Use Free Writing Prospectus, when considered together with the General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from any Prospectus included in the Registration Statement relating to the offered Shares or any Issuer-Represented Free Writing Prospectus based upon and in conformity with written information furnished to the Primary Parties Holding Company by the Agent specifically for use therein. As used in this paragraph and elsewhere in this Agreement:
Appears in 1 contract
Representations and Warranties of the Primary Parties. The Primary Parties jointly and severally represent and warrant to the Agent that, except as disclosed in the Prospectus:
(a) The MHC, the Mid-Tier Holding Company, the Holding Company and LMIC have and, as of the Closing Time, will Bank have all such power, authority, authorizations, approvals and orders as may be required to enter into this Agreement, and, as of the Closing Date, the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank will have all such power, authority, authorizations, approvals and orders as may be required to carry out the provisions and conditions hereof and to issue and sell the Offer Shares and to issue the Exchange Shares as provided herein and as described in the Prospectus. Subject to the receipt of member and regulatory approval, the The consummation of the Conversion and the ReorganizationConversion, the execution, delivery and performance of this Agreement and the Letter Agreement and the consummation of the transactions contemplated herein contemplated, have been duly and validly authorized by all necessary corporate action on the part of the MHC, the Mid-Tier Holding Company, the Holding Company and LMICthe Bank. This Agreement has been validly executed and delivered by the Holding Company and LMICPrimary Parties, and is a valid, legal and binding obligation of the Holding Company and LMICPrimary Parties, in each case enforceable in accordance with its terms, except as the legality, validity, binding nature and enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium, conservatorship, receivership or other similar laws relating to or affecting the enforcement of creditors’ rights generally; (ii) general equity principles regardless of whether such enforceability is considered in a proceeding in equity or at law; and (iii) the extent, if any, that the provisions of Sections 11 or and 12 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 savings institutions insured by the FDIC (including the laws relating to the rights of the contracting parties to equitable remedies).
(b) The Registration Statement was declared effective by the Commission on August , 2008, and no 2013. No stop order has been issued with respect thereto and no to the Registration Statement. No proceedings therefore related to the Registration Statement have been initiated or, to the best knowledge of the Primary Parties, threatened by the Commission. At the time the Registration Statement (Statement, including the Prospectus contained therein) therein (including any amendment or supplement thereto), became effective, the Registration Statement (including the Prospectus contained therein) complied as to form in all material respects with the 1933 Act and the regulations promulgated thereunder 1933 Act Regulations and the Registration Statement (Statement, including the Prospectus contained thereintherein (including any amendment or supplement thereto), any Blue Sky Application, if applicable or any Sales Information (as such terms are defined in Section 11 hereof) authorized by the Primary Parties for use in connection with the Offering, did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. At the time any Rule 424(b) or (c) Prospectus was filed with the Commission and at the Closing Time Date referred to in Section 5, the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto)) and, and when taken together with the Prospectus, any Blue Sky Application (if applicable) or any Sales Information authorized for use by any of the Primary Parties for use in connection with the Offerings Offering, will 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; provided, however, that the representations and warranties in this Section 6(b) shall not apply to statements or omissions made in reliance upon and in conformity with written information furnished to the Primary Parties by the Agent expressly regarding the Agent for use under the captions “MARKET FOR THE COMMON STOCK” and caption “The CONVERSION – Conversion and Offering - Syndicated Community Offering; Marketing and Underwriting Arrangements” or written statements in or omissions from any Blue Sky Application sales information or any Sales Informationinformation filed pursuant to state securities or blue sky laws or regulations regarding the Agent.
(c) At the time of filing the Registration Statement and at the date hereof, the Holding Company was not, and is not, an ineligible issuer, as defined in Rule 405 of the 1933 Act (“Rule 405”). At the time of the filing of the Registration Statement and at the time of the use of any issuer free writing prospectus, as defined in Rule 433(h)) of the 1933 Act, the Holding Company met the conditions required by Rules 164 and 433 of the 1933 Act for the use of a free writing prospectus. If required to be filed, the Holding Company has filed any issuer free writing prospectus related to the offered Offer Shares at the time it is required to be filed under Rule 433 of the 1933 Act and, if not required to be filed, will retain such free writing prospectus in the Holding Company’s records pursuant to Rule 433(g) of the 1933 Act and if any issuer free writing prospectus is used after the date hereof in connection with the offering of the Shares the Holding Company will file or retain such free writing prospectus as required by Rule 433433 of the 1933 Act.
