Conditions of Agent’s Obligations. The obligations of the Agent hereunder are subject to (i) the accuracy of, as of the date hereof, each Bringdown Date, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein, (ii) the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no stop order suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's satisfaction. (b) The Agent shall not have advised the Company that the Registration Statement, the Base Prospectus, the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which, in the Agent's opinion, is material, or omits to state a fact which, in the Agent's opinion, is material and is required to be stated therein or is necessary to make the statements therein (i) with respect to the Registration Statement, not misleading and (ii) with respect to the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading. (c) Except as set forth or contemplated in the Base Prospectus, the Prospectus and any Permitted Free Writing Prospectus, subsequent to the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in the Prospectus), or any material change in the short-term or long-term debt, of the Company, or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described above, in the Agent's judgment, makes it impractical or inadvisable to offer or deliver the Shares. (d) The Company shall have performed each of its obligations under Section 4(p). (e) The Company shall have performed each of its obligations under Section 4(q). (f) The Company shall have performed each of its obligations under Section 4(r). (g) FINRA shall not have raised any objection to the fairness and reasonableness of the terms and arrangements under this Agreement. (h) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished to Agent and the Agent's counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common Shares shall not have been suspended on the NASDAQ Capital Market. The Shares shall have been listed and authorized for trading on the NASDAQ Capital Market prior to the first Settlement Date, and satisfactory evidence of such actions shall have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably request.

Appears in 4 contracts

Samples: Equity Distribution Agreement (Top Ships Inc.), Equity Distribution Agreement (Top Ships Inc.), Equity Distribution Agreement (Castor Maritime Inc.)

Conditions of Agent’s Obligations. The obligations of the Agent hereunder are subject to (i) the accuracy of, as of the date hereof, each Bringdown Date, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein, (ii) the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no stop order suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's ’s satisfaction. (b) The Agent shall not have advised the Company that the Registration Statement, the Base Prospectus, the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which, in the Agent's ’s opinion, is material, or omits to state a fact which, in the Agent's ’s opinion, is material and is required to be stated therein or is necessary to make the statements therein (i) with respect to the Registration Statement, not misleading and (ii) with respect to the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading. (c) Except as set forth or contemplated in the Base Prospectus, the Prospectus and any Permitted Free Writing Prospectus, subsequent to the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in the Prospectus), or any material change in the short-term or long-term debt, of the Company, or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described above, in the Agent's ’s judgment, makes it impractical or inadvisable to offer or deliver the Shares. (d) The Company shall have performed each of its obligations under Section ~~4(p~~3(q). (e) The Company shall have performed each of its obligations under Section ~~4(q~~3(r). (f) The Company shall have performed each of its obligations under Section ~~4(r~~3(s). (g) FINRA shall not have raised any objection to the fairness and reasonableness of the terms and arrangements under this Agreement. (h) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished to Agent and the Agent's ’s counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common ~~Shares~~ Stock shall not have been suspended on the NASDAQ Capital Market. The Shares shall have been listed and authorized for trading on the NASDAQ Capital Market prior to the first Settlement Date, and satisfactory evidence of such actions shall have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the NASDAQ Capital Market. (k) The Company shall have in place a directors and officers insurance policy, in form and substance reasonably satisfactory to Agent. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's ’s counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably request.

Appears in 3 contracts

Samples: Equity Distribution Agreement (Applied UV, Inc.), Equity Distribution Agreement (Esports Entertainment Group, Inc.), Equity Distribution Agreement (Nemaura Medical Inc.)

Conditions of Agent’s Obligations. The obligations of the Agent hereunder are subject to (i) the accuracy of, as of the date hereof, each Bringdown Date, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein, (ii) the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) If ~~the~~ filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no stop order suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's ’s satisfaction. (b) The Agent shall not have advised the Company that the Registration Statement, the Base Prospectus, the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which, in the Agent's ’s opinion, is material, or omits to state a fact which, in the Agent's ’s opinion, is material and is required to be stated therein or is necessary to make the statements therein (i) with respect to the Registration Statement, not misleading and (ii) with respect to the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading. (c) Except as set forth or contemplated in ~~the Base Prospectus,~~ the Prospectus and any Permitted Free Writing Prospectus, subsequent to the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of ~~the exercise of any currently outstanding options or warrants that are disclosed in the Prospectus~~Exempt Issuances), or any material change in the short-term or long-term debt, of the Company, or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described above, in the Agent's ’s judgment, makes it impractical or inadvisable to offer or deliver the Shares. (d) The Company shall have performed each of its obligations under Section ~~4(p~~3(q). (e) The Company shall have performed each of its obligations under Section ~~4(q~~3(r). (f) The Company shall have performed each of its obligations under Section ~~4(r~~3(s). (g) The Company shall have performed each of its obligations under Section 3(t). (h) FINRA shall ~~not~~ have raised ~~any~~ no objection to the fairness and reasonableness of the underwriting terms and ~~arrangements under this Agreement~~arrangements. (hi) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (ij) The Company shall have furnished to Agent and the Agent's ’s counsel such additional documents, certificates and evidence as they may have reasonably requested. (jk) Trading in the Common ~~Shares~~ Stock shall not have been suspended on the NASDAQ Capital Market. The Shares shall have been listed and authorized for trading on the NASDAQ Capital Market prior to the first Settlement Date, and satisfactory evidence of such actions shall have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's ’s counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably request.

Appears in 3 contracts

Samples: Equity Distribution Agreement (Safety Shot, Inc.), Equity Distribution Agreement (Nexalin Technology, Inc.), Equity Distribution Agreement (Tenon Medical, Inc.)

Conditions of Agent’s Obligations. The obligations of the Agent hereunder are subject to (i) the accuracy of, as of the date hereof, each Bringdown Date, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein, (ii) the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no stop order suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's ’s satisfaction. (b) The Agent shall not have advised the Company that the Registration Statement, the Base Prospectus, the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which, in the Agent's ’s opinion, is material, or omits to state a fact which, in the Agent's ’s opinion, is material and is required to be stated therein or is necessary to make the statements therein (i) with respect to the Registration Statement, not misleading and (ii) with respect to the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading. (c) Except as set forth or contemplated in the Base Prospectus, the Prospectus and any Permitted Free Writing Prospectus, subsequent to the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in the Prospectus), or any material change in the short-term or long-term debt, of the Company, or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described above, in the Agent's ’s judgment, makes it impractical or inadvisable to offer or deliver the Shares. (d) The Company shall have performed each of its obligations under Section ~~4(p~~3(q). (e) The Company shall have performed each of its obligations under Section ~~4(q~~3(r). (f) The Company shall have performed each of its obligations under Section ~~4(r~~3(s). (g) FINRA shall not have raised any objection to the fairness and reasonableness of the terms and arrangements under this Agreement. (h) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished to Agent and the Agent's ’s counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common ~~Shares~~ Stock shall not have been suspended on the ~~NASDAQ~~ Nasdaq Capital Market. The Shares shall have been listed and authorized for trading on the ~~NASDAQ~~ Nasdaq Capital Market prior to the first Settlement Date, and satisfactory evidence of such actions shall have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the ~~NASDAQ~~ Nasdaq Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's ’s counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably request.

Appears in 3 contracts

Samples: Equity Distribution Agreement (Jet.AI Inc.), Equity Distribution Agreement (Data Storage Corp), Equity Distribution Agreement (Yield10 Bioscience, Inc.)

Conditions of Agent’s Obligations. The obligations of the Agent hereunder are subject to (i) the accuracy ofin all material respects of all representations and warranties of the Company contained herein, as of the date hereof, as of the date of the first Transaction Notice, each Bringdown Date, and each Time of Sale (in each case, as if made at such date), except that such representations and warranties shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented relating to such Shares on such date, and ~~compliance with,~~ except that representations and warranties made as of a specific date shall be accurate in all ~~representations, warranties and agreements~~ material respects as of ~~the Company contained herein~~such specific date), (ii) the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) If ~~the~~ filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall have become and remain effective; no stop order suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's ’s satisfaction. (b) The Agent shall not have advised the Company that the Registration Statement, the Base Prospectus, the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which, in the Agent's ’s opinion, is material, or omits to state a fact which, in the Agent's ’s opinion, is material and is required to be stated therein or is necessary to make the statements therein (i) with respect to the Registration Statement, not misleading and (ii) with respect to the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading. (c) Except as set forth or contemplated in the ~~Base Prospectus, the~~ Prospectus and any Permitted Free Writing Prospectus, as amended and supplemented, subsequent to the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, not in the ordinary course of business, or declared or paid any dividends or made any distribution of any kind with respect to its capital ~~stock~~ stock, and there shall not have been any material change in the capital stock, or any material issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding ~~options~~ options, preferred stock, notes or warrants that are disclosed in the Registration Statement or the Prospectus or the issuance of securities pursuant to the Company’s equity incentive plans or employee stock purchase plans described in the Registration Statement or the Prospectus), or any material change in the short-term or long-term debt, of the Company, or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described above, in the Agent's ’s judgment, makes it impractical or inadvisable to offer or deliver the Shares. (d) The Company shall have performed each of its obligations under Section ~~4(p~~3(q). (e) The Company shall have performed each of its obligations under Section ~~4(q~~3(r). (f) The Company shall have performed each of its obligations under Section ~~4(r~~3(s). (g) FINRA shall ~~not~~ have raised ~~any~~ no objection to the fairness and reasonableness of the underwriting terms and ~~arrangements under this Agreement~~arrangements. (h) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished to Agent and the Agent's ’s counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the ~~Common~~ Ordinary Shares shall not have been suspended on the ~~NASDAQ Capital Market~~Exchange. The Shares shall have been listed and authorized for trading on the ~~NASDAQ Capital Market~~ Exchange prior to the first Settlement Date, and satisfactory evidence of such actions shall have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the ~~NASDAQ Capital Market~~Exchange. (k) On the date of the first Placement Notice and thereafter on each Bringdown Date, Ellenoff Gxxxxxxx & Schole LLP, counsel for the Agent, shall not have reasonably determined that the Base Prospectus, the Prospectus, or any Permitted Free Writing Prospectus, as of such date, includes an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's ’s counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably request.

