Representations and Warranties of the Primary Parties. The Primary Parties jointly and severally represent and warrant to the Agent that: (a) Each of the 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. The consummation of the Conversion, the execution, delivery and performance of this Agreement, the Engagement Letter and the Conversion Agent Engagement Letter and the consummation of the transactions contemplated herein 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 Primary Parties. This Agreement has been validly executed and delivered by each of the Primary Parties, and is a valid, legal and binding obligation of each of the Primary 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 Section 12 or Section 13 hereof may be unenforceable as against public policy. (b) The Registration Statement was declared effective by the Commission on , 2022, no stop order has been issued with respect thereto and no proceedings related thereto have been initiated or, to the knowledge of the Primary Parties, threatened by the Commission. At the time the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto), became effective, the Registration Statement complied as to form in all material respects with the 1933 Act and the 1933 Act Regulations, and the Registration Statement and the Prospectus 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 is filed with the Commission and at the Closing Date, the Registration Statement, including the Prospectus (including any amendment or supplement thereto) and, when taken together with the Prospectus, any Blue Sky Application or Sales Information (as such terms are defined in Section 12 hereof) authorized by any of the Primary Parties for use in connection with the 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 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 caption “The Conversion and Plan of Distribution—Marketing and Distribution; 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 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 (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. (d) 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 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 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 Company was not, and is not, an ineligible issuer (as defined in Rule 405 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 (as defined in Rule 433(h) of the 1933 Act Regulations), the 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 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 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 Company will file or retain such free writing prospectus as required by Rule 433 of the 1933 Act Regulations. (f) The Bank and the Company have filed the Applications with the Federal Reserve, the FDIC and the Division 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 Division, as applicable, of their approvals or non-objections, as applicable of each of the 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 Division 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 Division 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 Division 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 Applications complied and will comply in all material respects with the applicable provisions of the Conversion Regulations. (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, 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 by the 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 an independent valuation of the Common Stock of the Company as of February 18, 2022 (as amended or supplemented, if so amended or supplemented) (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 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) ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, 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 and each subsidiary thereof, an independent certified public accountant as required by the 1933 Act and the 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 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 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 included in the Prospectus, and as to the pro forma adjustments, the adjustments made therein have been consistently applied on the basis described therein. (l) Since the respective dates as of which information is given in the Registration Statement and the 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 material increase in the long-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 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. (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 Massachusetts 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 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. (n) The Bank maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets, (iii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accounts or assets are compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any difference. (o) The books, records and accounts and systems of internal accounting control of the Bank comply in all material respects with the requirements of Section 13(b)(2) of the 1934 Act. The Company will establish as of the Closing Date and maintain thereafter to the extent required by applicable regulations, “disclosure controls and procedures” (as defined in
Appears in 1 contract
Representations and Warranties of the Primary Parties. The Primary Parties jointly and severally represent and warrant to the Agent that:
(a) Each of the 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. The consummation of the ConversionConversion Merger, the execution, delivery and performance of this Agreement, the Engagement Letter Agreement and the Conversion Agent Engagement Letter Agreement and the consummation of the transactions contemplated herein have beenbeen duly and validly authorized by all necessary corporate action on the part of the Primary Parties and, or will be as of the Closing Date, will have been duly and validly 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 Primary Parties, and is a valid, legal and binding obligation of each of the Primary Parties, in each case enforceable in accordance with its terms, except to the extent, if any, that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the legality, validity, binding nature and extent that such enforceability thereof may be limited by (i) bankruptcybankruptcy laws, insolvencyinsolvency laws, moratorium, reorganization, conservatorship, receivership or other similar laws relating to or affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured financial institutions and their holding companies, by the Federal Deposit Insurance Corporation (iithe “FDIC”) general equity principles regardless (including the laws relating to the rights of whether such enforceability is considered in a proceeding in equity or at law, and (iii) the extent, if any, that the provisions of Section 12 or Section 13 hereof may be unenforceable as against public policycontracting parties to equitable remedies).
(b) The Registration Statement was declared effective by the Commission on , 2022, no 2011. No stop order has been issued with respect thereto and no to the Registration Statement. No proceedings related thereto to the Registration Statement have been initiated or, to the knowledge of the Primary Fairmount Parties, threatened by the Commission. At the time the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto), became effective, the Registration Statement complied as to form in all material respects with the 1933 Act and the 1933 Act Regulations, Regulations and the Registration Statement and 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 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 is was filed with the Commission and at the Closing DateDate referred to in Section 5, the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto) and, when taken together with the Prospectus, any Blue Sky Application (if applicable) or Sales Information (as such terms are defined in Section 12 hereofbelow) authorized for use by any of the Primary Parties for use in connection with the 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 caption “The Conversion and Offering – Plan of Distribution—Marketing and Distribution; Selling Agent Compensation” 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.”
(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 (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.
(d) 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 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 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 405 of the 1933 Act Regulations)405. 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 433 of the 1933 Act Regulations433.
(fd) The Bank and the Company have filed the Applications with the Federal Reserve, the FDIC and the Division 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 Division, as applicable, of their approvals or non-objections, as applicable of each As of the ApplicationsApplicable Time, 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 Division 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 Division 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 Division 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 Applications complied and will comply in all material respects with the applicable provisions of the Conversion Regulations.
(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, 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 by the 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.
neither (i) RP Financialthe Issuer-Represented General Free Writing Prospectus(es) issued at or prior to the Applicable Time and the Statutory Prospectus, LC.all considered together (collectively, which prepared an independent valuation of the Common Stock of the Company as of February 18, 2022 (as amended or supplemented, if so amended or supplemented) (the “AppraisalGeneral Disclosure Package”), has advised nor (ii) any individual Issuer-Represented Limited-Use Free Writing Prospectus, when considered together with the Primary Parties General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in writing that it is independent with respect order to each make the statements therein, in the light of the Primary Parties within the meaning of applicable banking regulationscircumstances under which they were made, 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) ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, 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 and each subsidiary thereof, an independent certified public accountant as required by the 1933 Act and the 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 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 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 GAAPmisleading. The other financial, statistical and pro forma information and related notes preceding sentence does not apply to statements in or omissions from any Prospectus 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 consistently applied on the basis described therein.
(l) Since the respective dates as of which information is given in the Registration Statement and relating to the 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 material increase in the long-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 offered Shares 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 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 Issuer-Represented Free Writing Prospectus based upon 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.
(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 Massachusetts 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 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.
(n) The Bank maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets, (iii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accounts or assets are compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any difference.
(o) The books, records and accounts and systems of internal accounting control of the Bank comply in all material respects with the requirements of Section 13(b)(2) of the 1934 Act. The Company will establish as of the Closing Date and maintain thereafter written information furnished to the extent required Holding Company by applicable regulations, “disclosure controls the Agent specifically for use therein. As used in this paragraph and procedures” (as defined inelsewhere 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:
(a) Each of the 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. The consummation of the Conversion, the execution, delivery and performance of this Agreement, the Engagement Letter and the Conversion Agent Engagement Letter and the consummation of the transactions contemplated herein 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 Primary Parties. This Agreement has been validly executed and delivered by each of the Primary Parties, and is a valid, legal and binding obligation of each of the Primary 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 Section 12 or Section 13 hereof may be unenforceable as against public policy.
(b) The Registration Statement was declared effective by the Commission on [___________], 20222021, no stop order has been issued with respect thereto and no proceedings related thereto have been initiated or, to the knowledge of the Primary Parties, threatened by the Commission. At the time the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto), became effective, the Registration Statement complied as to form in all material respects with the 1933 Act and the 1933 Act Regulations, and the Registration Statement and the Prospectus 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 is filed with the Commission and at the Closing Date, the Registration Statement, including the Prospectus (including any amendment or supplement thereto) and, when taken together with the Prospectus, any Blue Sky Application or Sales Information (as such terms are defined in Section 12 hereof) authorized by any of the Primary Parties for use in connection with the 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 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 caption “The Conversion and Offering—Plan of Distribution; Selling Agent and Underwriter Compensation,” “The Conversion and Offering—Marketing and Distribution; CompensationRecords Management” 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 (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.
(d) 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 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 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 Company was not, and is not, an ineligible issuer (as defined in Rule 405 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 (as defined in Rule 433(h) of the 1933 Act Regulations), the 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 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 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 Company will file or retain such free writing prospectus as required by Rule 433 of the 1933 Act Regulations.
(f) The Bank and the Company have has filed the Applications with the Federal Reserve, the FDIC and the Division Reserve and the Applications are accurate and complete in all material respects. The Company and the Bank have has received written notice from the Federal Reserve, the FDIC and the Division, as applicable, Reserve of their approvals or non-objections, as applicable its approval of each of the 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 Division Reserve 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 Division 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 Division Reserve in approving any either of the Applications pursuant to applicable statutes or regulations. At the date of such approvals or non-objections approval and as of the Closing Date, the Applications complied and will comply in all material respects with the applicable provisions of HOLA and the Conversion Regulations.
(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, 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 Parties, and the Plan is subject to approval by the Depositors Members of the BankMHC; 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.LLC, which prepared an independent valuation of the Common Stock of the Company as of February 188, 2022 2021 (as amended or supplemented, if so amended or supplemented) (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 applicable banking regulations, and the Primary Parties believe RP ▇▇▇▇▇ Financial, LC., LLC to be expert in the valuation and appraisal of savings institutions, and the Primary Parties believe that RP ▇▇▇▇▇ Financial, LC. LLC has prepared the Appraisal information set forth in the Prospectus in accordance with the requirements of any applicable banking regulations.