(d) As of the Applicable Time (as hereinafter defined)Time, neither (i) the Issuer-Represented General Free Writing Prospectus(es) issued at or prior to the Applicable Time and the Statutory Prospectus, all considered together (collectively, the “General Disclosure Package”), nor (ii) any individual Issuer-Represented Limited-Use Free Writing Prospectus, when considered together with the General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from any Prospectus included in the Registration Statement relating to the offered Offer Shares or any Issuer-Represented Free Writing Prospectus based upon and in conformity with written information furnished to the Primary Parties Holding Company by the Agent specifically for use therein. As used in this paragraph and elsewhere in this Agreement:
Appears in 1 contract
Representations and Warranties of the Primary Parties. The Primary Parties jointly and severally represent and warrant to the Agent that, except as disclosed in the Prospectus:
(a) The MHC, the Mid-Tier Holding Company, the Holding Company and LMIC have and, as of the Closing Time, will Bank have all such power, authority, authorizations, approvals and orders as may be required to enter into this Agreement, and, as of the Closing Date, the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank will have all such power, authority, authorizations, approvals and orders as may be required to carry out the provisions and conditions hereof and to issue and sell the Shares as provided herein and as described in the Prospectus. Subject to the receipt of member and regulatory approval, the The consummation of the Conversion and the ReorganizationConversion, the execution, delivery and performance of this Agreement and the Letter Agreement and the consummation of the transactions contemplated herein contemplated, have been duly and validly authorized by all necessary corporate action on the part of the MHC, the Mid-Tier Holding Company, the Holding Company and LMICthe Bank. This Agreement has been validly executed and delivered by the Holding Company and LMICPrimary Parties, and is a valid, legal and binding obligation of the Holding Company and LMICPrimary Parties, in each case enforceable in accordance with its terms, except as the legality, validity, binding nature and enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium, conservatorship, receivership or other similar laws relating to or affecting the enforcement of creditors’ rights generally; (ii) general equity principles regardless of whether such enforceability is considered in a proceeding in equity or at law; and (iii) the extent, if any, that the provisions of Sections 11 or and 12 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 savings institutions insured by the FDIC (including the laws relating to the rights of the contracting parties to equitable remedies).
(b) The Registration Statement was declared effective by the Commission on August 12, 2008, and no 2013. No stop order has been issued with respect thereto and no to the Registration Statement. No proceedings therefore related to the Registration Statement have been initiated or, to the best knowledge of the Primary Parties, threatened by the Commission. At the time the Registration Statement (Statement, including the Prospectus contained therein) therein (including any amendment or supplement thereto), became effective, the Registration Statement (including the Prospectus contained therein) complied as to form in all material respects with the 1933 Act and the regulations promulgated thereunder 1933 Act Regulations and the Registration Statement (Statement, including the Prospectus contained thereintherein (including any amendment or supplement thereto), any Blue Sky Application or any Sales Information (as such terms are defined in Section 11 hereof) authorized by the Primary Parties for use in connection with the Offering, did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. At the time any Rule 424(b) or (c) Prospectus was filed with the Commission and at the Closing Time Date referred to in Section 5, the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto)) and, and when taken together with the Prospectus, any Blue Sky Application (if applicable) or any Sales Information (as defined below) authorized for use by any of the Primary Parties for use in connection with the Offerings Offering, will 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; provided, however, that the representations and warranties in this Section 6(b) shall not apply to statements or omissions made in reliance upon and in conformity with written information furnished to the Primary Parties by the Agent expressly regarding the Agent for use under the captions “MARKET FOR THE COMMON STOCK” and caption “The CONVERSION Conversion and Offering – Marketing Plan of Distribution; Selling Agent and Underwriting ArrangementsUnderwriter Compensation” or written statements in or omissions from any Blue Sky Application Sales Information or any Sales Informationinformation filed pursuant to state securities or blue sky laws or regulations regarding the Agent.