Appears in 3 contracts

Samples: Equity Distribution Agreement (NAKED BRAND GROUP LTD), Equity Distribution Agreement (NAKED BRAND GROUP LTD), Equity Distribution Agreement (NAKED BRAND GROUP LTD)

Conditions of Agent’s Obligations. The Company, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to ~~(i)~~ the accuracy ~~of,~~ of the representations and warranties of the Company and the Bank herein contained as of the date ~~hereof~~hereof and the Closing Time, ~~each Bringdown Date,~~ to the accuracy of the statements of officers and ~~each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements~~ directors of the Company ~~contained herein~~and the Bank made pursuant to the provisions hereof, ~~(ii)~~ to the performance by the Company and the Bank of ~~its~~ their obligations ~~hereunder~~ hereunder, and ~~(iii)~~ to the following ~~additional~~ further conditions: (a) If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no No stop order suspending the effectiveness of the Registration ~~Statement~~ Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any ~~part thereof, any Rule 462(b)~~ prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or ~~any amendment thereof~~proceedings therefor initiated or threatened by the Division, ~~nor~~ the FRB or the FDIC, and no order suspending ~~or preventing~~ the ~~use~~ sale of the ~~Base Prospectus, the Prospectus or~~ Securities in any ~~Permitted Free Writing Prospectus~~ jurisdiction shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's satisfaction. (b) ~~The~~ At Closing Time, the Agent shall ~~not~~ have ~~advised~~ received: (1) The favorable opinion, dated as of Closing Time, of Xxxxxxxxxx Xxxxxxxx, counsel for the Company and the Bank, in form and substance satisfactory to counsel for the Agent, to the effect set forth on Exhibit A hereto. (2) The favorable opinion, dated as of Closing Time, of Xxxxxx, XxXxxxxxx & Fish LLP (“Xxxxxx”), counsel for the Agent, with respect to the matters set forth in clauses (i), (ii), (v), (vii), (viii) (solely as to preemptive rights arising by operation of law), (xv), (xvi) and (xviii) of Exhibit A and such other matters as the Agent may reasonably require. (3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Xxxxxxxxxx Xxxxxxxx and Xxxxxx shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration ~~Statement~~Statement (except for financial statements, notes to financial statements, stock valuation information and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the ~~Base Prospectus, the Prospectus~~time it became effective, or ~~any amendment or supplement thereto~~that the General Disclosure Package as of the Applicable Time, ~~or any Permitted Free Writing Prospectus, contains~~ contained an untrue statement of a material fact ~~which, in the Agent's opinion, is material,~~ or ~~omits~~ omitted to state a material fact ~~which, in the Agent's opinion, is material and is~~ required to be stated therein or is necessary to make the statements therein not misleading or that the Prospectus (~~i) with respect~~ except for financial statements, notes to financial statements, stock valuation information and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration ~~Statement~~Statement became effective or at Closing Time, ~~not misleading and (ii) with respect~~ included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the ~~Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus~~statements therein, in the light of the circumstances under which they were made, not misleading. To the extent not inconsistent with the assumptions, qualifications and limitations which shall be set forth in the opinion, the opinions of Xxxxxxxxxx Xxxxxxxx will be governed by, and shall be interpreted in accordance with, the Legal Opinion Accord (the “Accord”) of the American Bar Association Section of Business Law (1991). The clause “to counsel’s knowledge,” “to such counsel’s actual knowledge” or similar terms used in said opinion shall have the meaning set forth in the Accord for the term “Actual Knowledge.” In giving their opinions, Xxxxxxxxxx Xxxxxxxx and Xxxxxx may rely as to matters of fact on certificates of officers and directors of the Company, the Bank and the Subsidiaries and certificates of public officials, and Xxxxxx may also rely on the opinion of Xxxxxxxxxx Xxxxxxxx. (c) ~~Except as set forth or contemplated~~ At Closing Time referred to in ~~the Base Prospectus~~Section 2, the ~~Prospectus~~ Company and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company or the Bank by the Division, or any ~~Permitted Free Writing Prospectus~~other regulatory authority other than those which the Division permits to be completed after the Conversion. (d) At Closing Time, ~~subsequent to~~ there shall not have been, since the date hereof or since the respective dates as of which information is given ~~therein~~in the Registration Statement and the General Disclosure Package, including the ~~Company shall not have incurred~~ Prospectus, any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any adverse change in the ~~capital stock~~financial condition, results of operations, business affairs or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in the Prospectus), or any material change in the short-term or long-term debt, prospects of the Company, ~~or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (~~the Bank and the Subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of ~~business)~~business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company and of the Bank and the Chief Financial Officer of the Company and of the Bank, dated as of Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the Bank or any of the Subsidiaries from the latest date as of which the financial condition of the Company, the Bank or any of the Subsidiaries, as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice (iii) neither the Company nor the Bank shall have received from the Division, the FRB or the FDIC any order or direction (oral or written) to make any material ~~loss~~ change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company or the Bank, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company and the Bank has complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by ~~strike~~the Commission, ~~fire~~and (vii) no order suspending the Subscription and Community or Public Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or threatened by the Division, ~~flood~~the FRB or the FDIC and no person has sought to obtain regulatory or judicial review of the action of the Division in approving the Plan in accordance with the Conversion Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Holding Company Application. (e) At the Closing Time, ~~earthquake~~the Agent shall have received a certificate of the President and Chief Executive Officer of the Company and of the Bank and the Chief Financial Officer of the Company and of the Bank, ~~accident~~ dated as of Closing Time, to the effect that (i) he has reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on his knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on his knowledge, the financial statements and other ~~calamity~~financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, fairly present the financial condition and results of operations of the Bank and the Subsidiaries as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus; (iv) he is responsible for establishing and maintaining internal controls; (v) he has designed such internal controls to ensure that material information relating to the Company and the Bank is made known to them; (vi) he has evaluated the effectiveness of their internal controls; and (vii) he has disclosed to Wolf & Co., P.C. and the audit committee (A) all significant deficiencies in the design or operation of internal controls which could adversely affect the Company’s and the Bank’s ability to record, process, summarize, and report financial data, and have identified for the Company’s and the Bank’s auditors any material weaknesses in internal controls and (B) any fraud, whether or not ~~covered by insurance~~material, ~~incurred by~~ that involves management or other employees who have a significant role in the Company’s and the Bank’s internal controls. (f) At the time of the execution of this Agreement, the Agent shall have received from Wolf & Co., P.C., a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the Company, the Bank and the Subsidiaries within the meaning of the Code of Ethics of the American Institute of Certified Public Accountants, the Securities Act, the Securities Act Regulations and the Conversion Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and Wolf & Co., P.C. set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the Company included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations and the Conversion Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” and under “Recent Developments” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the Bank or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings of the Bank, in each case as compared with the amounts shown in the consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from October 1, 2011 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Company, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company and the Bank identified in such letter. (g) At Closing Time, the Agent shall have received from Wolf & Co., P.C. a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five days prior to Closing Time. (h) At Closing Time, the Securities shall have been approved for trading on the Nasdaq Capital Market upon notice of issuance. (i) At Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal. (j) At Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent. (k) At any time prior to Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in ~~any such case described above, in~~ the judgment of the Agent~~'s judgment~~, ~~makes~~ is so material and adverse as to make it ~~impractical~~ impracticable to market the Securities or ~~inadvisable~~ to ~~offer~~ enforce contracts, including subscriptions or ~~deliver~~ orders, for the Shares. (d) The Company shall have performed each of its obligations under Section 4(p). (e) The Company shall have performed each of its obligations under Section 4(q). (f) The Company shall have performed each of its obligations under Section 4(r). (g) FINRA shall not have raised any objection to the fairness and reasonableness sale of the ~~terms~~ Securities, and ~~arrangements under this Agreement.~~ (hii) ~~All filings with~~ trading generally on either the ~~Commission required by Rule 424 under~~ New York Stock Exchange or the Securities Act to have been filed by the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished to Agent and the Agent's counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common Shares Nasdaq Stock Market shall not have been ~~suspended on the NASDAQ Capital Market. The Shares~~ suspended, and minimum or maximum prices for trading shall not have been ~~listed and authorized~~ fixed, or maximum ranges for ~~trading on~~ prices for securities have been required, by either of said Exchanges or by order of the ~~NASDAQ Capital Market prior to the first Settlement Date~~Commission or any other governmental authority, and ~~satisfactory evidence of such actions~~ a banking moratorium shall not have been ~~provided to the Agent and its counsel~~declared by Federal, which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably requestMassachusetts or New York authorities.

Appears in 2 contracts

Samples: Agency Agreement (Wellesley Bancorp, Inc.), Agency Agreement (Wellesley Bancorp, Inc.)