(j) ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇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 and each subsidiary thereof, an independent certified public accountant as required by the 1933 Act and the 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 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 Bank Mid-Tier Holding Company with the FDICFederal Reserve Board, 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 Mid-Tier Holding Company included in the Prospectus, and as to the pro forma adjustments, the adjustments made therein have been consistently applied on the basis described therein.
(l) Since the respective dates as of which information is given in the Registration Statement and the 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 material increase in the long-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 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.
(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 Massachusetts Wisconsin 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 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.
(n) The Bank maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets, (iii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accounts or assets are compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any difference.
(o) The books, records and accounts and systems of internal accounting control of the Bank comply in all material respects with the requirements of Section 13(b)(2) of the 1934 Act. The Mid-Tier Holding Company has established and will maintain through the Closing Date, and the Company will establish as of the Closing Date and maintain thereafter to the extent required by applicable regulations, “disclosure controls and procedures” (as defined indisclosur
Appears in 1 contract
Sources: Agency Agreement (1895 Bancorp of Wisconsin, Inc. /MD/)
Representations and Warranties of the Primary Parties. The Primary Parties jointly and severally represent and warrant to the Agent that:
(a) Each of the 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. The consummation of the Conversion, the execution, delivery and performance of this Agreement, the Engagement Letter and the Conversion Agent Engagement Letter and the consummation of the transactions contemplated herein 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 Primary Parties. This Agreement has been validly executed and delivered by each of the Primary Parties, and is a valid, legal and binding obligation of each of the Primary 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 Section 12 or Section 13 hereof may be unenforceable as against public policy.
(b) The Registration Statement was declared effective by the Commission on May 11, 20222021, no stop order has been issued with respect thereto and no proceedings related thereto have been initiated or, to the knowledge of the Primary Parties, threatened by the Commission. At the time the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto), became effective, the Registration Statement complied as to form in all material respects with the 1933 Act and the 1933 Act Regulations, and the Registration Statement and the Prospectus 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 is filed with the Commission and at the Closing Date, the Registration Statement, including the Prospectus (including any amendment or supplement thereto) and, when taken together with the Prospectus, any Blue Sky Application or Sales Information (as such terms are defined in Section 12 hereof) authorized by any of the Primary Parties for use in connection with the 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 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 caption “The Conversion and Offering—Plan of Distribution; Selling Agent and Underwriter Compensation,” “The Conversion and Offering—Marketing and Distribution; CompensationRecords Management” 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 (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.
(d) 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 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 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 Company was not, and is not, an ineligible issuer (as defined in Rule 405 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 (as defined in Rule 433(h) of the 1933 Act Regulations), the 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 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 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 Company will file or retain such free writing prospectus as required by Rule 433 of the 1933 Act Regulations.
(f) The Bank and the Company have has filed the Applications with the Federal Reserve, the FDIC and the Division Reserve and the Applications are accurate and complete in all material respects. The Company and the Bank have has received written notice from the Federal Reserve, the FDIC and the Division, as applicable, Reserve of their approvals or non-objections, as applicable its approval of each of the 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 Division Reserve 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 Division 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 Division Reserve in approving any either of the Applications pursuant to applicable statutes or regulations. At the date of such approvals or non-objections approval and as of the Closing Date, the Applications complied and will comply in all material respects with the applicable provisions of HOLA and the Conversion Regulations.
(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, 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 Parties, and the Plan is subject to approval by the Depositors Members of the BankMHC; 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.LLC, which prepared an independent valuation of the Common Stock of the Company as of February 188, 2022 2021 (as amended or supplemented, if so amended or supplemented) (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 applicable banking regulations, and the Primary Parties believe RP ▇▇▇▇▇ Financial, LC., LLC to be expert in the valuation and appraisal of savings institutions, and the Primary Parties believe that RP ▇▇▇▇▇ Financial, LC. LLC has prepared the Appraisal information set forth in the Prospectus in accordance with the requirements of any applicable banking regulations.
(j) ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇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 and each subsidiary thereof, an independent certified public accountant as required by the 1933 Act and the 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 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 Bank Mid-Tier Holding Company with the FDICFederal Reserve Board, 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 Mid-Tier Holding Company included in the Prospectus, and as to the pro forma adjustments, the adjustments made therein have been consistently applied on the basis described therein.
(l) Since the respective dates as of which information is given in the Registration Statement and the 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 material increase in the long-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 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.
(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 Massachusetts Wisconsin 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 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.
(n) The Bank maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets, (iii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accounts or assets are compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any difference.
(o) The books, records and accounts and systems of internal accounting control of the Bank comply in all material respects with the requirements of Section 13(b)(2) of the 1934 Act. The Mid-Tier Holding Company has established and will maintain through the Closing Date, and the Company will establish as of the Closing Date and maintain thereafter to the extent required by applicable regulations, “disclosure controls and procedures” (as defined incontr
Appears in 1 contract
Representations and Warranties of the Primary Parties. The Primary Parties jointly and severally represent and warrant to the Agent that:
(a) Each of the 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. The consummation of the Conversion, the execution, delivery and performance of this Agreement, the Engagement Letter and the Conversion Agent Engagement Letter and the consummation of the transactions contemplated herein 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 Primary Parties. This Agreement has been validly executed and delivered by each of the Primary Parties, and is a valid, legal and binding obligation of each of the Primary 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 Section 12 or Section 13 hereof may be unenforceable as against public policy.
(b) The Registration Statement was declared effective by the Commission on May 13, 2022, no stop order has been issued with respect thereto and no proceedings related thereto have been initiated or, to the knowledge of the Primary Parties, threatened by the Commission. At the time the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto), became effective, the Registration Statement complied as to form in all material respects with the 1933 Act and the 1933 Act Regulations, and the Registration Statement and the Prospectus 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 is filed with the Commission and at the Closing Date, the Registration Statement, including the Prospectus (including any amendment or supplement thereto) and, when taken together with the Prospectus, any Blue Sky Application or Sales Information (as such terms are defined in Section 12 hereof) authorized by any of the Primary Parties for use in connection with the 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 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 caption “The Conversion and Plan of Distribution—Marketing and Distribution; 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 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 (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.
(d) 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 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 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 Company was not, and is not, an ineligible issuer (as defined in Rule 405 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 (as defined in Rule 433(h) of the 1933 Act Regulations), the 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 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 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 Company will file or retain such free writing prospectus as required by Rule 433 of the 1933 Act Regulations.
(f) The Bank and the Company have filed the Applications with the Federal Reserve, the FDIC and the Division 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 Division, as applicable, of their approvals or non-objections, as applicable of each of the 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 Division 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 Division 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 Division 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 Applications complied and will comply in all material respects with the applicable provisions of the Conversion Regulations.
(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, 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 by the 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 an independent valuation of the Common Stock of the Company as of February 18, 2022 (as amended or supplemented, if so amended or supplemented) (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 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) ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, 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 and each subsidiary thereof, an independent certified public accountant as required by the 1933 Act and the 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 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 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 included in the Prospectus, and as to the pro forma adjustments, the adjustments made therein have been consistently applied on the basis described therein.
(l) Since the respective dates as of which information is given in the Registration Statement and the 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 material increase in the long-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 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.
(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 Massachusetts 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 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.
(n) The Bank maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets, (iii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accounts or assets are compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any difference.
(o) The books, records and accounts and systems of internal accounting control of the Bank comply in all material respects with the requirements of Section 13(b)(2) of the 1934 Act. The Company will establish as of the Closing Date and maintain thereafter to the extent required by applicable regulations, “disclosure controls and procedures” (as defined indefi
Appears in 1 contract
Representations and Warranties of the Primary Parties. The Primary Parties jointly and severally represent and warrant to the Agent that:
(a) Each of the 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. The consummation of the Conversion, the execution, delivery and performance of this Agreement, the Engagement Letter Agreement and the Conversion Agent Engagement Letter Agreement and the consummation of the transactions contemplated herein have beenbeen duly and validly authorized by all necessary corporate action on the part of the Primary Parties and, or will be as of the Closing Date, will have been duly and validly 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 Primary Parties, and is a valid, legal and binding obligation of each of the Primary Parties, in each case enforceable in accordance with its terms, except to the extent, if any, that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the legality, validity, binding nature and extent that such enforceability thereof may be limited by (i) bankruptcybankruptcy laws, insolvencyinsolvency laws, moratorium, reorganization, conservatorship, receivership or other similar laws relating to or affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured financial institutions and their holding companies, by the Federal Deposit Insurance Corporation (iithe “FDIC”) general equity principles regardless (including the laws relating to the rights of whether such enforceability is considered in a proceeding in equity or at law, and (iii) the extent, if any, that the provisions of Section 12 or Section 13 hereof may be unenforceable as against public policycontracting parties to equitable remedies).