(c) At the time of filing the Registration Statement and at the date hereof, the Holding Company was not, and is not, an ineligible issuer, as defined in Rule 405. At the time of the filing of the Registration Statement and at the time of the use of any issuer free writing prospectus, as defined in Rule 433(h), the Holding Company met the conditions required by Rules 164 and 433 for the use of a free writing prospectus. If required to be filed, the Holding Company has filed any issuer free writing prospectus related to the offered Offer Shares at the time it is required to be filed under Rule 433 and, if not required to be filed, will retain such free writing prospectus in the Holding Company’s records pursuant to Rule 433(g) and if any issuer free writing prospectus is used after the date hereof in connection with the offering of the Shares the Holding Company will file or retain such free writing prospectus as required by Rule 433.
(d) As of the Applicable Time (as hereinafter defined)Time, neither (i) the Issuer-Represented General Free Writing Prospectus(es) issued at or prior to the Applicable Time and the Statutory Prospectus, all considered together (collectively, the “General Disclosure Package”), nor (ii) any individual Issuer-Represented Limited-Use Free Writing Prospectus, when considered together with the General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from any Prospectus included in the Registration Statement relating to the offered Offer Shares or any Issuer-Represented Free Writing Prospectus based upon and in conformity with written information furnished to the Primary Parties Holding Company by the Agent specifically for use therein. As used in this paragraph and elsewhere in this Agreement:
Appears in 1 contract
Sources: Agency Agreement (AJS Bancorp, Inc.)
Representations and Warranties of the Primary Parties. The Primary Parties jointly and severally represent and warrant to the Agent that, except as disclosed in the Prospectus:
(a) The Holding Company and LMIC have and, as of the Closing Time, will Primary Parties have all such power, authority, authorizations, approvals and orders as may be required to enter into this Agreement, to carry out the provisions and conditions hereof and to issue and sell the Shares as provided herein and as described in the Prospectus, subject to the various limitations and required approvals described therein. Subject to the receipt of member depositor and regulatory approval, the consummation of the Conversion and the Reorganization, the execution, delivery and performance of this Agreement and the Letter Agreement and the consummation of the transactions herein contemplated, contemplated have been duly and validly authorized by all necessary corporate action on the part of the Holding Company and LMICPrimary Parties. This Agreement has been validly executed and delivered by the Holding Company and LMICPrimary Parties, and is a valid, legal and binding obligation of the Holding Company and LMICPrimary Parties, enforceable in accordance with its terms, except as the legality, validity, binding nature and enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium, conservatorship, receivership or other similar laws relating to or affecting the enforcement of creditors’ rights generally; (ii) general equity principles regardless of whether such enforceability is considered in a proceeding in equity or at law; and (iii) the extent, if any, that the provisions of Sections 10 and 11 or 12 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 savings institutions insured by the FDIC (including the laws relating to the rights of the contracting parties to equitable remedies).
(b) The Plan has been approved by the OTS.
(c) The Registration Statement was declared effective by the Commission on February , 2008, 2007; and no stop order has been issued with respect thereto and no proceedings therefore have been initiated or, to the best knowledge of the Primary Parties, threatened by the Commission. At the time the Registration Statement (Statement, including the Prospectus contained therein) therein (including any amendment or supplement thereto), became effective, the Registration Statement (including the Prospectus contained therein) complied as to form in all material respects with the 1933 Act and the regulations promulgated thereunder and the Registration Statement (Statement, including the Prospectus contained thereintherein (including any amendment or supplement thereto), any Blue Sky Application or any Sales Information (as such terms are defined in Section 10 hereof) authorized by the Primary Parties for use in connection with the Offering did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. At , and at the time any Rule 424(b) or (c) Prospectus was filed with the Commission and at the Closing Time Date referred to in Section 5, the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto), and any Blue Sky Application or any Sales Information authorized by the Primary Parties for use in connection with the Offerings Offering will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties in this Section 6(b6(c) shall not apply to statements or omissions made in reliance upon and in conformity with written information furnished to the Primary Parties by the Agent expressly regarding the Agent for use under the captions “MARKET FOR THE COMMON STOCKMarket for the Common Stock” and “The CONVERSION – Reorganization and Offering—Marketing and Underwriting Arrangements” or written statements or omissions from any Blue Sky Application sales information or any Sales Informationinformation filed pursuant to state securities or blue sky laws or regulations regarding the Agent.