Conditions of Agent’s Obligations. The Company, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to ~~(i)~~ the accuracy ~~of,~~ of the representations and warranties of the Company and the Bank herein contained as of the date ~~hereof~~hereof and the Closing Time, ~~each Bringdown Date,~~ to the accuracy of the statements of officers and ~~each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements~~ directors of the Company ~~contained herein~~and the Bank made pursuant to the provisions hereof, ~~(ii)~~ to the performance by the Company and the Bank of ~~its~~ their obligations ~~hereunder~~ hereunder, and ~~(iii)~~ to the following ~~additional~~ further conditions: (a) If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or ~~any part thereof~~proceedings therefor initiated or threatened by the Commission, ~~any Rule 462(b) Registration Statement,~~ no order suspending the Offerings or ~~any amendment thereof, nor suspending or preventing the~~ authorization for final use of the ~~Base Prospectus, the Prospectus or any Permitted Free Writing~~ Prospectus shall have been ~~issued;~~ issued or proceedings therefor initiated or threatened by the OTS and no ~~proceedings for~~ order suspending the ~~issuance~~ sale of ~~such an order~~ the Securities in any jurisdiction shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's satisfactionissued. (b) ~~The~~ At Closing Time, the Agent shall ~~not~~ have ~~advised~~ received: (1) The favorable opinion, dated as of Closing Time, of Xxxxxxxxxx Xxxxxxxx, counsel for the Company and the Bank, in form and substance satisfactory to counsel for the Agent, to the effect set forth in Appendix A. (2) The favorable opinion, dated as of Closing Time, of SNR Xxxxxx, counsel for the Agent, with respect to the matters set forth in clauses (i), (ii), (v), (vii), (viii) (solely as to preemptive rights arising by operation of law), (xv), (xvi) and (xviii) of Appendix A and such other matters as the Agent may reasonably require. (3) In giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Xxxxxxxxxx Xxxxxxxx and SNR Xxxxxx shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration ~~Statement~~Statement (except for financial statements and schedules, notes to financial statements, stock valuation information and other financial or statistical data included therein or omitted therefrom, as to which counsel need make no statement), at the ~~Base Prospectus~~time it became effective, ~~the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains~~ contained an untrue statement of a material fact ~~which, in the Agent's opinion, is material,~~ or ~~omits~~ omitted to state a material fact ~~which, in the Agent's opinion, is material and is~~ required to be stated therein or is necessary to make the statements therein not misleading or that the Prospectus (~~i) with respect~~ except for financial statements and schedules, notes to financial statements, stock valuation information and other financial or statistical data included therein or omitted therefrom, as to which counsel need make no statement), at the time the Registration ~~Statement~~Statement became effective or at the Closing Time, ~~not misleading and (ii) with respect~~ or that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the ~~Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus~~statements therein, in the light of the circumstances under which they were made, not misleading. To the extent not inconsistent with the assumptions, qualifications and limitations which shall be set forth in the opinion, the opinions of Xxxxxxxxxx Xxxxxxxx and SNR Xxxxxx will be governed by, and shall be interpreted in accordance with, the Legal Opinion Accord (the “Accord”) of the American Bar Association Section of Business Law (1991). The clause “to counsel’s knowledge,” “to such counsel’s actual knowledge” or similar terms used in said opinion shall have the meaning set forth in the Accord for the term “Actual Knowledge.” In giving their opinions, Xxxxxxxxxx Xxxxxxxx and SNR Xxxxxx may rely as to matters of fact on certificates of officers and directors of the Company and the Bank and certificates of public officials, and SNR Xxxxxx may also rely on the opinion of Xxxxxxxxxx Xxxxxxxx. (c) ~~Except as set forth or contemplated~~ At Closing Time referred to in ~~the Base Prospectus~~Section 2, the ~~Prospectus~~ Company and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company or the Bank by the OTS, or any ~~Permitted Free Writing Prospectus~~other regulatory authority other than those which the OTS permits to be completed after the Conversion. (d) At Closing Time, ~~subsequent to~~ there shall not have been, since the date hereof or since the respective dates as of which information is given ~~therein~~in the Registration Statement and the General Disclosure Package, including the ~~Company shall not have incurred~~ Prospectus, any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any adverse change in the ~~capital stock~~financial condition, results of operations, business affairs or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in the Prospectus), or any material change in the short-term or long-term debt, prospects of the Company, ~~or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (~~the Bank and the Subsidiaries considered as one enterprise, whether or not arising in the ordinary course of ~~business)~~business consistent with past practice, and the Agent shall have received a certificate of the Chairman and Chief Executive Officer and the President and Chief Operating Officer of the Company and of the Bank, dated as of Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the Bank or the Subsidiaries from the latest date as of which the financial condition of the Company or the Bank as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither the Company nor the Bank shall have received from the OTS or the FDIC any order or direction (oral or written) to make any material ~~loss~~ change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the business affairs, financial condition, results of operations or prospects of the Company or the Bank, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company and the Bank has complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by ~~strike~~the Commission and (vii) no order suspending the Subscription and Community Offerings or Syndicated Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or threatened by the OTS and no person has sought to obtain regulatory or judicial review of the action of the OTS in approving the Plan in accordance with the Conversion Regulations nor has any person sought to obtain regulatory or judicial review of the action of the OTS in approving the Holding Company Application. (e) At the Closing Time, ~~fire~~the Agent shall have received a certificate of the Chairman and Chief Executive Officer and the President and Chief Operating Officer of the Company and of the Bank, ~~flood~~dated as of Closing Time, ~~earthquake~~to the effect that (i) they have reviewed the contents of the Registration Statement and the Prospectus and the General Disclosure Package; (ii) based on their knowledge, ~~accident~~ the Registration Statement and the General Disclosure Package, including the Prospectus, do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; (iii) based on their knowledge, the financial statements and other ~~calamity~~financial information included in the Registration Statement and the Prospectus and the General Disclosure Package fairly present the financial condition and results of operations of the Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus; (iv) they are responsible for establishing and maintaining internal controls; (v) they have designed such internal controls to ensure that material information relating to the Company and the Bank is made known to them; (vi) they have evaluated the effectiveness of their internal controls; and (vii) they have disclosed to Xxxxxxx & Company and the audit committee (A) all significant deficiencies in the design or operation of internal controls which could adversely affect the Company’s and the Bank’s ability to record, process, summarize, and report financial data, and have identified for the Company’s and the Bank’s auditors any material weaknesses in internal controls and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s and the Bank’s internal controls. (f) At the time of the execution of this Agreement, the Agent shall have received from Xxxxxxx & Company a letter dated such date, in form and substance satisfactory to the Agent, to the effect that (i) they are independent public accountants with respect to the Company and the Bank within the meaning of the Code of Ethics of the American Institute of Certified Public Accountants, the Securities Act, the Securities Act Regulations, and the Conversion Regulations and they are registered with the PCAOB, they are not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act; (ii) it is their opinion that the financial statements and supporting schedules included in the Registration Statement and covered by ~~insurance, incurred~~ their opinion therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the ~~Company~~Agent and Xxxxxxx & Company set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited financial statements and supporting schedules of the Bank included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations and the Conversion Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” or under “Recent Developments” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited financial statements as of and for the dates and periods presented under such caption or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the long-term or short-term debt of the Bank or any decrease in total assets, the allowance for loan losses, total deposits or retained earnings of the Bank, in each case as compared with the amounts shown in the balance sheet included in the Registration Statement or, (D) during the period from September 30, 2010 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Bank, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and the General Disclosure Package, including the Prospectus, and which are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company and the Bank identified in such letter. (g) At Closing Time, the Agent shall have received from Xxxxxxx & Company a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five days prior to Closing Time. (h) At Closing Time, the Securities shall have been approved for trading on the OTC Bulletin Board upon notice of issuance, provided that the Agent has timely filed the application for such trading. (i) At Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal. (j) At Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent. (k) At any time prior to Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in ~~any such case described above, in~~ the judgment of the Agent~~'s judgment~~, ~~makes~~ are so material and adverse as to make it ~~impractical~~ impracticable to market the Securities or ~~inadvisable~~ to ~~offer~~ enforce contracts, including subscriptions or ~~deliver~~ orders, for the Shares. (d) The Company shall have performed each of its obligations under Section 4(p). (e) The Company shall have performed each of its obligations under Section 4(q). (f) The Company shall have performed each of its obligations under Section 4(r). (g) FINRA shall not have raised any objection to the fairness and reasonableness sale of the ~~terms~~ Securities, and ~~arrangements under this Agreement.~~ (hii) ~~All filings with~~ trading generally on either the ~~Commission required by Rule 424 under~~ New York Stock Exchange or the Securities Act to have been filed by the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished to Agent and the Agent's counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common Shares Nasdaq Stock Market shall not have been ~~suspended on the NASDAQ Capital Market. The Shares~~ suspended, and minimum or maximum prices for trading shall not have been ~~listed and authorized~~ fixed, or maximum ranges for ~~trading on~~ prices for securities have been required, by either of said Exchanges or by order of the ~~NASDAQ Capital Market prior to the first Settlement Date~~Commission or any other governmental authority, and ~~satisfactory evidence of such actions~~ a banking moratorium shall not have been ~~provided to the Agent and its counsel~~declared by Federal, which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably requestNew York or Maryland authorities.

Appears in 2 contracts

Samples: Agency Agreement (Fraternity Community Bancorp Inc), Agency Agreement (Fraternity Community Bancorp Inc)