(b) The Registration Statement was declared effective by the Commission on , 2022, no 2013. No stop order has been issued with respect thereto and no to the Registration Statement. No proceedings related thereto to the Registration Statement have been initiated or, to the knowledge of the Primary Parties, threatened by the Commission. At the time the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto), became effective, the Registration Statement complied as to form in all material respects with the 1933 Act and the 1933 Act Regulations, Regulations and the Registration Statement and 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 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 is was filed with the Commission and at the Closing DateDate referred to in Section 5, the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto) and, when taken together with the Prospectus, any Blue Sky Application (if applicable) or Sales Information (as such terms are defined in Section 12 hereofbelow) authorized for use by any of the Primary Parties for use in connection with the 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 caption “The Conversion and Plan of Distribution—Offering — Marketing and Distribution; Compensation” 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.”
(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 (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.
(d) 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 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 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 405 of 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 (prospectus, as defined in Rule 433(h) of under the 1933 Act Regulations), the Holding Company met the conditions required by Rules 164 and 433 of 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 of 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) 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 Shares, the Holding Company will file or retain such free writing prospectus as required by Rule 433 of under the 1933 Act Regulations.
(fd) The Bank and the Company have filed the Applications with the Federal Reserve, the FDIC and the Division 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 Division, as applicable, of their approvals or non-objections, as applicable of each As of the ApplicationsApplicable Time, 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 Division 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 Division 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 Division 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 Applications complied and will comply in all material respects with the applicable provisions of the Conversion Regulations.
(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, 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 by the 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.
neither (i) RP Financialthe Issuer-Represented General Free Writing Prospectus(es) issued at or prior to the Applicable Time and the Statutory Prospectus, LC.all considered together (collectively, which prepared an independent valuation of the Common Stock of the Company as of February 18, 2022 (as amended or supplemented, if so amended or supplemented) (the “AppraisalGeneral Disclosure Package”), has advised nor (ii) any individual Issuer-Represented Limited-Use Free Writing Prospectus, when considered together with the Primary Parties General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in writing that it is independent with respect order to each make the statements therein, in the light of the Primary Parties within the meaning of applicable banking regulationscircumstances under which they were made, 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) ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, 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 and each subsidiary thereof, an independent certified public accountant as required by the 1933 Act and the 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 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 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 GAAPmisleading. The other financial, statistical and pro forma information and related notes preceding sentence does not apply to statements in or omissions from any Prospectus 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 consistently applied on the basis described therein.
(l) Since the respective dates as of which information is given in the Registration Statement and relating to the 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 material increase in the long-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 offered Shares 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 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 Issuer-Represented Free Writing Prospectus based upon 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.
(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 Massachusetts 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 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.
(n) The Bank maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets, (iii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accounts or assets are compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any difference.
(o) The books, records and accounts and systems of internal accounting control of the Bank comply in all material respects with the requirements of Section 13(b)(2) of the 1934 Act. The Company will establish as of the Closing Date and maintain thereafter written information furnished to the extent required Holding Company by applicable regulations, “disclosure controls the Agent specifically for use therein. As used in this paragraph and procedures” (as defined inelsewhere 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:
(a) Each of the The Primary Parties has have 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 capital stock of the Bank to the Holding Company and the Shares to be sold by the Holding Company as provided herein and as described in the Prospectus. The consummation of the Conversion, the execution, delivery and performance of this Agreement, the Engagement Letter and the Conversion Agent Engagement Letter Agreement and the consummation of the transactions herein contemplated herein have been, or will be as of the Closing Date, been duly and validly authorized by all necessary corporate action on the part of each of the Primary Parties. This Holding Company and the Bank and this Agreement has been validly executed and delivered by each of the Primary Parties, Holding Company and the Bank and is a the valid, legal and binding obligation of each agreement of the Primary Parties, in each case Holding Company and 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, 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 Section 12 or Section 13 Sections 10 and 11 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) As of the Closing Date, the Bank shall have completed all conditions precedent to the Conversion in accordance with the Plan and shall have complied in all material respects with applicable laws, regulations (except as modified or waived in writing by the OTS), decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon it by the OTS as set forth in correspondence received from the OTS. The Plan has been approved by the OTS, and to the best knowledge of the Bank, no person has challenged or sought to obtain judicial review of the actions of the OTS in approving the Conversion pursuant to Section 5(i)(2)(B) of the HOLA or any other statute or regulation.
(c) 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.
(d) The MHC does not own any equity securities or any equity interest in any business enterprise except as described in the Prospectus.
(e) The MHC is not authorized to issue any shares of capital stock.
(f) The Registration Statement was declared effective by the Commission on , 2022, _____________________; and no stop order has been issued with respect thereto and no proceedings related thereto therefor have been initiated or, or to the best knowledge of the Primary Parties, Bank threatened by the Commission. At the time the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto), became effective, the Registration Statement complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations, regulations promulgated thereunder and the Registration Statement and 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 10 hereof) authorized by the Holding Company or the Bank 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 is was filed with or mailed to the Commission for filing and at the Closing DateDate referred to in Section 5, the Registration Statement, Statement including the Prospectus contained therein (including any amendment or supplement thereto) and, when taken together with the Prospectus, and any Blue Sky Application or any Sales Information (as such terms are defined in Section 12 hereof) authorized by any of the Primary Parties Holding Company or the Bank for use in connection with the Offering, 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) 6A shall not apply to statements or omissions made in reliance upon and in conformity with written information furnished to the Primary Parties Holding Company or the Bank by the Agent expressly regarding the Agent or its counsel for use in the Prospectus under the caption “"The Conversion and Plan of Distribution—- Marketing and Distribution; CompensationArrangements" 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.”
(cg) Any statistical and market related data contained in any Permitted Free Writing Prospectus (as hereinafter defined)The MHC Application, 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, including the Prospectus, or any Permitted Free Writing Prospectus (taken together with was approved by the Registration Statement OTS on ___________________; 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.
(d) None Proxy Statement 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 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 Primary Party’s website that may be deemed to be a prospectus, free writing prospectus or other offering material) in connection with the Offering Bank and the sale of Prospectus have been approved for use by the Shares, except for any Permitted Free Writing Prospectus.
(e) At the time of filing the Registration Statement and at the date hereof, the Company was not, and is not, an ineligible issuer (as defined in Rule 405 of the 1933 Act Regulations)OTS. At the time of the filing approval of the Registration Statement Application, including the Prospectus, by the OTS (including any amendment or supplement thereto) and at the time of the use of any issuer free writing prospectus (as defined in Rule 433(h) of the 1933 Act Regulations), the 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 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 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 Company will file or retain such free writing prospectus as required by Rule 433 of the 1933 Act Regulations.
(f) The Bank and the Company have filed the Applications with the Federal Reserve, the FDIC and the Division 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 Division, as applicable, of their approvals or non-objections, as applicable of each of the 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 Division 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 Division 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 Division in approving any of the Applications pursuant to applicable statutes or regulations. At the date of such approvals or non-objections and as of times subsequent thereto until the Closing Date, the Applications complied and Application, including the Prospectus, will comply as to form in all material respects with the Conversion Regulations and any other applicable provisions rules and regulations of the Conversion Regulations.the
(gh) No order has been issued by the OTS, the Commission or the FDIC (and hereinafter reference to the FDIC shall include the SAIF), or any state securities administrator regulatory authority, 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 oris, to the best knowledge of the Primary Parties, pending or threatened.
(hi) The At the Closing Date, the Plan has will have been approved adopted by the Board of Directors of each of the Primary Parties, the Primary Parties will have completed all conditions precedent to the Conversion specified in the Plan and by the 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, the Conversion Regulations (except as modified or waived in writing by the OTS) and with all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Holding Company or the Bank by the Federal ReserveOTS, 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. At the Closing Date, to the best knowledge of the Primary Parties, no person will have sought to obtain review of the final action of the OTS in approving the Plan or in approving the Conversion or the Holding Company Application pursuant to the HOLA or any other statute or regulation.
(ij) The Holding Company has filed with the OTS the Holding Company Application and has received, as of the Closing Date, approval of its acquisition of the Bank from the OTS.
(k) RP Financial, LC., which prepared an independent valuation of the Common Stock of the Company as of February 18, 2022 (as amended or supplemented, if so amended or supplemented) (the “Appraisal”)appraisal, has advised the Primary Parties Holding Company and the Bank 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 regulationsConversion Regulations.
(jl) ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇KPMG Peat Marwick, LLP which certified the audited financial statements filed as part of the Registration StatementStatement and the Application, has have advised the Primary Parties Holding Company and the Bank 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 isthey are, with respect to the Primary Parties Holding Company and each subsidiary thereofthe Bank, an independent certified public accountant as required by accountants within the meaning of 12 C.F.R. Sections 563c.3 and 571.2(c)(3) and under the 1933 Act and the 1933 Act Regulationsregulations promulgated thereunder.
(km) The financial statements, statements and the schedules and notes related thereto that which are included in the Registration Statement and which are a part of the Prospectus present fairly present in all material respects the financial condition, position and retained earnings of the Bank as of the dates indicated and the results of operations, equity operations and cash flows of the Bank at the respective dates indicated and for the respective periods covered thereby and specified. The financial statements 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 Regulations 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 on a consistent basis during the periods involved (presented except as otherwise noted in the notes to the financial statements), 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 FDIC, OTS and any other applicable regulatory authority, the FDIC 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 fairly 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 consistently properly applied on the basis described therein.