(cd) At the time of filing the Registration Statement relating to the offering of the Shares and at the date hereof, the Holding Company was not, and is not, an ineligible issuer, as defined in Rule 405. At the time of the filing of the Registration Statement and at the time of the use of any issuer free writing prospectus, as defined in Rule 433(h), the Holding Company met the conditions required by Rules 164 and 433 for the use of a free writing prospectus. If required to be filed, the Holding Company has filed any issuer free writing prospectus related to the offered Shares at the time it is required to be filed under Rule 433 and, if not required to be filed, will retain such free writing prospectus in the Holding Company’s records pursuant to Rule 433(g) and if any issuer free writing prospectus is used after the date hereof in connection with the offering of the Shares the Holding Company will file or retain such free writing prospectus as required by Rule 433.
(de) As of the Applicable Time (as hereinafter defined)Time, neither (i) the Issuer-Represented General Free Writing Prospectus(es) issued at or prior to the Applicable Time and the Statutory Prospectus, all considered together (collectively, the “General Disclosure Package”), nor (ii) any individual Issuer-Represented Limited-Use Free Writing Prospectus, when considered together with the General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from any Prospectus included in the Registration Statement relating to the offered Shares or any Issuer-Represented Free Writing Prospectus based upon and in conformity with written information furnished to the Primary Parties Company by the Agent specifically for use therein. As used in this paragraph and elsewhere in this Agreement:
Appears in 1 contract
Sources: Agency Agreement (CMS Bancorp, Inc.)
Representations and Warranties of the Primary Parties. The Primary Parties jointly and severally represent and warrant to the Agent that, except as disclosed in the Prospectus:
(a) The MHC, the Holding Company and LMIC have and, as of the Closing Time, will Bank have all such power, authority, authorizations, approvals and orders as may be required to enter into this Agreement, and, as of the Closing Date, the MHC, the Holding Company and the Bank will have all such power, authority, authorizations, approvals and orders as may be required to carry out the provisions and conditions hereof and to issue and sell the Offer Shares as provided herein and as described in the Prospectus. Subject to the receipt of member and regulatory approval, the The consummation of the Conversion and the ReorganizationOffering, the execution, delivery and performance of this Agreement and the Letter Agreement and the consummation of the transactions contemplated herein contemplated, have been duly and validly authorized by all necessary corporate action on the part of the MHC, the Holding Company and LMICthe Bank. This Agreement has been validly executed and delivered by the Holding Company and LMICPrimary Parties, and is a valid, legal and binding obligation of the Holding Company and LMICPrimary Parties, in each case enforceable in accordance with its terms, except as the legality, validity, binding nature and enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium, conservatorship, receivership or other similar laws relating to or affecting the enforcement of creditors’ rights generally; (ii) general equity principles regardless of whether such enforceability is considered in a proceeding in equity or at law; and (iii) the extent, if any, that the provisions of Sections 11 or and 12 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 savings institutions insured by the FDIC (including the laws relating to the rights of the contracting parties to equitable remedies).
(b) The Registration Statement was declared effective by the Commission on _________________, 2008, and no 2010. No stop order has been issued with respect thereto and no to the Registration Statement. No proceedings therefore related to the Registration Statement have been initiated or, to the best knowledge of the Primary Parties, threatened by the Commission. At the time the Registration Statement (Statement, including the Prospectus contained therein) therein (including any amendment or supplement thereto), became effective, the Registration Statement (including the Prospectus contained therein) complied as to form in all material respects with the 1933 Act and the regulations promulgated thereunder 1933 Act Regulations and the Registration Statement (Statement, including the Prospectus contained thereintherein (including any amendment or supplement thereto), any Blue Sky Application or any Sales Information (as such terms are defined in Section 11 hereof) authorized by the Primary Parties for use in connection with the Offering, did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. At the time any Rule 424(b) or (c) Prospectus was filed with the Commission and at the Closing Time Date referred to in Section 5, the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto)) and, and when taken together with the Prospectus, any Blue Sky Application (if applicable) or any Sales Information (as defined below) authorized for use by any of the Primary Parties for use in connection with the Offerings Offering, will 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; provided, however, that the representations and warranties in this Section 6(b) shall not apply to statements or omissions made in reliance upon and in conformity with written information furnished to the Primary Parties by the Agent expressly regarding the Agent for use under the captions “MARKET FOR THE COMMON STOCK” and caption “The CONVERSION – Stock Offering - Marketing and Underwriting Arrangements” or written statements or omissions from any Blue Sky Application sales information or any Sales Informationinformation filed pursuant to state securities or blue sky laws or regulations regarding the Agent.