Conditions of Agent’s Obligations. The obligations of the Agent hereunder are subject to (i) the accuracy ~~of, as~~ of the representations and warranties on the part of the Company on the date hereof, any applicable date referred to in Section 4(l), each ~~Bringdown~~ Filing Date, each Applicable Time and as of each ~~Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein~~Settlement Date, (ii) the performance by the Company of its obligations hereunder and (iii) the following additional ~~conditions~~conditions precedent: (ai) If No stop order with respect to the ~~filing~~ effectiveness of any one of the ~~Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required~~ Registration Statement shall have been issued under the Securities Act or ~~the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement~~proceedings initiated under Section 8(d) or ~~such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8~~8(e) ~~or Rule 164(b)); the Registration Statement shall remain effective; no stop order suspending the effectiveness~~ of the ~~Registration Statement~~ Securities Act and no order directed at any document incorporated by reference therein and no order preventing or ~~any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor~~ suspending ~~or preventing~~ the use of the ~~Base Prospectus~~Prospectus has been issued by the Commission, and no suspension of the ~~Prospectus~~ qualification of the Shares for offering or sale in any ~~Permitted Free Writing Prospectus shall have been issued; no~~ jurisdiction, or to the knowledge of the Company or the Agent of the initiation or threatening of any proceedings for ~~the issuance~~ any of such ~~an order shall have been initiated or threatened~~purposes, has occurred; ~~and any request of the Commission for additional information~~ (~~to be included in~~ ii) the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's satisfaction. (b) The Agent shall not have advised the Company that the Registration Statement, the Base Prospectus, the Prospectus, or any amendment or supplement Statement and all amendments thereto, or ~~any Permitted Free Writing Prospectus~~modifications thereof, ~~contains~~ if any, shall not contain an untrue statement of a material fact ~~which, in the Agent's opinion, is material,~~ or ~~omits~~ omit to state a material fact ~~which, in the Agent's opinion, is material and is~~ required to be stated therein or is necessary to make the statements therein not misleading; (iiii) ~~with respect to the Registration Statement, not misleading and (ii) with respect to the Base Prospectus,~~ the Prospectus and all amendments or ~~any Permitted Free Writing Prospectus~~supplements thereto, or modifications thereof, if any, and the General Disclosure Package shall 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 the light of the circumstances under which they ~~were~~ are made, not misleading. (cb) ~~Except as set forth~~ No material and unfavorable change, financial or contemplated in the Base Prospectus, the Prospectus and any Permitted Free Writing Prospectus, subsequent to the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock otherwise (other than as ~~a result of the exercise of any currently outstanding options or warrants that are disclosed~~ referred to in the Registration Statement and Prospectus), ~~or any material change~~ in the ~~short-term~~ business, condition, net worth or ~~long-term debt,~~ prospects of the ~~Company,~~ Company shall occur or ~~any Material Adverse Effect or any development that would be reasonably likely~~ become known and no transaction which is material and unfavorable to ~~result in a Material Adverse Effect (whether or not arising in~~ the ~~ordinary course of business), or any material loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred~~ Company shall have been entered into by the Company. (c) The Company shall furnish or cause to be furnished to the Agent, ~~the effect~~ on every date specified in Section 4(m) hereof, opinions of ~~which~~External Company Counsel and Internal Company Counsel, in ~~any~~ each case addressed to the Agent, and dated as of such ~~case described above~~date, and in form satisfactory to the Agent and its counsel, substantially in the form of Exhibit X-0, X-0 and Exhibit B, respectively, attached hereto (subject, in each case, to limitations, qualifications, exceptions and assumptions satisfactory to the Agent~~'s judgment, makes it impractical or inadvisable to offer or deliver the Shares~~). (d) ~~The Company~~ At the dates specified in Section 4(n) hereof, the Agent shall have ~~performed each~~ received from the Accountants letters dated the date of delivery thereof and addressed to the Agent in form and substance satisfactory to the Agent and its ~~obligations under Section 4(p)~~counsel. (e) The Company will deliver to the Agent a certificate, prior to the earlier of (x) four business days following each Filing Date or (y), to the extent there shall ~~have~~ be an Applicable time on or following such Filing Date, prior to such Applicable Time, (each, a “Certificate Date”), of two of its executive officers to the effect that (i) the representations and warranties of the Company as set forth in this Agreement are true and correct as of the Certificate Date, (ii) the Company has performed ~~each~~ or shall perform such of its obligations under this Agreement as are to be performed at or before each such Certificate Date, and (iii) the conditions set forth in paragraphs (a) and (b) of this Section ~~4(q)~~5 have been met. In addition, on each Certificate Date, the certificate shall also state that the Shares sold during the period to which the certificate relates have been duly and validly authorized by the Company and that all corporate action required to be taken for the authorization, issuance and sale of the Shares on that date has been validly and sufficiently taken. (f) The Company shall have performed each of its obligations under Section 4(r). (g) FINRA shall not have raised any objection to the fairness and reasonableness of the terms and arrangements under this Agreement. (h) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by each Applicable Time or related Settlement Date, as the ~~Settlement Date~~ case may be, shall have been made within the applicable time period prescribed for such filing by Rule ~~424~~424 (without reliance on Rule 424(b)(8)). (g) The Shares shall have been approved for listing on the NYSE, subject only to notice of issuance at or prior to the Settlement Date. (h) The Company shall have furnished to the Agent such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement and the Prospectus as of the Settlement Date as the Agent may reasonably request. (i) The Company shall have ~~furnished~~ paid the required Commission filing fees relating to ~~Agent~~ the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the ~~Agent's counsel such additional documents~~Securities Act and, ~~certificates and evidence as they may~~ if applicable, shall have ~~reasonably requested~~updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b). (j) ~~Trading in the Common Shares~~ The NASD shall not have ~~been suspended on~~ raised any objection with respect to the ~~NASDAQ Capital Market. The~~ fairness and reasonableness of the terms and arrangements under this Agreement. (k) No amendment or supplement to the Registration Statement or Prospectus, including documents deemed to be incorporated by reference therein, shall be filed to which the Agent objects in writing. (l) Between the time of execution of this Agreement and the time of sale of Shares through the Agent, as the case may be, there shall not have occurred any downgrading, nor shall any notice or announcement have been ~~listed and authorized for trading on~~ given or made of (i) any intended or potential downgrading or (ii) any review or possible change that does not indicate an improvement, in the ~~NASDAQ Capital Market prior to~~ rating accorded any securities of or guaranteed by the ~~first Settlement Date, and satisfactory evidence of such actions shall have been provided to~~ Company by any “nationally recognized statistical rating organization,” as that term is defined in Rule 436(g)(2) under the Agent and its counsel, which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably requestSecurities Act.

Appears in 2 contracts

Samples: Atm Equity Sales Agreement (Annaly Capital Management Inc), Atm Equity Offering Sales Agreement (Annaly Capital Management Inc)

Conditions of Agent’s Obligations. The obligations of the Agent hereunder are subject to (i) the accuracy of, as of the date hereof, each Bringdown Date, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein, (ii) the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no stop order suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Base Prospectus, Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, Prospectus Supplement, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's ’s satisfaction. (b) The Agent shall not have advised the Company that the Registration Statement, the Base Prospectus, Prospectus Supplement, the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which, in the Agent's ’s opinion, is material, or omits to state a fact which, in the Agent's ’s opinion, is material and is required to be stated therein or is necessary to make the statements therein (i) with respect to the Registration Statement, not misleading and (ii) with respect to the Base Prospectus, Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading. (c) Except as set forth or contemplated in the Base Prospectus, Prospectus Supplement, the Prospectus and any Permitted Free Writing Prospectus, subsequent to the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding stock options or warrants that are disclosed in the Prospectus), or any material change in the short-term or long-term debt, of the Company, or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake, epidemic, pandemic, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described above, in the Agent's ’s judgment, makes it impractical or inadvisable to offer or deliver the Shares. (d) The Company shall have performed each of its obligations under Section ~~4(p~~3(p). (e) The Company shall have performed each of its obligations under Section ~~4(q~~3(q). (f) The Company shall have performed each of its obligations under ~~Section 4(r~~Sections 3(r), (s), (t) and (u). (g) FINRA shall not have raised any objection to the fairness and reasonableness of the terms and arrangements under this Agreement. (h) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished to Agent and the Agent's ’s counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common ~~Shares~~ Stock shall not have been suspended on ~~the NASDAQ Capital Market~~Nasdaq. The Shares shall have been listed and authorized for trading on ~~the NASDAQ Capital Market~~ Nasdaq prior to the first Settlement Date, and satisfactory evidence of such actions shall have been provided to the Agent and its counsel, which may include oral confirmation from a representative of ~~the NASDAQ Capital Market~~Nasdaq. (k) The Company shall have in place a directors and officers insurance policy, in form and substance reasonably satisfactory to Agent. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's ’s counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably request.

Appears in 2 contracts

Samples: At the Market Issuance Sales Agreement (BranchOut Food Inc.), At the Market Issuance Sales Agreement (Sigma Additive Solutions, Inc.)

Conditions of Agent’s Obligations. The Placement Agents’ and each other Agent’s obligations ~~of the Agent~~ hereunder are subject to ~~(i)~~ the accuracy ~~of,~~ in all material respects at and (except as otherwise stated herein) as of the date ~~hereof,~~ hereof and at and as of each ~~Bringdown~~ Closing Date, ~~and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements~~ of the ~~Company contained herein, (ii) the performance~~ representations and warranties made herein by the Company to the compliance in all material respects at and as of each Closing Date by the Company with its ~~obligations hereunder~~ covenants and ~~(iii)~~ agreements herein contained and other provisions hereof to be satisfied at or prior to each Closing Date and to the following additional conditions: (a) If the ~~filing of~~ Placement Agent shall not have stated in writing prior to each Closing Date to the Company that the Base Prospectus, Prospectus Supplement or any Exchange Act Document, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no stop order suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's satisfaction. (b) The Agent shall not have advised the Company that the Registration Statement, the Base Prospectus, the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, thereto contains an untrue statement of fact which, in the Placement Agent's ’s reasonable opinion, is material, or omits to state a fact which, in the reasonable opinion of the Placement Agent~~'s opinion~~, ~~is material and is required to be stated therein or~~ is necessary to make the statements ~~therein (i) with respect to the Registration Statement, not misleading and (ii) with respect to the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus~~therein, in light of the circumstances under which they were made, not misleading. (cb) ~~Except as set forth~~ the Placement Agent shall have received a certificate, dated the Closing Date, on behalf of the Company by the Chief Executive Officer or ~~contemplated in~~ the ~~Base Prospectus~~President and the chief financial or accounting officer of the Company to the effect that: (i) To the best of the knowledge of the signers, the ~~Prospectus~~ representations and ~~any Permitted Free Writing Prospectus~~warranties of the Company in this Agreement are true and correct in all material respects at and as of the Closing Date, ~~subsequent~~ and the Company has complied in all material respects with all the agreements and satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the ~~respective dates as~~ Closing Date; (ii) Between the date of ~~which information is given therein~~this Agreement and the Closing Date, no litigation has been instituted or, to the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in the Prospectus), or any material change in the short-term or long-term debt, Knowledge of the Company, threatened against the Company or the Company of a character required to be disclosed in an Exchange Act Document, that has not been so disclosed to the Agents; and (iii) Between the date of this Agreement and the Closing Date, there has not been any ~~Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising~~ material adverse change in the ~~ordinary course of~~ financial condition, business), or ~~any material loss by strike, fire, flood, earthquake, accident~~ results of operations of the Company or ~~other calamity, whether or not covered by insurance, incurred by~~ the Company~~, the effect of which, in any such case described above, in the Agent's judgment, makes it impractical or inadvisable to offer or deliver the Shares~~. (d) The Company shall have performed each of its obligations under Section 4(p). (e) The Company shall have performed each of its obligations under Section 4(q). (f) The Company shall have performed each of its obligations under Section 4(r). (g) FINRA shall not have raised any objection to the fairness and reasonableness of the terms and arrangements under this Agreement. (h) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (ic) The Company shall have furnished to ~~Agent and~~ the ~~Agent's counsel~~ Placement Agents such additional ~~documents,~~ certificates ~~and evidence~~ as ~~they~~ the Placement Agents may have reasonably ~~requested~~requested as to the accuracy, at and as of the Closing Date, of the representations and warranties made herein by it, as to compliance at and as of the Closing Date by it with its covenants and agreements herein contained and other provisions hereof to be satisfied at or prior to the Closing Date and as to other conditions to the Agents’ obligations hereunder. (jd) ~~Trading~~ The Placement Agents shall have received from outside counsel to the Company such counsel’s written opinion, addressed to the Placement Agents, with reliance language for any authorized co-placement agent or selected dealer, date as of the Closing Date, in form and substance reasonably satisfactory to the ~~Common Shares~~ Placement Agents. (e) The Placement Agents shall have received a “cold comfort” letter, in customary form and substance, from the Company’s independent auditors. If any of the conditions provided for in this Section 9 shall not have been ~~suspended on~~ satisfied when and as required by this Agreement, this Agreement may be terminated by the ~~NASDAQ Capital Market. The Shares shall have been listed and authorized for trading on~~ Placement Agents by notifying the ~~NASDAQ Capital Market~~ Company of such termination in writing at or prior to ~~the first Settlement~~ a Closing Date, ~~and satisfactory evidence~~ but the Placement Agents shall be entitled to waive any of such actions shall have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably requestconditions.