(ln) Since the respective dates as of which information is given in the Registration Statement and Statement, including the Prospectus, except as may otherwise be stated therein: (i) there has not been any material adverse change in the financial condition, results of operationscondition or in the earnings, capital, assets, properties, properties or business affairs or prospects of the Primary Parties, taken Holding Company or the Bank or of the Holding Company and the Bank considered as a wholeone enterprise, whether or not arising in the ordinary course of business; (ii) there has not been any material increase in the long-term debt of any of the Primary Parties or in the principal aggregate amount of the Bank’s assets that are classified as substandard, doubtful or loss or in loans past due 90 ninety (90) days or more or more, real estate acquired by foreclosure, by deed-in-lieu of foreclosure or deemed in-loans characterized as "in substance foreclosure foreclosure" or any material decrease change in equity capital or total assets of any of the Primary Parties, Bank in an amount greater than $10.0 million; nor have has the Primary Parties Bank issued any securities (other than in connection with the incorporation of the Company) or incurred any liability or obligation for borrowing borrowings other than in the ordinary course of business; (iii) there have not been any material transactions entered into by the Primary Parties that have not been disclosed Holding Company or the Bank, other than those in the Prospectusordinary course of business; and (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 Holding Company and the Bank conform in all material respects to the descriptions thereof contained in the Prospectus; (x) none of Prospectus and, neither the Primary Parties Bank nor the Holding Company has any material liabilities of any kind, contingent or other liabilitiesotherwise, except as set forth in or contemplated by the Registration Statement and the Prospectus; and (xi) there has been no dividend or distribution of any kind declared, paid or made by the Primary Parties.
(mo) At the Closing Date, the The Holding Company will be is a stock corporation duly organized and validly existing as a corporation in good standing under the laws of the State of MarylandDelaware, with corporate power and authority to own its properties and to conduct its business, business as described in the Prospectus, and will be is duly qualified to transact business and will be is in good standing in Massachusetts and in each jurisdiction in which the conduct of its business requires such qualification, 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 operationsearnings, capital, properties, properties or business affairs or prospects of the Primary Parties taken Holding Company and the Bank considered as a whole whole.
(p) The Bank is a “Material Adverse Effect”). On duly organized and validly existing federally chartered savings bank in mutual form and upon the Closing DateConversion will become a duly organized and validly existing federally chartered savings bank in stock form, in both instances duly authorized to conduct its business as described in the Company will have 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 then currently required for the conduct of its business, business except those that individually or in the aggregate would not be reasonably expected to have a Material Adverse Effect; and as materially adversely affect the financial condition of the Closing Date, Holding Company and the Bank taken as a whole; all such licenses, permits and other governmental authorizations will be are in full force and effect, 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 Conversion will be duly and validly issued and fully paid and nonassessable; and the Holding Company will be in compliance therewith in directly own all material respectsof such capital stock free and clear of any mortgage, and the Company will be in compliance in all material respects with all lawspledge, ruleslien, regulations and orders applicable to the operation of its businessencumbrance, claim or restriction. At the Closing Date, the Company will The Bank does not own equity securities or any equity interest in any other business enterprise except as described in the BankProspectus.
(nq) The Bank maintains is a system member of internal accounting controls sufficient the Federal Home Loan Bank of Pittsburgh ("FHLB of Pittsburgh"); the deposit accounts of the Bank are insured by the FDIC up to provide reasonable assurance that (i) transactions are executed applicable limits; and upon the Conversion, the liquidation account for the benefit of Eligible Account Holders and Supplemental Eligible Account Holders will be duly established in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets, (iii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accounts or assets are compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differenceConversion Regulations.
(or) The booksUpon Conversion, records the authorized, issued and accounts and systems of internal accounting control outstanding equity capital of the Bank comply Holding Company will be as described 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; 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 of Common Stock is not subject to preemptive rights; and the terms and provisions of the shares of Common Stock will conform in all material respects with to the requirements of Section 13(b)(2) description thereof contained in the Prospectus. Upon issuance of the 1934 Act. The Shares, good title to the Shares will be transferred from the Holding Company will establish to the purchaser thereof against payment therefor, subject to such claims as may be asserted against the purchasers thereof by third party claimants.
(s) As of the date hereof and as of the Closing Date Date, neither the MHC, the Holding Company nor the Bank is in violation of its certificate of incorporation or charter, respectively, or its bylaws (and maintain thereafter the Bank will not be in violation of its charter or bylaws in capital stock form as of the Closing Date) 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 it is a party or by which it, or any of its property, may be bound which would result in a material adverse change in the extent required by condition (financial or otherwise), earnings, capital, properties or business affairs of the Primary Parties considered as one enterprise or which would materially affect their properties or assets. The consummation of the transactions herein contemplated will not (i) conflict with or constitute a breach of, or default under, the certificate of incorporation and bylaws of the Holding Company, the charter and bylaws of the Bank (in either mutual or capital stock form), the certificate of incorporation and bylaws of the MHC or materially conflict with or constitute a material breach of, or default under any material contract, lease or other instrument to which the Primary Parties have a beneficial interest, or any applicable regulationslaw, “disclosure controls and procedures” (as defined inrule, regulation or order that is
Appears in 1 contract
Representations and Warranties of the Primary Parties. The Primary Parties jointly and severally represent and warrant to the Agent that:
(a) Each of the 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. The consummation of the Conversion, the execution, delivery and performance of this Agreement, the Engagement Letter and the Conversion Agent Engagement Letter and the consummation of the transactions contemplated herein 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 Primary Parties. This Agreement has been validly executed and delivered by each of the Primary Parties, and is a valid, legal and binding obligation of each of the Primary 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 Section 12 or Section 13 hereof may be unenforceable as against public policy.
(b) The Registration Statement was declared effective by the Commission on [•], 20222021, no stop order has been issued with respect thereto and no proceedings related thereto have been initiated or, to the knowledge of the Primary Parties, threatened by the Commission. At the time the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto), became effective, the Registration Statement complied as to form in all material respects with the 1933 Act and the 1933 Act Regulations, and the Registration Statement and the Prospectus 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 is filed with the Commission and at the Closing Date, the Registration Statement, including the Prospectus (including any amendment or supplement thereto) and, when taken together with the Prospectus, any Blue Sky Application or Sales Information (as such terms are defined in Section 12 hereof) authorized by any of the Primary Parties for use in connection with the 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 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 caption “The Conversion and Stock Offering—Plan of Distribution—Marketing ; Selling Agent and Distribution; Underwriter Compensation” 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 (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.
(d) 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 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 Company was not, and is not, an ineligible issuer (as defined in Rule 405 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 (as defined in Rule 433(h) of the 1933 Act Regulations), the 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 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 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 Company will file or retain such free writing prospectus as required by Rule 433 of the 1933 Act Regulations.
(f) The Bank and the Company have has filed the Holding Company Applications with the Federal Reserve, the FDIC Reserve Board and the Division and the Holding Company Applications are accurate and complete in all material respects. The Company and the Bank have has received written notice from the Federal Reserve, the FDIC and the Division, as applicable, Reserve Board of their approvals or non-objections, as applicable of each its approval of the Holding Company Applications, such approvals or non-objections remain approval remains in full force and effect and no order has been issued by the Federal Reserve, the FDIC or the Division Reserve Board 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 Division 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, the FDIC or the Division Reserve Board in approving any of the Holding Company Applications pursuant to applicable statutes or regulations. At the date of such approvals or non-objections approval and as of the Closing Date, the Holding Company Applications complied and will comply in all material respects with the applicable provisions of the Conversion RegulationsRegulations and any other applicable provisions of the Bank Holding Company Act of 1956, as amended, and any other applicable regulations of the Federal Reserve Board.
(g) In connection with the Conversion, the Primary Parties filed with the NJDBI the NJDBI Application and filed such amendments thereto and supplementary materials as may have been required to the date hereof. The NJDBI has approved the NJDBI Application, such approval remains in full force and effect and no order has been issued by the NJDBI suspending or revoking such approval and no proceedings therefor have been initiated or, to the knowledge of the Primary Parties, threatened by the NJDBI. At the time of the approval of the NJDBI Application by the NJDBI and as of the Closing Date, the NJDBI Application complied and will comply in all material respects with any applicable provisions of the NJDBI Regulations, and the NJDBI 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.
(hi) The Plan has been approved by the Board of Directors of each of the Primary Parties Parties, and the Plan and the contribution to the Foundation is subject to approval by the Depositors of the BankVoting Depositors; at the Closing Date, the offer and sale of the Shares and the contribution of the Foundation Shares to the Foundation 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 ReserveReserve Board, the NJDBI, 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.
(ij) RP Financial, LC., which prepared an independent valuation of the Common Stock of the Company as of February 185, 2022 2021 (as amended or supplemented, if so amended or supplemented) (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 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.
(jk) ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇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 and each subsidiary thereofParties, an independent certified public accountant as required by the 1933 Act and the 1933 Act Regulations.
(kl) 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 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 Bank Mid-Tier Holding Company with the FDICFederal Reserve Board, 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 Mid-Tier Holding Company included in the Prospectus, and as to the pro forma adjustments, the adjustments made therein have been consistently applied on the basis described therein.
(lm) Since the respective dates as of which information is given in the Registration Statement and the 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 material increase in the long-term debt of any of the Primary Parties or in the principal amount of the Bank’s assets that are classified by the Bank 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 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.
(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 Massachusetts 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 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.
(n) The Bank maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets, (iii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accounts or assets are compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any difference.