(c) At the time of filing the Registration Statement and at the date hereof, the Holding Company was not, and is not, an ineligible issuer, as defined in Rule 405. At the time of the filing of the Registration Statement and at the time of the use of any issuer free writing prospectus, as defined in Rule 433(h), the Holding Company met the conditions required by Rules 164 and 433 for the use of a free writing prospectus. If required to be filed, the Holding Company has filed any issuer free writing prospectus related to the offered Offer Shares at the time it is required to be filed under Rule 433 and, if not required to be filed, will retain such free writing prospectus in the Holding Company’s records pursuant to Rule 433(g) and if any issuer free writing prospectus is used after the date hereof in connection with the offering of the Offer Shares the Holding Company will file or retain such free writing prospectus as required by Rule 433.
(d) As of the Applicable Time (as hereinafter defined)Time, neither (i) the Issuer-Represented General Free Writing Prospectus(es) issued at or prior to the Applicable Time and the Statutory Prospectus, all considered together (collectively, the “General Disclosure Package”), nor (ii) any individual Issuer-Represented Limited-Use Free Writing Prospectus, when considered together with the General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from any Prospectus included in the Registration Statement relating to the offered Offer Shares or any Issuer-Represented Free Writing Prospectus based upon and in conformity with written information furnished to the Primary Parties Holding Company by the Agent specifically for use therein. As used in this paragraph and elsewhere in this Agreement:
Appears in 1 contract
Representations and Warranties of the Primary Parties. The Primary Parties jointly and severally represent and warrant to the Agent that, except as disclosed in the Prospectus:
(a) The MHC, the Holding Company and LMIC have and, as of the Closing Time, will Bank have all such power, authority, authorizations, approvals and orders as may be required to enter into this Agreement, and, as of the Closing Date, the MHC, the Holding Company and the Bank will have all such power, authority, authorizations, approvals and orders as may be required to carry out the provisions and conditions hereof and to issue and sell the Conversion Shares as provided herein and as described in the Prospectus. Subject to the receipt of member and regulatory approval, the The consummation of the Conversion and the ReorganizationConversion, the execution, delivery and performance of this Agreement and the Letter Agreement and the consummation of the transactions herein contemplatedcontemplated herein, including the establishment and funding of the Foundation, have been duly and validly authorized by all necessary corporate action on the part of the MHC, the Holding Company and LMICthe Bank. This Agreement has been validly executed and delivered by the Holding Company and LMICPrimary Parties, and is a valid, legal and binding obligation of the Holding Company and LMICPrimary Parties, in each case enforceable in accordance with its terms, except as the legality, validity, binding nature and enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium, conservatorship, receivership or other similar laws relating to or affecting the enforcement of creditors’ rights generally; (ii) general equity principles regardless of whether such enforceability is considered in a proceeding in equity or at law; and (iii) the extent, if any, that the provisions of Sections 11 or and 12 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 savings institutions insured by the FDIC (including the laws relating to the rights of the contracting parties to equitable remedies).