Appears in 2 contracts

Samples: Co Placement Agent Agreement (Polymedix Inc), Co Placement Agent Agreement (Polymedix Inc)

Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to ~~(i)~~ the accuracy ofof the representations and warranties of the Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC and the Bank made pursuant to the provisions hereof, ~~each Bringdown Date, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein, (ii)~~ to the performance by the ~~Company~~ Company, the MHC and the Bank of ~~its~~ their obligations ~~hereunder~~ hereunder, and ~~(iii)~~ to the following ~~additional~~ further conditions: (a) If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or ~~any part thereof~~proceedings therefor initiated or threatened by the Commission, ~~any Rule 462(b) Registration Statement,~~ no order suspending the Offerings or ~~any amendment thereof, nor suspending or preventing~~ the authorization for final use effectiveness of the ~~Base Prospectus, the Prospectus or any Permitted Free Writing~~ Prospectus shall have been ~~issued;~~ issued or proceedings therefor initiated or threatened by the Commission or the FRB, and no ~~proceedings for~~ order suspending the ~~issuance~~ sale of ~~such an order~~ the Securities in any jurisdiction shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's satisfactionissued. (b) ~~The~~ At Closing Time, the Agent shall ~~not~~ have ~~advised~~ received: (i) The written opinion contained in Exhibit 1 hereof, dated as of Closing Time, of Lxxx Xxxxxx, PC, special counsel for the ~~Company~~ Company, the MHC and the Bank, in form and substance satisfactory for the Agent. (ii) The favorable opinion contained in Exhibit 2 hereof, dated as of Closing Time, of Nxxxxx, MxXxxxxxx & Fish LLP, counsel for the Agent, in form and substance satisfactory to the Agent. (iii) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Lxxx Xxxxxx, PC and Nxxxxx, MxXxxxxxx & Fish, LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration ~~Statement~~Statement (except for financial statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the ~~Base Prospectus~~time it became effective, ~~the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains~~ contained an untrue statement of a material fact ~~which, in the Agent's opinion, is material,~~ or ~~omits~~ omitted to state a material fact ~~which, in the Agent's opinion, is material and is~~ required to be stated therein or is necessary to make the statements therein not misleading or that the Prospectus (~~i) with respect~~ except for financial statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration ~~Statement~~Statement became effective or at the Closing Time, ~~not misleading and (ii) with respect~~ or that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted to state a material fact necessary in order to make the ~~Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus~~statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, Lxxx Xxxxxx, PC, and Nxxxxx, MxXxxxxxx & Fish, LLP may rely as to matters of fact on certificates of officers and directors of the Company, the MHC, the Bank and the Subsidiaries, as applicable, and certificates of public officials, and Nxxxxx, MxXxxxxxx & Fish, LLP may also rely on the opinion of Lxxx Xxxxxx, PC with respect to matters set forth in paragraphs [___________] therein. (c) ~~Except as set forth or contemplated~~ At Closing Time referred to in ~~the Base Prospectus~~Section 2, the ~~Prospectus~~ Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Offerings in accordance with the Plan, the applicable Massachusetts Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Offerings imposed upon the Company, the MHC or the Bank by the Division, the FRB or any ~~Permitted Free Writing Prospectus~~other regulatory authority, ~~subsequent~~ other than those which the Division, the FRB or such other regulatory authority permits to be completed after the Offerings. (d) At Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given ~~therein~~in the Registration Statement and the Prospectus, ~~the Company shall not have incurred~~ any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any adverse change in the ~~capital stock~~financial condition, results of operations, business affairs or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in the Prospectus), or any material change in the short-term or long-term debt, prospects of the Company, ~~or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (~~the MHC, the Bank and the Subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of ~~business)~~business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC and of the Bank and the Chief Financial or ~~any~~ Chief Accounting Officer of the Company, of the MHC and of the Bank, dated as of Closing Time, to the effect that (i) there has been no such material ~~loss by strike~~adverse change, ~~fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred~~ (ii) there shall have been no material transaction entered into by the Company, the MHC, or the Bank from the latest date as of which the financial condition of the Company, the MHC or the Bank is set forth in the Registration Statement and the Prospectus, other than transactions specifically disclosed therein and transactions in the ordinary course of business consistent with past practice (iii) neither the Company, the MHC, nor the Bank shall have received from the Division, the FRB or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC or the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC and the Bank has complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the best of their knowledge after inquiry, threatened by the Commission, and (vii) no order suspending the Subscription and Community Offering or Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or, to the best of their knowledge, threatened by the Division and no person has sought to obtain regulatory or judicial review of the action of the Division in approving the Plan in accordance with the Massachusetts Regulations. (e) At the Closing Time, the Agent shall have received a certificate of the Chief Executive Officer and President of the Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC and of the Bank, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the Prospectus fairly present the financial condition and results of operations of the Company and any subsidiary, as of and for the dates and periods covered by the Registration Statement and the Prospectus. (f) At the time of the execution of this Agreement, the Agent shall have received from Wxxxxxxxxx & Hxxxxx, P.C. a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the Company, the MHC, the Bank and the Subsidiaries within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the Massachusetts Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Sxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and Wxxxxxxxxx & Hxxxxx, P.C. set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the Company included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations and the Massachusetts Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) days prior to the date of this Agreement, there has been any increase in the long-term or short-term debt of the Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or stockholders’ equity of the Company, in each case as compared with the amounts shown in the consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from January 1, 2015 to a specified date not more than five (5) days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Company, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or will likely occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and Prospectus and which are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the MHC and the Bank identified in such letter. (g) At Closing Time, the Agent shall have received from Wxxxxxxxxx & Hxxxxx, P.C. a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to Closing Time. (h) At Closing Time, the Securities and the Foundation Shares shall have been approved for quotation on the Nasdaq Capital Market upon notice of issuance. (i) At Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its Appraisal. (j) At Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent. (k) At any time prior to Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in ~~any such case described above, in~~ the judgment of the Agent~~'s judgment~~, ~~makes~~ is so material and adverse as to make it ~~impractical~~ impracticable to market the Securities or ~~inadvisable~~ to ~~offer~~ enforce contracts, including subscriptions or ~~deliver~~ orders, for the Shares. (d) The Company shall have performed each of its obligations under Section 4(p). (e) The Company shall have performed each of its obligations under Section 4(q). (f) The Company shall have performed each of its obligations under Section 4(r). (g) FINRA shall not have raised any objection to the fairness and reasonableness sale of the ~~terms~~ Securities, and ~~arrangements under this Agreement.~~ (hii) ~~All filings with~~ trading generally on either the ~~Commission required by Rule 424 under~~ American Stock Exchange, the ~~Securities Act to have been filed by~~ New York Stock Exchange or the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished to Agent and the Agent's counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common Shares Nasdaq Stock Market shall not have been ~~suspended on the NASDAQ Capital Market. The Shares~~ suspended, and minimum or maximum prices for trading shall not have been ~~listed and authorized~~ fixed, or maximum ranges for ~~trading on~~ prices for securities have been required, by either of said Exchanges or by order of the ~~NASDAQ Capital Market prior to the first Settlement Date~~Commission or any other governmental authority, and ~~satisfactory evidence of such actions~~ a banking moratorium shall not have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably requestdeclared by either Federal or Massachusetts authorities.

Appears in 2 contracts

Samples: Agency Agreement (Provident Bancorp, Inc.), Agency Agreement (Provident Bancorp, Inc.)