(o) The books, records and accounts and systems of internal accounting control of the Bank comply in all material respects with the requirements of Section 13(b)(2) of the 1934 Act. The Company will establish as of the Closing Date and maintain thereafter to the extent required by applicable regulations, “disclosure controls and procedures” (as defined in
Appears in 1 contract
Representations and Warranties of the Primary Parties. The Primary Parties jointly and severally represent and warrant to the Agent that:
(a) Each of The MHC, the Primary Parties has Mid-Tier Holding Company, the Holding Company and the 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, each of the Primary Parties 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 be sold by issue the Company Exchange Shares as provided herein and as described in the Prospectus. The consummation of the Conversion, the execution, delivery and performance of this Agreement, the Engagement Letter Agreement and the Conversion Agent Engagement Letter Agreement and the consummation of the transactions contemplated herein have been, or will be as of the Closing Date, been duly and validly authorized by all necessary corporate action on the part of each of the Primary PartiesMHC, the Mid-Tier Holding Company, the Holding Company and the Bank. This Agreement has been validly executed and delivered by each of the Primary Parties, and is a valid, legal and binding obligation of each of the Primary Parties, in each case enforceable in accordance with its terms, except to the extent, if any, that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the legality, validity, binding nature and extent that such enforceability thereof may be limited by (i) bankruptcybankruptcy laws, insolvencyinsolvency laws, moratorium, reorganization, conservatorship, receivership or other similar laws relating to or affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured financial institutions and their holding companies, by the FDIC (ii) general equity principles regardless including the laws relating to the rights of whether such enforceability is considered in a proceeding in equity or at law, and (iii) the extent, if any, that the provisions of Section 12 or Section 13 hereof may be unenforceable as against public policycontracting parties to equitable remedies).
(b) The Registration Statement was declared effective by the Commission on _________________, 2022, no 2010. No stop order has been issued with respect thereto and no to the Registration Statement. No proceedings related thereto to the Registration Statement have been initiated or, to the knowledge of the Primary Parties, threatened by the Commission. At the time the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto), became effective, the Registration Statement complied as to form in all material respects with the 1933 Act and the 1933 Act Regulations, Regulations and the Registration Statement and 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 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 is was filed with the Commission and at the Closing DateDate referred to in Section 5, the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto) and, when taken together with the Prospectus, any Blue Sky Application (if applicable) or Sales Information (as such terms are defined in Section 12 hereofbelow) authorized for use by any of the Primary Parties for use in connection with the 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 caption “The Conversion and Plan of Distribution—Offering – Marketing and Distribution; CompensationArrangements” 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.”
(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 (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.
(d) 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 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 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 405 of the 1933 Act Regulations)405. 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 433 of the 1933 Act Regulations433.
(fd) The Bank and the Company have filed the Applications with the Federal Reserve, the FDIC and the Division 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 Division, as applicable, of their approvals or non-objections, as applicable of each As of the ApplicationsApplicable Time, 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 Division 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 Division 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 Division 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 Applications complied and will comply in all material respects with the applicable provisions of the Conversion Regulations.
(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, 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 by the 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.
neither (i) RP Financialthe Issuer-Represented General Free Writing Prospectus(es) issued at or prior to the Applicable Time and the Statutory Prospectus, LC.all considered together (collectively, which prepared an independent valuation of the Common Stock of the Company as of February 18, 2022 (as amended or supplemented, if so amended or supplemented) (the “AppraisalGeneral Disclosure Package”), has advised nor (ii) any individual Issuer-Represented Limited-Use Free Writing Prospectus, when considered together with the Primary Parties General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in writing that it is independent with respect order to each make the statements therein, in the light of the Primary Parties within the meaning of applicable banking regulationscircumstances under which they were made, 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) ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, 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 and each subsidiary thereof, an independent certified public accountant as required by the 1933 Act and the 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 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 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 GAAPmisleading. The other financial, statistical and pro forma information and related notes preceding sentence does not apply to statements in or omissions from any Prospectus 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 consistently applied on the basis described therein.
(l) Since the respective dates as of which information is given in the Registration Statement and relating to the 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 material increase in the long-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 Offer Shares 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 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 Issuer-Represented Free Writing Prospectus based upon 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.
(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 Massachusetts 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 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.
(n) The Bank maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets, (iii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accounts or assets are compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any difference.
(o) The books, records and accounts and systems of internal accounting control of the Bank comply in all material respects with the requirements of Section 13(b)(2) of the 1934 Act. The Company will establish as of the Closing Date and maintain thereafter written information furnished to the extent required Holding Company by applicable regulations, “disclosure controls the Agent specifically for use therein. As used in this paragraph and procedures” (as defined inelsewhere 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:
(a) Each of The MHC, the Primary Parties has Mid-Tier Holding Company, the Holding Company and the 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, each of the Primary Parties 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 to be sold by and issue the Company Exchange Shares as provided herein and as described in the Prospectus. The consummation of the Conversion, the execution, delivery and performance of this Agreement, the Engagement Letter Agreement and the Conversion Agent Engagement Letter Agreement and the consummation of the transactions contemplated herein have been, or will be as of the Closing Date, been duly and validly authorized by all necessary corporate action on the part of each of the Primary PartiesMHC, the Mid-Tier Holding Company, the Holding Company and the Bank. This Agreement has been validly executed and delivered by each of the Primary Parties, and is a valid, legal and binding obligation of each of the Primary Parties, in each case enforceable in accordance with its terms, except to the extent, if any, that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the legality, validity, binding nature and extent that such enforceability thereof may be limited by (i) bankruptcybankruptcy laws, insolvencyinsolvency laws, moratorium, reorganization, conservatorship, receivership or other similar laws relating to or affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured financial institutions and their holding companies, by the FDIC (ii) general equity principles regardless including the laws relating to the rights of whether such enforceability is considered in a proceeding in equity or at law, and (iii) the extent, if any, that the provisions of Section 12 or Section 13 hereof may be unenforceable as against public policycontracting parties to equitable remedies).
(b) The Registration Statement was declared effective by the Commission on May 14, 2022, no 2010. No stop order has been issued with respect thereto and no to the Registration Statement. No proceedings related thereto to the Registration Statement have been initiated or, to the knowledge of the Primary Parties, threatened by the Commission. At the time the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto), became effective, the Registration Statement complied as to form in all material respects with the 1933 Act and the 1933 Act Regulations, Regulations and the Registration Statement and 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 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 is was filed with the Commission and at the Closing DateDate referred to in Section 5, the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto) and, when taken together with the Prospectus, any Blue Sky Application (if applicable) or Sales Information (as such terms are defined in Section 12 hereofbelow) authorized for use by any of the Primary Parties for use in connection with the 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 caption “The Conversion and Plan of Distribution—Offering – Marketing and Distribution; CompensationArrangements” or written statements in or omissions from any sales information or information filed pursuant to state securities or blue sky laws or regulations regarding the Agent.”
(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 (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.
(d) 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 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 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 405 of the 1933 Act Regulations)405. 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 Offer 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 433 of the 1933 Act Regulations433.
(fd) The Bank and the Company have filed the Applications with the Federal Reserve, the FDIC and the Division 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 Division, as applicable, of their approvals or non-objections, as applicable of each As of the ApplicationsApplicable Time, 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 Division 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 Division 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 Division 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 Applications complied and will comply in all material respects with the applicable provisions of the Conversion Regulations.
(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, 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 by the 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.
neither (i) RP Financialthe Issuer-Represented General Free Writing Prospectus(es) issued at or prior to the Applicable Time and the Statutory Prospectus, LC.all considered together (collectively, which prepared an independent valuation of the Common Stock of the Company as of February 18, 2022 (as amended or supplemented, if so amended or supplemented) (the “AppraisalGeneral Disclosure Package”), has advised nor (ii) any individual Issuer-Represented Limited-Use Free Writing Prospectus, when considered together with the Primary Parties General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in writing that it is independent with respect order to each make the statements therein, in the light of the Primary Parties within the meaning of applicable banking regulationscircumstances under which they were made, 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) ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, 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 and each subsidiary thereof, an independent certified public accountant as required by the 1933 Act and the 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 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 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 GAAPmisleading. The other financial, statistical and pro forma information and related notes preceding sentence does not apply to statements in or omissions from any Prospectus 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 consistently applied on the basis described therein.
(l) Since the respective dates as of which information is given in the Registration Statement and relating to the 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 material increase in the long-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 Offer Shares 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 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 Issuer-Represented Free Writing Prospectus based upon 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.
(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 Massachusetts 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 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.
(n) The Bank maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets, (iii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accounts or assets are compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any difference.