(b) The Registration Statement was declared effective by the Commission on August ___, 2008, and no 2010. No stop order has been issued with respect thereto and no to the Registration Statement. No proceedings therefore related to the Registration Statement have been initiated or, to the best knowledge of the Primary Parties, threatened by the Commission. At the time the Registration Statement (Statement, including the Prospectus contained therein) therein (including any amendment or supplement thereto), became effective, the Registration Statement (including the Prospectus contained therein) complied as to form in all material respects with the 1933 Act and the regulations promulgated thereunder 1933 Act Regulations and the Registration Statement (Statement, including the Prospectus contained thereintherein (including any amendment or supplement thereto), any Blue Sky Application or any Sales Information (as such terms are defined in Section 11 hereof) authorized by the Primary Parties for use in connection with the Offering, did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. At the time any Rule 424(b) or (c) Prospectus was filed with the Commission and at the Closing Time Date referred to in Section 5, the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto)) and, and when taken together with the Prospectus, any Blue Sky Application (if applicable) or any Sales Information (as defined below) authorized for use by any of the Primary Parties for use in connection with the Offerings Offering, will 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; provided, however, that the representations and warranties in this Section 6(b) shall not apply to statements or omissions made in reliance upon and in conformity with written information furnished to the Primary Parties by the Agent expressly regarding the Agent for use under the captions “MARKET FOR THE COMMON STOCK” and caption “The CONVERSION – Conversion — Marketing and Underwriting ArrangementsDistribution; Compensation” or written statements in or omissions from any Blue Sky Application sales information or any Sales Informationinformation filed pursuant to state securities or blue sky laws or regulations regarding the Agent.
(c) At the time of filing the Registration Statement and at the date hereof, the Holding Company was not, and is not, an ineligible issuer, as defined in Rule 405. At the time of the filing of the Registration Statement and at the time of the use of any issuer free writing prospectus, as defined in Rule 433(h), the Holding Company met the conditions required by Rules 164 and 433 for the use of a free writing prospectus. If required to be filed, the Holding Company has filed any issuer free writing prospectus related to the offered Subscription Shares at the time it is required to be filed under Rule 433 and, if not required to be filed, will retain such free writing prospectus in the Holding Company’s records pursuant to Rule 433(g) and if any issuer free writing prospectus is used after the date hereof in connection with the offering of the Subscription Shares the Holding Company will file or retain such free writing prospectus as required by Rule 433.
(d) As of the Applicable Time (as hereinafter defined)Time, neither (i) the Issuer-Represented General Free Writing Prospectus(es) issued at or prior to the Applicable Time and the Statutory Prospectus, all considered together (collectively, the “General Disclosure Package”), nor (ii) any individual Issuer-Represented Limited-Use Free Writing Prospectus, when considered together with the General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from any Prospectus included in the Registration Statement relating to the offered Subscription Shares or any Issuer-Represented Free Writing Prospectus based upon and in conformity with written information furnished to the Primary Parties Holding Company by the Agent specifically for use therein. As used in this paragraph and elsewhere in this Agreement:
Appears in 1 contract
Representations and Warranties of the Primary Parties. The Primary Parties jointly and severally represent and warrant to the Agent that, except as disclosed in the Prospectus:
(a) The MHC, the Mid-Tier Holding Company, the Holding Company and LMIC have and, as of the Closing Time, will Bank have all such power, authority, authorizations, approvals and orders as may be required to enter into this Agreement, and, as of the Closing Date, the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank will have all such power, authority, authorizations, approvals and orders as may be required to carry out the provisions and conditions hereof and to issue and sell the Offer Shares and to issue the Exchange Shares as provided herein and as described in the Prospectus. Subject to the receipt of member and regulatory approval, the The consummation of the Conversion and the ReorganizationConversion, the execution, delivery and performance of this Agreement and the Letter Agreement and the consummation of the transactions contemplated herein contemplated, have been duly and validly authorized by all necessary corporate action on the part of the MHC, the Mid-Tier Holding Company, the Holding Company and LMICthe Bank. This Agreement has been validly executed and delivered by the Holding Company and LMICPrimary Parties, and is a valid, legal and binding obligation of the Holding Company and LMICPrimary Parties, in each case enforceable in accordance with its terms, except as the legality, validity, binding nature and enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium, conservatorship, receivership or other similar laws relating to or affecting the enforcement of creditors’ rights generally; (ii) general equity principles regardless of whether such enforceability is considered in a proceeding in equity or at law; and (iii) the extent, if any, that the provisions of Sections 11 or and 12 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 savings institutions insured by the FDIC (including the laws relating to the rights of the contracting parties to equitable remedies).