Conditions of Agent’s Obligations. The MHC, the Company, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to ~~(i)~~ the accuracy ofof the representations and warranties of the MHC, the Company and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Bank, the MHC and the Company made pursuant to the provisions hereof, ~~each Bringdown Date, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein, (ii)~~ to the performance by the MHC, the Company and the Bank of ~~its~~ their obligations ~~hereunder~~ hereunder, and ~~(iii)~~ to the following ~~additional~~ further conditions: (a) If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no No stop order suspending the effectiveness of the Registration ~~Statement~~ Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any ~~part thereof, any Rule 462(b)~~ prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or ~~any amendment thereof~~proceedings therefor initiated or, ~~nor suspending or preventing~~ to the ~~use~~ knowledge of the ~~Base Prospectus~~Company, threatened by the ~~Prospectus or~~ Commission and no order suspending the sale of the Securities in any ~~Permitted Free Writing Prospectus~~ jurisdiction shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's satisfaction. (b) ~~The~~ At the Closing Time, the Agent shall ~~not~~ have ~~advised~~ received: (1) The favorable opinion, dated as of the Closing Time, of Xxxx Xxxxxx, PC, counsel for the MHC, the Company and the Bank, in form and substance satisfactory to counsel for the Agent, as attached hereto as Exhibit A. (2) The favorable opinion, dated as of the Closing Time, of Silver, Xxxxxxxx, Taff & Xxxxxxx LLP, counsel for the Agent, as to such matters as the Agent may reasonably require. (3) In addition to giving their opinions required by subsections 5(b)(1) and 5(b)(2), respectively, of this Section, Xxxx Xxxxxx, PC and Silver, Xxxxxxxx, Xxxx & Xxxxxxx LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration ~~Statement~~Statement (except for financial statements, notes to financial statements, financial tables and other tabular, financial, pro forma, appraisal, accounting or statistical data included therein, as to which counsel need make no statement), at the ~~Base Prospectus~~time it became effective, ~~the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains~~ contained an untrue statement of a material fact ~~which, in the Agent's opinion, is material,~~ or ~~omits~~ omitted to state a material fact ~~which, in the Agent's opinion, is material and is~~ required to be stated therein or is necessary to make the statements therein not misleading or that the Prospectus (~~i) with respect~~ except for financial statements, notes to financial statements, financial tables and other tabular, financial, pro forma, appraisal, accounting or statistical data included therein, as to which counsel need make no statement), at the time the Registration ~~Statement~~Statement became effective, ~~not misleading and (ii) with respect to~~ as of the ~~Base Prospectus,~~ date of the Prospectus or ~~any Permitted Free Writing Prospectus~~at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, Xxxx Xxxxxx, PC and Silver, Xxxxxxxx, Xxxx & Xxxxxxx LLP may rely as to matters of fact on certificates of officers and directors of the MHC, the Company and the Bank and certificates of public officials. Silver, Xxxxxxxx, Taff & Xxxxxxx LLP may also rely on the opinion of Xxxx Xxxxxx, PC. (c) ~~Except as set forth or contemplated~~ At the Closing Time referred to in ~~the Base Prospectus~~Section 2 hereof, the ~~Prospectus~~ Company, the Bank and the MHC shall have completed in all material respects the conditions precedent to the Reorganization in accordance with the Plan, the applicable provisions of the MHC Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Reorganization imposed upon the Company, the MHC or the Bank by the FRB, the OCC, the FDIC or any ~~Permitted Free Writing Prospectus~~other regulatory authority other than those which the FRB, ~~subsequent~~ the OCC, the FDIC or any such other regulatory authority permit to be completed after the Reorganization is consummated. (d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in Registration Statement and the Prospectus), ~~or any material change in the short-term or long-term debt, of the Company, or~~ any Material Adverse ~~Effect or any development that would be reasonably likely to result in a Material Adverse Effect (~~Effect, whether or not arising in the ordinary course of business), and the Agent shall have received a certificate of the Chief Executive Officer of the MHC, the Company and the Bank and the Chief Financial Officer of the MHC, the Company and the Bank, dated as of Closing Time, to the effect that (i) there has been no such Material Adverse Effect, (ii) there shall have been no material transaction entered into by the MHC, the Company or the Bank from the latest date as of which the financial condition of the Company or the Bank, as set forth in the Registration Statement, the Prospectus and the General Disclosure Package, other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) none of the Company, the MHC or the Bank shall have received from the FRB, the OCC or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its respective business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which would materially and adversely affect the business, financial condition, results of operations or prospects of the Company, the MHC and the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC and the Bank have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company, the MHC or the Bank, threatened by the Commission, (vii) no order suspending the FRB’s approval of the MHC Notice, the OCC’s approval of the OCC Applications and the FDIC approval of the FDIC Application or the transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company, the MHC or the Bank, threatened by the FRB, the OCC or the FDIC and no person has sought to obtain regulatory or judicial review of the action of the FRB in approving the Plan in accordance with the MHC Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the MHC Notice, and (viii) no order suspending the Subscription and Community Offering or the Syndicated Offering, if any, or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the FRB. (e) At the Closing Time, the Agent shall have received a certificate of the Chief Executive Officer of the MHC, the Company and the Bank and the Chief Financial Officer of the MHC, the Company and the Bank, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement, the Prospectus and the General Disclosure Package; (ii) based on each of their knowledge, the Registration Statement, the Prospectus and the General Disclosure Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement, the Prospectus and the General Disclosure Package fairly present the financial condition and results of operations of the Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus; (iv) they are responsible for establishing and maintaining disclosure controls and procedures; (v) they have designed such disclosure controls and procedures to ensure that material information relating to the Bank is, and with respect to the Company, will be, made known to them; (vi) they have evaluated the effectiveness of their disclosure controls and procedures; and (vii) they have disclosed to Wolf & Company, P.C. and the audit committee (A) all significant deficiencies in the design or operation of disclosure controls and procedures which are reasonably likely to adversely affect the Bank’s ability to record, process, summarize, and report financial data, and have identified for the Company’s and the Bank’s independent registered public accounting firm any material ~~loss by strike, fire, flood, earthquake, accident or other calamity~~weaknesses in disclosure controls and procedures and (B) any fraud, whether or not material, that involves management or other employees who have, or with respect to the Company, will have, a significant role in the Company’s and the Bank’s disclosure controls and procedures. (f) As of the date hereof, the Agent shall have received from Wolf & Company, P.C. a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the MHC Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by ~~insurance, incurred~~ their opinion therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and Wolf & Company, P.C. set forth in detail in such letters, nothing has come to their attention which causes them to believe that, except as set forth in such letters, (A) the unaudited amounts of net interest income and net income set forth under “Selected Financial and Other Data” or under “Recent Developments” in the Prospectus and the General Disclosure Package do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited consolidated financial statements included in the Registration Statement, the Prospectus and the General Disclosure Package, (B) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the Bank or any decrease in consolidated total assets, investment securities, total loans, the allowance for loan losses, total deposits or total retained earnings of the Bank, in each case as compared with the amounts shown in the September 30, 2021 unaudited consolidated statements of financial condition presented under the “Recent Developments” caption in the Registration Statement or, (C) during the period from September 30, 2021 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Bank, or increases in interest expense or the provision for loan losses, except in all instances for increases or decreases which the Registration Statement, the Prospectus and the General Disclosure Package disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information that are included in the Registration Statement, Prospectus and the General Disclosure Package and that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Bank identified in such letter. (g) At the Closing Time, the Agent shall have received from Wolf & Company, P.C. a letter dated as of the Closing Time, to the effect that they reaffirm the statements made in the letters furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than three (3) business days prior to the Closing Time. (h) At the Closing Time, the Securities and the Foundation Shares shall have been approved for listing on the Nasdaq Stock Market. (i) At the Closing Time, the Bank shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal. (j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as it may require for the purpose of enabling it to pass upon the issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the issuance and contribution of the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent. (k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis, including any natural disasters or other force majeure events or any epidemic, pandemic or disease outbreak or escalation (including the COVID-19 pandemic to the extent there is any material escalation or material worsening of such pandemic or the effects thereof subsequent to the date hereof), the effect of which, in ~~any such case described above, in~~ the judgment of the Agent~~'s judgment~~, ~~makes~~ are so material and adverse as to make it ~~impractical~~ impracticable to market the Securities or ~~inadvisable~~ to ~~offer~~ enforce contracts, including subscriptions or ~~deliver~~ orders, for the Shares. (d) The Company shall have performed each of its obligations under Section 4(p). (e) The Company shall have performed each of its obligations under Section 4(q). (f) The Company shall have performed each of its obligations under Section 4(r). (g) FINRA shall not have raised any objection to the fairness and reasonableness sale of the ~~terms~~ Securities, and ~~arrangements under this Agreement.~~ (hii) ~~All filings with~~ trading generally on any of the ~~Commission required by Rule 424 under~~ NYSE MKT, the ~~Securities Act to have been filed by~~ New York Stock Exchange or the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished to Agent and the Agent's counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common Shares Nasdaq Stock Market shall not have been ~~suspended on the NASDAQ Capital Market. The Shares~~ suspended, and minimum or maximum prices for trading shall not have been ~~listed and authorized~~ fixed, or maximum ranges for ~~trading on~~ prices for securities have been required, by any of said Exchanges or by order of the ~~NASDAQ Capital Market prior to the first Settlement Date~~Commission or any other governmental authority, and ~~satisfactory evidence of such actions~~ a banking moratorium shall not have been ~~provided to the Agent and its counsel~~declared by either Federal, which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably requestNew York or Massachusetts authorities.

Appears in 2 contracts

Samples: Agency Agreement (CFSB Bancorp, Inc. /MA/), Agency Agreement (CFSB Bancorp, Inc. /MA/)

Conditions of Agent’s Obligations. The obligations of the Agent hereunder are subject to (i) the accuracy of, as of the date hereof, each Bringdown Date, ~~and~~ each Time of Sale (in each case, as if made at such date), and compliance ~~with,~~ with all representations, warranties and agreements of the Company contained herein, (ii) the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) If ~~the~~ filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no stop order suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's ’s satisfaction. (b) The Agent shall not have advised the Company that the Registration Statement, the Base Prospectus, the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which, in the Agent's ’s opinion, is material, or omits to state a fact which, in the Agent's ’s opinion, is material and is required to be stated therein or is necessary to make the statements therein (i) with respect to the Registration Statement, not misleading and (ii) with respect to the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading. (c) Except as set forth or contemplated in the Base Prospectus, the Prospectus and any Permitted Free Writing Prospectus, subsequent to the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital ~~stock~~ stock; and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than ~~as a result of the exercise of~~ due to any ~~currently outstanding options or warrants that are disclosed in the Prospectus~~Additional Issuances), or any material change in the short-term or long-term debt, of the Company, or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described above, in the Agent's ’s judgment, makes it impractical or inadvisable to offer or deliver the Shares. (d) The Company shall have performed each of its obligations under Section ~~4(p~~3(q). (e) ~~The Company~~ On each Bringdown Date, Xxxxxxx Procter LLP, counsel for the Agent, shall not have ~~performed each~~ reasonably determined that the Base Prospectus, the Prospectus, or any Permitted Free Writing Prospectus, as of ~~its obligations under Section 4(q)~~such date, includes an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading. (f) The Company shall have performed each of its obligations under Section ~~4(r~~3(r). (g) ~~FINRA~~ The Company shall ~~not~~ have performed each of its obligations under Section 3(s). (h) The Financial Industry Regulatory Authority, Inc. shall have raised ~~any~~ no objection to the fairness and reasonableness of the underwriting terms and ~~arrangements under this Agreement~~arrangements. (hi) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (ij) The Company shall have furnished to Agent and the Agent's ’s counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common Shares shall not have been suspended on the NASDAQ Capital Market. The Shares shall have been listed and authorized for trading on the NASDAQ Capital Market prior to the first Settlement Date, and satisfactory evidence of such actions shall have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's ’s counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably request.