(o) The books, records and accounts and systems of internal accounting control of the Bank comply in all material respects with the requirements of Section 13(b)(2) of the 1934 Act. The Company will establish as of the Closing Date and maintain thereafter written information furnished to the extent required Holding Company by applicable regulations, “disclosure controls the Agent specifically for use therein. As used in this paragraph and procedures” (as defined inelsewhere 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:
(a) Each of The MHC, the Primary Parties has Mid-Tier Holding Company, the Holding Company and the 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, each of the Primary Parties 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 to be sold by and issue the Company Merger Shares as provided herein and as described in the Prospectus. The consummation of the ConversionReorganization, the execution, delivery and performance of this Agreement, the Engagement Letter Agreement and the Conversion Agent Engagement Letter Agreement and the consummation of the transactions contemplated herein have been, or will be as of the Closing Date, been duly and validly authorized by all necessary corporate action on the part of each of the Primary PartiesMHC, the Mid-Tier Holding Company, the Holding Company and the Bank. This Agreement has been validly executed and delivered by each of the Primary Parties, and is a valid, legal and binding obligation of each of the Primary Parties, in each case enforceable in accordance with its terms, except to the extent, if any, that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the legality, validity, binding nature and extent that such enforceability thereof may be limited by (i) bankruptcybankruptcy laws, insolvencyinsolvency laws, moratorium, reorganization, conservatorship, receivership or other similar laws relating to or affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured financial institutions and their holding companies, by the FDIC (ii) general equity principles regardless including the laws relating to the rights of whether such enforceability is considered in a proceeding in equity or at law, and (iii) the extent, if any, that the provisions of Section 12 or Section 13 hereof may be unenforceable as against public policycontracting parties to equitable remedies).
(b) The Registration Statement was declared effective by the Commission on , 2022, no 2010. No stop order has been issued with respect thereto and no to the Registration Statement. No proceedings related thereto to the Registration Statement have been initiated or, to the knowledge of the Primary Parties, threatened by the Commission. At the time the Registration Statement, including the Prospectus and Proxy Statement/Prospectus contained therein (including any amendment or supplement thereto), became effective, the Registration Statement complied as to form in all material respects with the 1933 Act and the 1933 Act Regulations, Regulations and the Registration Statement and Statement, including the Prospectus and Proxy Statement/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 Reorganization, 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 is or Proxy Statement/Prospectus was filed with the Commission and at the Closing DateDate referred to in Section 5, the Registration Statement, including the Prospectus and Proxy Statement/Prospectus contained therein (including any amendment or supplement thereto) and, when taken together with the Prospectus and Proxy Statement/Prospectus, any Blue Sky Application (if applicable) or Sales Information (as such terms are defined in Section 12 hereofbelow) authorized for use by any of the Primary Parties for use in connection with the OfferingReorganization, 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 caption “The Conversion and Plan of Distribution—Offering – Marketing and Distribution; CompensationArrangements” or written statements in or omissions from any sales information or information filed pursuant to state securities or blue sky laws or regulations regarding the Agent.”
(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 (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.
(d) 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 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 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 405 of the 1933 Act Regulations)405. 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 Offer 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 433 of the 1933 Act Regulations433.
(fd) The Bank and the Company have filed the Applications with the Federal Reserve, the FDIC and the Division 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 Division, as applicable, of their approvals or non-objections, as applicable of each As of the ApplicationsApplicable Time, 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 Division 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 Division 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 Division 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 Applications complied and will comply in all material respects with the applicable provisions of the Conversion Regulations.
(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, 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 by the 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.
neither (i) RP Financialthe Issuer-Represented General Free Writing Prospectus(es) issued at or prior to the Applicable Time and the Statutory Prospectus, LC.all considered together (collectively, which prepared an independent valuation of the Common Stock of the Company as of February 18, 2022 (as amended or supplemented, if so amended or supplemented) (the “AppraisalGeneral Disclosure Package”), has advised nor (ii) any individual Issuer-Represented Limited-Use Free Writing Prospectus, when considered together with the Primary Parties General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in writing that it is independent with respect order to each make the statements therein, in the light of the Primary Parties within the meaning of applicable banking regulationscircumstances under which they were made, 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) ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, 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 and each subsidiary thereof, an independent certified public accountant as required by the 1933 Act and the 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 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 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 GAAPmisleading. The other financial, statistical and pro forma information and related notes preceding sentence does not apply to statements in or omissions from any Prospectus 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 consistently applied on the basis described therein.
(l) Since the respective dates as of which information is given in the Registration Statement and relating to the 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 material increase in the long-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 Offer Shares 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 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 Issuer-Represented Free Writing Prospectus based upon 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.
(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 Massachusetts 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 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.
(n) The Bank maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets, (iii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accounts or assets are compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any difference.
(o) The books, records and accounts and systems of internal accounting control of the Bank comply in all material respects with the requirements of Section 13(b)(2) of the 1934 Act. The Company will establish as of the Closing Date and maintain thereafter written information furnished to the extent required Holding Company by applicable regulations, “disclosure controls the Agent specifically for use therein. As used in this paragraph and procedures” (as defined inelsewhere 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:
(a) Each of the 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. The consummation of the Conversion, the execution, delivery and performance of this Agreement, the Engagement Letter and the Conversion Agent Engagement Letter and the consummation of the transactions contemplated herein 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 Primary Parties. This Agreement has been validly executed and delivered by each of the Primary Parties, and is a valid, legal and binding obligation of each of the Primary 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 Section 12 or Section 13 hereof may be unenforceable as against public policy.
(b) The Registration Statement was declared effective by the Commission on [•], 20222023, no stop order has been issued with respect thereto and no proceedings related thereto have been initiated or, to the knowledge of the Primary Parties, threatened by the Commission. At the time the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto), became effective, the Registration Statement complied as to form in all material respects with the 1933 Act and the 1933 Act Regulations, and the Registration Statement and the Prospectus 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 is filed with the Commission and at the Closing Date, the Registration Statement, including the Prospectus (including any amendment or supplement thereto) and, when taken together with the Prospectus, any Blue Sky Application or Sales Information (as such terms are defined in Section 12 hereof) authorized by any of the Primary Parties for use in connection with the 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 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 caption “The Conversion and Stock Offering—Plan of Distribution—Marketing ; Selling Agent and Distribution; 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 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 (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.
(d) 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 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 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 ProspectusProspectus (as defined herein).
(e) At the time of filing the Registration Statement and at the date hereof, the Company was not, and is not, an ineligible issuer (as defined in Rule 405 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 (as defined in Rule 433(h) of the 1933 Act Regulations), the 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 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 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 Company will file or retain such free writing prospectus as required by Rule 433 of the 1933 Act Regulations.
(f) The Bank and the Company have filed the Applications with the Federal Reserve, the FDIC and the Division 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 DivisionDepartment, as applicable, of their approvals or non-objections, as applicable of each of the 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 Division 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 Reserve, the FDIC or the Division 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 Division 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.
(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, 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 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 an independent valuation of the Common Stock of the Company as of February 18, 2022 (as amended or supplemented, if so amended or supplemented) (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 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) ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇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 extent required, an independent certified public accountant as required by the 1933 Act and the 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 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, and as to the pro forma adjustments, the adjustments made therein have been consistently applied on the basis described therein.
(l) Since the respective dates as of which information is given in the Registration Statement and the 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 considered as a wholeone 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 material increase in the long-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 borrowing borrowings other than in the ordinary course of businessbusiness or have not been disclosed in the Prospectus; (iii) there have not been any material transactions entered into by the Primary 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 worthworth 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 PartiesParties 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 Massachusetts 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). 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 (a “Material Adverse Effect”)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.
(n) The Bank maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets, (iii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accounts or assets are compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any difference.
(o) The books, records and accounts and systems of internal accounting control of the Bank comply in all material respects with the requirements of Section 13(b)(2) of the 1934 Act. The Company will establish as of the Closing Date and maintain thereafter to the extent required by applicable regulations, “disclosure controls and procedures” (as defined in
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:
(a) Each of The Bank and the Primary Parties has Holding Company have 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 Bank, the MHC and 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 to be sold by the Company as provided herein and as described in the Prospectus. The consummation of the Conversion, the execution, delivery and performance of this Agreement, the Engagement Letter Agreement and the Conversion Agent Engagement Letter Agreement and the consummation of the transactions contemplated herein have been, or will be as of the Closing Date, been duly and validly authorized by all necessary corporate action on the part of each the Bank (except for the approval of the Primary PartiesBank's depositors necessary for the consummation of the Conversion) 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. This Agreement has been validly executed and delivered by each of the Primary Parties, and is a valid, legal and binding obligation of each of the Primary 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 Section Sections 11 or 12 or Section 13 hereof may be unenforceable as against public policy.
(b) The Registration Statement was declared effective by the Commission on _____________, 2022, no 2000. No stop order has been issued with respect thereto and no proceedings related thereto have been initiated or, to the Prospectus. to the best knowledge of the Primary Parties, Parties no proceedings related to the Prospectus have been initiated or threatened by the Commission. At the time the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto), became effective, the Registration Statement complied as to form in all material respects with the 1933 Act and the 1933 Act Regulationsregulations promulgated thereunder. The Registration Statement, and including the Prospectus contained therein (including any amendment or supplement thereto) at the time such Registration Statement and the Prospectus 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 is was filed with the Commission and at the Closing DateDate referred to in Section 5, the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto) and, when taken together with the Prospectus, any Blue Sky Application or Sales Information (as such terms are defined in Section 12 hereof) authorized for use by any of the Primary Parties for use in connection with the OfferingOfferings, will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, 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 or its counsel for use in the Prospectus under the caption “captions "Market for the Common Stock", "The Conversion and Plan of Distribution—the Offering - Marketing Arrangements" and Distribution; Compensation"The Conversion and the Offering - Direct Community Offering and Syndicated Community Offering" or with written statements or omissions from any Sales Information or information filed pursuant to state securities or blue sky laws or regulations regarding the Agent.”
(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 The Application for Conversion was 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 (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.