(b) The Registration Statement was declared effective by the Commission on , 2008, and no [SEC effective date]. No stop order has been issued with respect thereto and no to the Registration Statement. No proceedings therefore related to the Registration Statement have been initiated or, to the best knowledge of the Primary Parties, threatened by the Commission. At the time the Registration Statement (Statement, including the Prospectus contained therein) therein (including any amendment or supplement thereto), became effective, the Registration Statement (including the Prospectus contained therein) complied as to form in all material respects with the 1933 Act and the regulations promulgated thereunder 1933 Act Regulations and the Registration Statement (Statement, including the Prospectus contained thereintherein (including any amendment or supplement thereto), any Blue Sky Application or any Sales Information (as such terms are defined in Section 11 hereof) authorized by the Primary Parties for use in connection with the Offering, did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. At the time any Rule 424(b) or (c) Prospectus was filed with the Commission and at the Closing Time Date referred to in Section 5, the Registration Statement, including the Prospectus contained therein (including any amendment, post-effective amendment required by the Public Offering or supplement thereto)) and, and when taken together with the Prospectus, any Blue Sky Application (if applicable) or any Sales Information authorized for use by any of the Primary Parties for use in connection with the Offerings Offering, will 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; provided, however, that the representations and warranties in this Section 6(b) shall not apply to statements or omissions made in reliance upon and in conformity with written information furnished to the Primary Parties by the Agent expressly regarding the Agent for use under the captions “MARKET FOR THE COMMON STOCK” and caption “The CONVERSION Conversion and Offering – Marketing and Underwriting Arrangements” or written statements or omissions from any Blue Sky Application sales information or any Sales Informationinformation filed pursuant to state securities or blue sky laws or regulations regarding the Agent.
(c) At the time of filing the Registration Statement and at the date hereof, the Holding Company was not, and is not, an ineligible issuer, as defined in Rule 405 of the 1933 Act (“Rule 405”). At the time of the filing of the Registration Statement and at the time of the use of any issuer free writing prospectus, as defined in Rule 433(h)) of the 1933 Act, the Holding Company met the conditions required by Rules 164 and 433 of the 1933 Act for the use of a free writing prospectus. If required to be filed, the Holding Company has filed any issuer free writing prospectus related to the offered Offer Shares at the time it is required to be filed under Rule 433 of the 1933 Act and, if not required to be filed, will retain such free writing prospectus in the Holding Company’s records pursuant to Rule 433(g) of the 1933 Act and if any issuer free writing prospectus is used after the date hereof in connection with the offering of the Shares the Holding Company will file or retain such free writing prospectus as required by Rule 433433 of the 1933 Act.
(d) As of the Applicable Time (as hereinafter defined)Time, neither (i) the Issuer-Represented General Free Writing Prospectus(es) issued at or prior to the Applicable Time and the Statutory Prospectus, all considered together (collectively, the “General Disclosure Package”), nor (ii) any individual Issuer-Represented Limited-Use Free Writing Prospectus, when considered together with the General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from any Prospectus included in the Registration Statement relating to the offered Offer Shares or any Issuer-Represented Free Writing Prospectus based upon and in conformity with written information furnished to the Primary Parties Holding Company by the Agent specifically for use therein. As used in this paragraph and elsewhere in this Agreement:
Appears in 1 contract
Representations and Warranties of the Primary Parties. The Primary Parties jointly and severally represent and warrant to the Agent Agents that, except as disclosed in the Prospectus:
(a) The MHC, the Mid-Tier Holding Company, the Holding Company and LMIC have and, as of the Closing Time, will Bank have all such power, authority, authorizations, approvals and orders as may be required to enter into this Agreement, and, as of the Closing Date, the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank will have all such power, authority, authorizations, approvals and orders as may be required to carry out the provisions and conditions hereof and to issue and sell the Offer Shares and to issue the Exchange Shares as provided herein and as described in the Prospectus. Subject to the receipt of member and regulatory approval, the The consummation of the Conversion and the ReorganizationConversion, the execution, delivery and performance of this Agreement and the Letter Agreement and the consummation of the transactions contemplated herein contemplated, have been duly and validly authorized by all necessary corporate action on the part of the MHC, the Mid-Tier Holding Company, the Holding Company and LMICthe Bank. This Agreement has been validly executed and delivered by the Holding Company and LMICPrimary Parties, and is a valid, legal and binding obligation of the Holding Company and LMICPrimary Parties, in each case enforceable in accordance with its terms, except as the legality, validity, binding nature and enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium, conservatorship, receivership or other similar laws relating to or affecting the enforcement of creditors’ rights generally; (ii) general equity principles regardless of whether such enforceability is considered in a proceeding in equity or at law; and (iii) the extent, if any, that the provisions of Sections 11 or and 12 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 savings institutions insured by the FDIC (including the laws relating to the rights of the contracting parties to equitable remedies).