Appears in 2 contracts

Samples: Equity Distribution Agreement (Hemispherx Biopharma Inc), Equity Distribution Agreement (Epicept Corp)

Conditions of Agent’s Obligations. The Company, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to ~~(i)~~ the accuracy ~~of,~~ of the representations and warranties of the Company and the Bank herein contained as of the date ~~hereof~~hereof and the Closing Time, ~~each Bringdown Date,~~ to the accuracy of the statements of officers and ~~each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements~~ directors of the Company ~~contained herein~~and the Bank made pursuant to the provisions hereof, ~~(ii)~~ to the performance by the Company and the Bank of ~~its~~ their obligations ~~hereunder~~ hereunder, and ~~(iii)~~ to the following ~~additional~~ further conditions: (a) If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no No stop order suspending the effectiveness of the Registration ~~Statement~~ Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any ~~part thereof, any Rule 462(b)~~ prospectus included in a post- effective amendment to the Registration Statement, shall have been issued or ~~any amendment thereof~~proceedings therefor initiated or, ~~nor suspending or preventing~~ to the ~~use~~ knowledge of the ~~Base Prospectus~~Company, threatened by the Commission, the ~~Prospectus~~ ODFI, the FDIC, or the FRB and no order suspending the sale of the Securities in any ~~Permitted Free Writing Prospectus~~ jurisdiction shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's satisfaction. (b) ~~The~~ At the Closing Time, the Agent shall ~~not~~ have ~~advised~~ received: (1) The favorable opinion, dated as of the Closing Time, of Lxxx Xxxxxx, PC, counsel for the Company and the Bank, in form and substance satisfactory to counsel for the Agent, as attached hereto as Exhibit A. (2) The favorable opinion, dated as of the Closing Time, of Nxxxxx Xxxxxxx Xxxxx & Sxxxxxxxxxx LLP, counsel for the Agent, as to such matters as the Agent may reasonably require. (3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Lxxx Xxxxxx, PC and Nxxxxx Xxxxxxx Xxxxx & Sxxxxxxxxxx LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration ~~Statement~~Statement (except for financial statements and schedules and other financial, pro forma, appraisal or statistical data included therein, as to which counsel need make no statement), at the ~~Base Prospectus~~time it became effective, ~~the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains~~ contained an untrue statement of a material fact ~~which, in the Agent's opinion, is material,~~ or ~~omits~~ omitted to state a material fact ~~which, in the Agent's opinion, is material and is~~ required to be stated therein or is necessary to make the statements therein not misleading or that the Prospectus (~~i) with respect~~ except for financial statements and schedules and other financial, pro forma, appraisal or statistical data included therein, as to which counsel need make no statement), at the time the Registration ~~Statement~~Statement became effective, ~~not misleading and (ii) with respect to~~ as of the ~~Base Prospectus,~~ date of the Prospectus or ~~any Permitted Free Writing Prospectus~~at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, Lxxx Xxxxxx, PC and Nxxxxx Xxxxxxx Xxxxx & Sxxxxxxxxxx LLP may rely as to matters of fact on certificates of officers and directors of the Company and the Bank and certificates of public officials. Nxxxxx Xxxxxxx Xxxxx & Sxxxxxxxxxx LLP may also rely on the opinion of Lxxx Xxxxxx, PC. (c) ~~Except as set forth or contemplated~~ At the Closing Time referred to in ~~the Base Prospectus~~Section 2 hereof, the ~~Prospectus~~ Company and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations, the applicable FRB Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company or the Bank by the ODFI, the FDIC, the FRB or any ~~Permitted Free Writing Prospectus~~other regulatory authority other than those which the ODFI, ~~subsequent~~ the FDIC, the FRB or any such other regulatory authority permit to be completed after the consummation of the Conversion. (d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in Registration Statement and the Prospectus), ~~or any material change in the short-term or long-term debt, of the Company, or~~ any Material Adverse ~~Effect or any development that would be reasonably likely to result in a Material Adverse Effect (~~Effect, whether or not arising in the ordinary course of business), and the Agent shall have received a certificate of the Chief Executive Officer of the Company and the Bank and the Treasurer of the Company and the Bank, dated as of Closing Time, to the effect that (i) there has been no such Material Adverse Effect, (ii) there shall have been no material transaction entered into by the Company or the Bank from the latest date as of which the financial condition of the Company or the Bank, as set forth in the Registration Statement, the Prospectus and the General Disclosure Package other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither the Company nor the Bank shall have received from the FRB, the ODFI or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which would materially and adversely affect the business, financial condition, results of operations or prospects of the Company or the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company and the Bank have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company or the Bank, threatened by the Commission, (vii) no order suspending the ODFI’s or the FRB’s approval of the Holding Company Application or the ODFI’s or the FDIC’s approval of the Conversion Application or the transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company or the Bank, threatened by the FRB, the ODFI, or the FDIC and no person has sought to obtain regulatory or judicial review of the action of the ODFI or the FDIC in approving the Plan in accordance with the Conversion Regulations nor has any person sought to obtain regulatory or judicial review of the action of the ODFI or the FDIC in approving the Conversion Application or the ODFI or the FRB in approving the Holding Company Application, and (viii) no order suspending the Subscription and Community Offering or the Syndicated Offering or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the ODFI or the FDIC. (e) At the Closing Time, the Agent shall have received a certificate of the Chief Executive Officer of the Company and the Bank and the Treasurer of the Company and the Bank, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement, the Prospectus and the General Disclosure Package; (ii) based on each of their knowledge, the Registration Statement, the Prospectus and the General Disclosure Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement, the Prospectus and the General Disclosure Package fairly present the financial condition and results of operations of the Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus. (f) As of the date hereof, the Agent shall have received from Sxxxxxxxx a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the Company and the Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the Conversion Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Sxxxxxxx-Xxxxx Act; (ii) it is their opinion that the financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and Sxxxxxxxx set forth in detail in such letter, nothing has come to their attention which causes them to believe that, except as set forth in such letter, (A) the unaudited amounts of net interest income and net income set forth under “Selected Financial and Other Data of Mxxxxx Savings Bank” or under “Recent Developments” in the Prospectus and the General Disclosure Package do not agree with the amounts set forth in unaudited financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, the Prospectus and the General Disclosure Package, (B) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the long- term or short-term debt of the Bank or any decrease in total assets, the allowance for loan losses, total deposits or equity of the Bank, in each case as compared with the amounts shown in the September 30, 2022 audited balance sheets or, (C) during the period from September 30, 2022 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Bank or increases in interest expense or the provision for loan losses, except in all instances for increases or decreases which the Registration Statement, the Prospectus and the General Disclosure Package disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information that are included in the Registration Statement, Prospectus and the General Disclosure Package and that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company and the Bank identified in such letter. (g) At the Closing Time, the Agent shall have received from Sxxxxxxxx a letter dated as of the Closing Time, to the effect that it reaffirms the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time. (h) At the Closing Time, the Securities shall have been approved for quotation on the OTCQB Market. (i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal. (j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent. (k) At any time prior to the Closing Time, (i) there shall not have occurred any material ~~loss by strike, fire, flood, earthquake, accident~~ adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other ~~calamity, whether~~ calamity or ~~not covered by insurance, incurred by the Company,~~ crisis the effect of which, in ~~any such case described above, in~~ the judgment of the Agent~~'s judgment~~, ~~makes~~ are so material and adverse as to make it ~~impractical~~ impracticable to market the Securities or ~~inadvisable~~ to ~~offer~~ enforce contracts, including subscriptions or ~~deliver~~ orders, for the Shares. (d) The Company shall have performed each of its obligations under Section 4(p). (e) The Company shall have performed each of its obligations under Section 4(q). (f) The Company shall have performed each of its obligations under Section 4(r). (g) FINRA shall not have raised any objection to the fairness and reasonableness sale of the ~~terms~~ Securities, and ~~arrangements under this Agreement.~~ (hii) ~~All filings with~~ trading generally on any of the ~~Commission required by Rule 424 under~~ NYSE MKT, the ~~Securities Act to have been filed by~~ New York Stock Exchange or the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished to Agent and the Agent's counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common Shares Nasdaq shall not have been ~~suspended on the NASDAQ Capital Market. The Shares~~ suspended, and minimum or maximum prices for trading shall not have been ~~listed and authorized~~ fixed, or maximum ranges for ~~trading on~~ prices for securities have been required, by any of said exchanges or by order of the ~~NASDAQ Capital Market prior to the first Settlement Date~~Commission or any other governmental authority, and ~~satisfactory evidence of such actions~~ a banking moratorium shall not have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably requestdeclared by either Federal or Ohio authorities.

Appears in 2 contracts

Samples: Agency Agreement (Mercer Bancorp, Inc.), Agency Agreement (Mercer Bancorp, Inc.)