(d) 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 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 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 Company was not, and is not, an ineligible issuer (as defined in Rule 405 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 (as defined in Rule 433(h) of the 1933 Act Regulations), the 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 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 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 Company will file or retain such free writing prospectus as required by Rule 433 of the 1933 Act Regulations.
(f) The Bank and the Company have filed the Applications with the Federal Reserve, the FDIC and the Division and FDIC has issued to the Applications are accurate and complete in all material respectsBank a notice of its intent not to object to the Conversion; the Massachusetts Application has been approved by the Commissioner. The Company and the Bank have received written notice from the Federal ReserveApplication for Conversion, the FDIC Massachusetts Application, did and the Division, as applicable, of their approvals or non-objections, as applicable of each of the 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 Division 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 Division 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 Division in approving any of the Applications pursuant to applicable statutes or regulations. At the date of such approvals or non-objections and will as of the Closing Date, the Applications complied and will Date comply as to form in all material respects with the Conversion Regulations and any other applicable provisions rules and regulations of the Conversion RegulationsFDIC and the Massachusetts Division of Banks, respectively (except as modified or waived in writing by the FDIC and the Massachusetts Division of Banks.
(gd) No order has been issued by the Commission FDIC, the Commissioner of Banks of the Commonwealth of Massachusetts (the "Commissioner"), or any state securities administrator regulatory authority, 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 oris, to the best knowledge of the Primary Parties, pending or threatened.
(he) The Plan has been approved duly adopted by the Board of Directors of each the Bank. To the best knowledge of the Primary Parties and by the Depositors of the Bank; Parties, no person has, or at the Closing DateDate will have, the offer and sale sought to obtain review of the Shares will have been conducted final action of the FDIC or the Commissioner in all material respects in accordance with approving the Plan, and all other applicable lawsthe Conversion, regulationsor the Applications, decisions and orders, including all terms, conditions, requirements and provisions precedent pursuant to the Conversion imposed by the Federal Reserve, the Commission BHCA 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 Prospectusstatute or regulation.
(if) The Holding Company has filed the Holding Company Application with the FRB. As of the Closing Date the FRB will have approved of the Holding Company's becoming a bank holding company with respect to the Bank.
(g) RP Financial, LC., which prepared an independent valuation the appraisal of the aggregate pro forma market value of the Common Stock of on which the Company as of February 18, 2022 (as amended or supplemented, if so amended or supplemented) 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 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 regulationsParties.
(jh) ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, which certified the audited financial statements filed as part of the Registration StatementStatement and the Application, 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 AccountantsAICPA, the applicable rules of the Public Company Accounting Oversight Board (United States) (“PCAOB”) and the SEC, it is registered with the PCAOB and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is, with respect to the Primary Parties Company, the Bank and each subsidiary thereofof the Bank, an independent certified public accountant accountants as required by the 1933 Act and the 1933 Act Regulations.
(ki) The financial statements, schedules statements and the notes related thereto that which are included in the Registration Statement and which are a part of the Prospectus present fairly present in all material respects the financial condition, condition and retained earnings of the Bank as of the dates indicated and the results of operations, equity operations and cash flows of the Bank at the respective dates indicated and for the respective periods covered thereby and specified. The financial statements 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 Commission 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 on a consistent basis during the periods involved (presented, except as otherwise noted in the notes to the financial statements)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 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 GAAPtherein. 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 consistently applied on the basis described therein.
(lj) Since the respective dates as of which information is given in the Registration Statement and Statement, including the Prospectus, except as may otherwise be stated therein: ; (i) there has not been any material adverse change in the financial condition, results of operationscondition or in the earnings, capital, assets, properties, properties or business affairs or prospects of the Primary Parties, taken Parties considered as a wholeone enterprise, whether or not arising in the ordinary course of business; (ii) there has not been any material increase in the long-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 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 than those in the payment ordinary course of principal or interest on any outstanding debt obligationsbusiness; and (ixiii) 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) Prospectus and, none of the Primary Parties has any material liabilities of any kind, contingent or other liabilitiesotherwise, except as set forth disclosed in the Registration Statement or the Prospectus; and (xi) there has been no dividend or distribution of any kind declared, paid or made by the Primary Parties.
(mk) At As of the Closing Date, the Holding Company will be a stock corporation duly organized and validly existing as a corporation in good standing under the laws of the State Commonwealth of MarylandMassachusetts, with corporate power and authority to own its properties and to conduct its business, business as described in the Prospectus, and will be qualified to transact business and will be in good standing in Massachusetts 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 operationsearnings, capital, properties, properties or business affairs or prospects of the Primary Parties taken as a whole (a “Material Adverse Effect”)whole. On As of the Closing Date, the Holding 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 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 Company Closing Date, will be not own any equity securities or any equity interest in compliance any business enterprise except as described in all material respects with all lawsthe Prospectus.
(m) The Bank is a duly organized and validly existing Massachusetts- 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 orders applicable to practices of the operation FDIC, and the Commissioner and under Massachusetts law; the Bank has obtained all licenses, permits and other governmental authorizations currently required for the conduct of its business. At , except those that individually or in the Closing Dateaggregate 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 Commonwealth of Massachusetts 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 BankProspectus or as are immaterial in amount and are not required to be described in the Prospectus.
(n) The deposit accounts of the Bank maintains are insured by the FDIC up to applicable limits. Upon consummation of the Conversion, the Bank will establish a system liquidation account for the benefit of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed the Bank's depositors, in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation the Plan and the requirements of financial statements in conformity with GAAP and to maintain accountability for assets, (iii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accounts or assets are compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differenceapplicable Conversion Regulations.
(o) The books, records and accounts and systems of internal accounting control As of the Closing Date, the Bank comply will not be authorized to issue any shares of capital stock except to 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 with to the requirements of Section 13(b)(2) description thereof contained in the Prospectus. Upon issuance of the 1934 ActShares, 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 Company will establish as consummation of the Closing Date and maintain thereafter 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 extent required 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 Primary Parties taken as a whole, and such agreements are in full force and 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 FDIC, the Commissioner the FRB, the Commission 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, “disclosure controls decisions, directives and procedures” (as defined inorders of the Commissioner, the FRB, the Commission and the FDIC), excep
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) Each The Bank has, and as of the Primary Parties has Closing Date, 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, 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 various limitations and required approvals described therein. The Subject to the receipt of member and regulatory approval, the consummation of the ConversionReorganization, the execution, delivery and performance of this Agreement, the Engagement Letter and the Conversion Agent Engagement Letter Agreement and the consummation of the transactions herein contemplated herein have been, or will be as of the Closing Date, been duly and validly authorized by all necessary corporate action on the part of each the Bank and, as of the Primary PartiesClosing Date, will have been duly and validly authorized by all necessary corporate action on the part of the MHC and the Holding Company. This Agreement has been validly executed and delivered by each of the Primary PartiesHolding Company, the MHC and the Bank, and is a valid, legal and binding obligation of each of the Primary PartiesBank, the Holding Company and the 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, 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 Section 12 or Section 13 Sections 10 and 11 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 [ ], 2022, 2004; and no stop order has been issued with respect thereto and no proceedings related thereto 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, including the Prospectus contained therein (including any amendment or supplement thereto), became effective, the Registration Statement complied as to form in all material respects with the 1933 Act and the 1933 Act Regulations, regulations promulgated thereunder and the Registration Statement and 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 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 is was filed with the Commission and at the Closing DateDate referred to in Section 5, the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto) and), when taken together with the Prospectus, and any Blue Sky Application or any Sales Information (as such terms are defined in Section 12 hereof) information authorized by any of the Primary Parties for use in connection with the Offering, 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(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" 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.
(d) The MHC Notice and Application, including the Prospectus and the Merger Applications, was approved by the OTS on [ ], 2004; 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 OTS, and at all times subsequent thereto until the Closing Date, the MHC Notice and 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 OTS (except as modified or waived in writing by the OTS). At the time of the approval and at all times subsequent thereto until the Closing Date, the MHC Notice and Application, 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, in light of the circumstances under which they were made, not misleading; provided, however, that the representations and or warranties in this Section 6(bsubsection (d) 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 caption “The Conversion and Plan of Distribution—Marketing and Distribution; 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 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, MHC Notice and Application under the Prospectus, captions "Market for the Common Stock" and "The Reorganization and Stock Offering -- Marketing Arrangements" or written statements or omissions from any Permitted Free Writing Prospectus (taken together with sales information or information filed pursuant to state securities or blue sky laws or regulations regarding 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.
(d) 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 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 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 ProspectusAgent.
(e) At the time of filing the Registration Statement and at the date hereof, the Company was not, and is not, an ineligible issuer (as defined in Rule 405 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 (as defined in Rule 433(h) of the 1933 Act Regulations), the 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 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 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 Company will file or retain such free writing prospectus as required by Rule 433 of the 1933 Act Regulations.
(f) The Bank and the Company have filed the Applications with the Federal Reserve, the FDIC and the Division 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 Division, as applicable, of their approvals or non-objections, as applicable of each of the 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 Division 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 Division 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 Division 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 Applications complied and will comply in all material respects with the applicable provisions of the Conversion Regulations.
(g) No order has been issued by the Commission OTS, the Commission, or any state securities administrator regulatory authority, 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 Reorganization is pending or, to the best knowledge of the Primary Parties, threatened.
(hf) The Plan has been approved duly adopted by the Board of Directors of each the Bank. To the best knowledge of the Primary Parties 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. The Bank has adhered to all provisions contained in the Plan.