(b) The Registration Statement was declared effective by the Commission on , 2008, and no [SEC effective date]. No stop order has been issued with respect thereto and no to the Registration Statement. No proceedings therefore related to the Registration Statement have been initiated or, to the best knowledge of the Primary Parties, threatened by the Commission. At the time the Registration Statement (Statement, including the Prospectus contained therein) therein (including any amendment or supplement thereto), became effective, the Registration Statement (including the Prospectus contained therein) complied as to form in all material respects with the 1933 Act and the regulations promulgated thereunder 1933 Act Regulations and the Registration Statement (Statement, including the Prospectus contained thereintherein (including any amendment or supplement thereto), any Blue Sky Application or any Sales Information (as such terms are defined in Section 11 hereof) authorized by the Primary Parties for use in connection with the Offering, did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. At the time any Rule 424(b) or (c) Prospectus was filed with the Commission and at the Closing Time Date referred to in Section 5, the Registration Statement, including the Prospectus contained therein (including any amendment, post-effective amendment required by the Public Offering or supplement thereto)) and, and when taken together with the Prospectus, any Blue Sky Application (if applicable) or any Sales Information authorized for use by any of the Primary Parties for use in connection with the Offerings Offering, will 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; provided, however, that the representations and warranties in this Section 6(b) shall not apply to statements or omissions made in reliance upon and in conformity with written information furnished to the Primary Parties by the Agent Agents expressly regarding the Agent Agents for use under the captions “MARKET FOR THE COMMON STOCK” and caption “The CONVERSION – Marketing Conversion and Underwriting ArrangementsOffering - Plan of Distribution; Selling Agent and Underwriter Compensation” or written statements or omissions from any Blue Sky Application sales information or any Sales Informationinformation filed pursuant to state securities or blue sky laws or regulations regarding the Agents.
(c) At the time of filing the Registration Statement and at the date hereof, the Holding Company was not, and is not, an ineligible issuer, as defined in Rule 405 of the 1933 Act (“Rule 405”). At the time of the filing of the Registration Statement and at the time of the use of any issuer free writing prospectus, as defined in Rule 433(h)) of the 1933 Act, the Holding Company met the conditions required by Rules 164 and 433 of the 1933 Act for the use of a free writing prospectus. If required to be filed, the Holding Company has filed any issuer free writing prospectus related to the offered Offer Shares at the time it is required to be filed under Rule 433 of the 1933 Act and, if not required to be filed, will retain such free writing prospectus in the Holding Company’s records pursuant to Rule 433(g) of the 1933 Act and if any issuer free writing prospectus is used after the date hereof in connection with the offering of the Shares the Holding Company will file or retain such free writing prospectus as required by Rule 433433 of the 1933 Act.
(d) As of the Applicable Time (as hereinafter defined)Time, neither (i) the Issuer-Represented General Free Writing Prospectus(es) issued at or prior to the Applicable Time and the Statutory Prospectus, all considered together (collectively, the “General Disclosure Package”), nor (ii) any individual Issuer-Represented Limited-Use Free Writing Prospectus, when considered together with the General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from any Prospectus included in the Registration Statement relating to the offered Offer Shares or any Issuer-Represented Free Writing Prospectus based upon and in conformity with written information furnished to the Primary Parties Holding Company by the Agent Agents specifically for use therein. As used in this paragraph and elsewhere in this Agreement:
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