(g) The Holding Company has filed with the OTS the Holding Company Application and by as of the Depositors Closing Date the OTS will have approved the Holding Company's acquisition 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.
(ih) RP FinancialKeller & Company, LC.Inc., which prepared an independent valuation the appraisal of the Common Stock aggregate ▇▇▇ ▇▇rma market value of the Holding Company as of February 18, 2022 (as amended or supplemented, if so amended or supplemented) 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 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 regulationsConversion Regulations.
(ji) ▇▇▇Snyder & Haller, P.C., which certified the financial statements filed ▇▇ ▇▇▇t o▇ ▇▇▇ ▇▇▇▇▇Registration Statement and the MHC Notice and Application, which certified the audited financial statements filed as part of the Registration Statement, has have each advised the Primary Parties in writing that it is each is, with respect to each of the Primary Parties, 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”) 12 C.F.R. Section 563c.3 and the SEC, it is registered with the PCAOB and is, with respect to the Primary Parties and each subsidiary thereof, an independent certified public accountant as required by under the 1933 Act and the 1933 Act RegulationsRegulations promulgated thereunder.
(kj) The financial statements, schedules statements and the notes related thereto that which are included in the Registration Statement and which are a part of the Prospectus present fairly present in all material respects the financial condition, condition and retained earnings of the Bank as of the dates indicated and the results of operations, equity operations and cash flows of the Bank at the respective dates indicated and for the respective periods covered thereby and specified. The financial statements 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 Commission, the standards of the Public Companies Accounting Oversight Board and of the American Institute of Certified Public Accountants, as applicable, 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 on a consistent basis during the periods involved (presented except as otherwise noted in the notes to the financial statements)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 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 GAAPtherein. 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 consistently properly applied on the basis described therein.
(lk) Since the respective dates as of which information is given in the Registration Statement and Statement, including the Prospectus, except other than as may otherwise be stated therein: disclosed therein (i) there has not been any material adverse change in the financial condition, results of operationscondition or in the earnings, capital, assets, properties, properties or business affairs or prospects of any of the Primary Parties, taken Parties or of the Primary Parties considered as a wholeone enterprise, whether or not arising in the ordinary course of business; (ii) there has not been any material decrease in total assets of the Bank, any material increase in the long-term debt of any of the Primary Parties or in the principal aggregate amount of the Bank’s assets that are classified as substandard, doubtful or loss or in loans past due 90 ninety (90) days or more more, or any real estate acquired by foreclosure, by deed-in-lieu of foreclosure or deemed in-loans characterized as "in substance foreclosure or any material decrease in equity capital or total assets of any of foreclosure"; nor has the Primary Parties, nor have the Primary Parties Bank issued any securities (other than in connection with the incorporation of the Company) or incurred any liability or obligation for borrowing borrowings other than in the ordinary course of business; and (iii) there have not been any material transactions entered into by the 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 than those in the payment ordinary course of principal or interest on any outstanding debt obligations; (ix) the business. The capitalization, liabilities, liabilities assets, properties and business of the Primary Parties conform in all material respects to the descriptions thereof contained in the Prospectus; (x) Prospectus and none of the Primary Parties has any material liabilities of any kind, contingent or other liabilitiesotherwise, except as set forth disclosed in the Registration Statement or the Prospectus; and (xi) there has been no dividend or distribution of any kind declared, paid or made by the Primary Parties.
(ml) At As of the Closing Date, the Holding Company will be a stock corporation duly organized and validly existing as a corporation in good standing under the federal laws of the State of MarylandUnited States, with corporate power and authority to own its properties and to conduct its business, business as described in the Prospectus, and will be qualified to transact business and will be in good standing in Massachusetts 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 operationsearnings, capital, properties, properties or business affairs or prospects of the Primary Parties taken as a whole (a “Material Adverse Effect”)whole. On As of the Closing Date, the Holding 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 materially adversely affect the financial condition, earnings, capital, assets, properties or business of the Primary Parties taken as a Material Adverse Effect; and as whole. 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, and the Company will be in compliance in all material respects with all laws, rules, regulations and orders applicable to the operation .
(m) As of its business. At 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 taken as a whole.
(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 a 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, earnings, capital, assets or properties 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, assets or properties of the Primary Parties taken as a whole. 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 BankProspectus.
(nq) The Bank maintains is a system member of internal accounting controls sufficient the Federal Home Loan Bank of Boston ("FHLB of Boston"). The deposit accounts of the Bank are insured by the FDIC up to provide reasonable assurance that (i) transactions are executed applicable limits. Upon consummation of the Reorganization, the rights of the members of the Bank in its mutual form shall be transferred to the MHC in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation the Plan and the requirements of financial statements in conformity with GAAP and to maintain accountability for assets, (iii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accounts or assets are compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differenceConversion Regulations.
(or) The books, records and accounts and systems of internal accounting control Prior to the completion of the Reorganization, the Bank comply 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 with to the requirements of Section 13(b)(2) description thereof contained in the Prospectus. Upon issuance of the 1934 Act. 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 Company will establish Bank is not, and as of the Closing Date and maintain thereafter 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 the extent required which they are a party or by applicable regulationswhich they, “disclosure controls and procedures” (as defined inor any of their respective property, ma
Appears in 1 contract
Representations and Warranties of the Primary Parties. The Primary Parties jointly and severally represent and warrant to the Agent that:
(a) Each of the 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. The consummation of the Conversion, the execution, delivery and performance of this Agreement, the Engagement Letter and the Conversion Agent Engagement Letter and the consummation of the transactions contemplated herein 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 Primary Parties. This Agreement has been validly executed and delivered by each of the Primary Parties, and is a valid, legal and binding obligation of each of the Primary 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 Section 12 or Section 13 hereof may be unenforceable as against public policy.
(b) The Registration Statement was declared effective by the Commission on [•], 20222019, no stop order has been issued with respect thereto and no proceedings related thereto have been initiated or, to the knowledge of the Primary Parties, threatened by the Commission. At the time the Registration Statement, including the Prospectus contained therein (including any amendment or supplement thereto), became effective, the Registration Statement complied as to form in all material respects with the 1933 Act and the 1933 Act Regulations, and the Registration Statement and the Prospectus 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 is filed with the Commission and at the Closing Date, the Registration Statement, including the Prospectus (including any amendment or supplement thereto) and, when taken together with the Prospectus, any Blue Sky Application or Sales Information (as such terms are defined in Section 12 hereof) authorized by any of the Primary Parties for use in connection with the 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 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 caption “The Conversion Reorganization and Offering—Plan of Distribution—Distribution and Marketing and Distribution; CompensationArrangements” 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 (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.
(d) 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)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 Company was not, and is not, an ineligible issuer (as defined in Rule 405 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 (as defined in Rule 433(h) of the 1933 Act Regulations), the 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 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 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 Company will file or retain such free writing prospectus as required by Rule 433 of the 1933 Act Regulations.
(f) The Bank and the Company have has filed the Applications Holding Company Application with the Federal Reserve, the FDIC Reserve Board and the Division and the Applications are Holding Company Application is accurate and complete in all material respects. The Company and the Bank have has received written notice from the Federal Reserve, the FDIC and the Division, as applicable, Reserve Board of their approvals or non-objections, as applicable of each its approval of the ApplicationsHolding Company Application, such approvals or non-objections remain approval remains in full force and effect and no order has been issued by the Federal Reserve, the FDIC or the Division Reserve Board 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 Division 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, the FDIC or the Division Reserve Board in approving any of the Applications Holding Company Application pursuant to applicable statutes or regulations. At the date of such approvals or non-objections approval and as of the Closing Date, the Applications Holding Company Application complied and will comply in all material respects with the applicable provisions of the Conversion 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 may 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), 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.
(gh) 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.
(hi) The Plan has been approved by the Board of Directors of each of the Primary Parties Parties, and the Plan and the contribution to the Foundation is subject to approval by the Depositors Voting Members of the BankMHC; at the Closing Date, the offer and sale of the Shares and the contribution of the Foundation Shares to the Foundation 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 ReserveReserve 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.
(ij) RP Financial, LC., which prepared an independent valuation of the Common Stock of the Company as of February 188, 2022 2019 (as amended or supplemented, if so amended or supplemented) (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 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.
(jk) ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇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 and each subsidiary thereofParties, an independent certified public accountant as required by the 1933 Act and the 1933 Act Regulations.
(kl) 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 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 Bank Mid-Tier Holding Company with the FDICFederal Reserve Board, 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 Mid-Tier Holding Company included in the Prospectus, and as to the pro forma adjustments, the adjustments made therein have been consistently applied on the basis described therein.
(lm) Since the respective dates as of which information is given in the Registration Statement and the 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 material increase in the long-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 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.
(mn) 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 Massachusetts 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 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.
(n) The Bank maintains a system and First Mutual of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets, (iii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accounts or assets are compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any difference.Richmond Statutory Trust I.
(o) The books, records and accounts and systems of internal accounting control of the Bank comply in all material respects with the requirements of Section 13(b)(2) of the 1934 Act. The Company will establish as of the Closing Date and maintain thereafter to the extent required by applicable regulations, “disclosure controls and procedures” (as defined inmaintains a
Appears in 1 contract
Sources: Agency Agreement (Richmond Mutual Bancorporation, Inc.)