Conditions of Agent’s Obligations. The obligations of the Agent hereunder are subject to (i) the accuracy of, as of the date hereof, each Bringdown Date, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein, (ii) the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no stop order suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Base Prospectus, Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, Prospectus Supplement, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's ’s satisfaction. (b) The Agent shall not have advised the Company that the Registration Statement, the Base Prospectus, Prospectus Supplement, the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which, in the Agent's ’s opinion, is material, or omits to state a fact which, in the Agent's ’s opinion, is material and is required to be stated therein or is necessary to make the statements therein (i) with respect to the Registration Statement, not misleading and (ii) with respect to the Base Prospectus, Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading. (c) Except as set forth or contemplated in the Base Prospectus, Prospectus Supplement, the Prospectus and any Permitted Free Writing Prospectus, subsequent to the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding ~~options~~ restricted stock units or warrants that are disclosed in the Prospectus), or any material change in the short-term or long-term debt, of the Company, or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake, epidemic, pandemic, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described above, in the Agent's ’s judgment, makes it impractical or inadvisable to offer or deliver the Shares. (d) The Company shall have performed each of its obligations under Section ~~4(p~~3(p). (e) The Company shall have performed each of its obligations under Section ~~4(q~~3(q). (f) The Company shall have performed each of its obligations under ~~Section 4(r~~Sections 3(r), (s), (t) and (u). (g) FINRA shall not have raised any objection to the fairness and reasonableness of the terms and arrangements under this Agreement. (h) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished to Agent and the Agent's ’s counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common ~~Shares~~ Stock shall not have been suspended on ~~the NASDAQ Capital Market~~Nasdaq. The Shares shall have been listed and authorized for trading on ~~the NASDAQ Capital Market~~ Nasdaq prior to the first Settlement Date, and satisfactory evidence of such actions shall have been provided to the Agent and its counsel, which may include oral confirmation from a representative of ~~the NASDAQ Capital Market~~The Nasdaq Stock Market LLC. (k) The Company shall have in place a directors and officers insurance policy, in form and substance reasonably satisfactory to Agent. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's ’s counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably request.

Appears in 2 contracts

Samples: Equity Distribution Agreement (Wisa Technologies, Inc.), Equity Distribution Agreement (Summit Wireless Technologies, Inc.)

Appears in 2 contracts

Samples: Agency Agreement (HarborOne Bancorp, Inc.), Agency Agreement (HarborOne NorthEast Bancorp, Inc.)

Conditions of Agent’s Obligations. The obligations of the Agent hereunder are subject to (i) the accuracy of, as of the date hereof, each Bringdown Date, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein, (ii) the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) If ~~the~~ filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no stop order suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's ’s satisfaction. (b) The Agent shall not have advised the Company that the Registration Statement, the Base Prospectus, the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which, in the Agent's ’s opinion, is material, or omits to state a fact which, in the Agent's ’s opinion, is material and is required to be stated therein or is necessary to make the statements therein (i) with respect to the Registration Statement, not misleading and (ii) with respect to the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading. (c) Except as set forth or contemplated in ~~the Base Prospectus,~~ the Prospectus and any Permitted Free Writing Prospectus, subsequent to the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in the Registration Statement or the Prospectus or the issuance of securities pursuant to the Company’s equity incentive plans or employee stock purchase plans described in the Registration Statement or the Prospectus), or any material change in the short-term or long-term debt, of the Company, or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described above, in the Agent's ’s judgment, makes it impractical or inadvisable to offer or deliver the Shares. (d) The Company shall have performed each of its obligations under Section ~~4(p~~3(q). (e) The Company shall have performed each of its obligations under Section ~~4(q~~3(r). (f) The Company shall have performed each of its obligations under Section ~~4(r~~3(s). (g) FINRA shall ~~not~~ have raised ~~any~~ no objection to the fairness and reasonableness of the underwriting terms and ~~arrangements under this Agreement~~arrangements. (h) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished to Agent and the Agent's ’s counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common ~~Shares~~ Stock shall not have been suspended on the NASDAQ Capital Market. The Shares shall have been listed and authorized for trading on the NASDAQ Capital Market prior to the first Settlement Date, and satisfactory evidence of such actions shall have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's ’s counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably request.

Appears in 2 contracts

Samples: Equity Distribution Agreement (TRxADE HEALTH, INC), Equity Distribution Agreement (Viking Therapeutics, Inc.)

Conditions of Agent’s Obligations. The First Federal Parties and the Agent agree that the issuance and the sale of Offer Shares and all obligations of the Agent hereunder are subject to ~~(i)~~ the accuracy ~~of,~~ of the representations and warranties of the First Federal Parties herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of any of the First Federal Parties made pursuant to the provisions hereof, ~~each Bringdown Date, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein, (ii)~~ to the performance by the ~~Company~~ First Federal Parties of ~~its~~ their obligations ~~hereunder~~ hereunder, and ~~(iii)~~ to the following ~~additional~~ further conditions: (a) If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no No stop order suspending the effectiveness of the Registration ~~Statement~~ Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offering or authorization for final use of the Prospectus, including any ~~part thereof, any Rule 462(b)~~ prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or ~~any amendment thereof~~proceedings therefor initiated or, ~~nor suspending or preventing~~ to the ~~use~~ knowledge of the ~~Base Prospectus~~Company, threatened by the ~~Prospectus~~ Commission or the Federal Reserve Board and no order suspending the sale of the Offer Shares in any ~~Permitted Free Writing Prospectus~~ jurisdiction shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's satisfaction. (b) ~~The~~ At the Closing Time, the Agent shall ~~not~~ have ~~advised~~ received: (1) The favorable opinion, dated as of the ~~Company~~ Closing Time, of Xxxx Xxxxxx, PC, counsel for the First Federal Parties, in form and substance satisfactory to counsel for the Agent, as attached hereto as Exhibit A. (2) The favorable opinion, dated as of the Closing Time, of Xxxxxxxx Xxxxxxx Van Deuren s.c., counsel for the Agent, as to such matters as the Agent may reasonably require. (3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Xxxx Xxxxxx, PC and Xxxxxxxx Xxxxxxx Van Deuren s.c. shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration ~~Statement~~Statement (except for financial statements and schedules, notes to financial statements, stock valuation information and other financial or statistical data included therein or omitted therefrom, as to which counsel need make no statement), at the ~~Base Prospectus~~time it became effective, ~~the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains~~ contained an untrue statement of a material fact ~~which, in the Agent's opinion, is material,~~ or ~~omits~~ omitted to state a material fact ~~which, in the Agent's opinion, is material and is~~ required to be stated therein or is necessary to make the statements therein not misleading or that the Prospectus (~~i) with respect~~ except for financial statements and schedules, notes to financial statements, stock valuation information and other financial or statistical data included therein or omitted therefrom, as to which counsel need make no statement), at the time the Registration ~~Statement~~Statement became effective, ~~not misleading and (ii) with respect to~~ as of the ~~Base Prospectus,~~ date of the Prospectus or ~~any Permitted Free Writing Prospectus~~at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, Xxxx Xxxxxx, PC and Xxxxxxxx Xxxxxxx Van Deuren s.c. may rely as to matters of fact on certificates of officers and directors of the First Federal Parties and certificates of public officials. Xxxxxxxx Xxxxxxx Van Deuren s.c. may also rely on the opinion of Xxxx Xxxxxx, PC. (c) ~~Except as set forth or contemplated in~~ At the ~~Base Prospectus~~Closing Time, the ~~Prospectus~~ First Federal Parties shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon any ~~Permitted Free Writing Prospectus~~of the First Federal Parties by the Federal Reserve Board, ~~subsequent~~ the OCC or any other regulatory authority other than those which the Federal Reserve Board, the OCC or any such other regulatory authority permit to be completed after the Conversion. (d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in Registration Statement and the Prospectus), ~~or any material change in the short-term or long-term debt, of the Company, or~~ any Material Adverse ~~Effect or any development that would be reasonably likely to result in a Material Adverse Effect (~~Effect, whether or not arising in the ordinary course of business), and the Agent shall have received a certificate of the Chief Executive Officer of the First Federal Parties and the Chief Financial Officer of the First Federal Parties, dated as of Closing Time, to the effect that (i) there has been no such Material Adverse Effect, (ii) there shall have been no material transaction entered into by any of the First Federal Parties from the latest date as of which the financial condition of any of the First Federal Parties, as set forth in the Registration Statement, the Prospectus and the General Disclosure Package other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) none of the First Federal Parties shall have received from the Federal Reserve Board, the OCC or the FDIC any order or direction (oral or written) to make any material ~~loss~~ change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the First Federal Parties, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the First Federal Parties has complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the First Federal Parties, threatened by ~~strike~~the Commission, ~~fire~~(vii) no order suspending the Federal Reserve Board’s approval of the Holding Company Application or the Conversion Application or the OCC’s approval of the OCC Application or the transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, ~~flood~~to the knowledge of the First Federal Parties, ~~earthquake~~threatened by the Federal Reserve Board or the OCC and no person has sought to obtain regulatory or judicial review of the action of the Federal Reserve Board in approving the Plan in accordance with the Conversion Regulations nor has any person sought to obtain regulatory or judicial review of the action of the Federal Reserve Board in approving the Conversion Application or the Holding Company Application, ~~accident~~ and (viii) no order suspending the Offering or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the Federal Reserve Board. (e) At the Closing Time, the Agent shall have received a certificate of the Chief Executive Officer of the First Federal Parties and the Chief Financial Officer of the First Federal Parties, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement, the Prospectus and the General Disclosure Package; (ii) based on each of their knowledge, the Registration Statement, the Prospectus and the General Disclosure Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; (iii) based on each of their knowledge, the financial statements and other ~~calamity~~financial information included in the Registration Statement, the Prospectus and the General Disclosure Package fairly present the consolidated financial condition and consolidated results of operations of the Mid-Tier Holding Company as of and for the dates and periods covered by the Registration Statement and the Prospectus; (iv) they are responsible for establishing and maintaining disclosure controls and procedures; (v) they have designed such disclosure controls and procedures to ensure that material information relating to the First Federal Parties is made known to them; (vi) they have evaluated the effectiveness of their disclosure controls and procedures; and (vii) they have disclosed to Wipfli and the audit committee (A) all significant deficiencies in the design or operation of disclosure controls and procedures which are reasonably likely to adversely affect the First Federal Parties’ ability to record, process, summarize, and report financial data, and have identified for the Company’s and the Mid-Tier Holding Company’s independent registered public accounting firm any material weaknesses in disclosure controls and procedures and (B) any fraud, whether or not ~~covered by insurance~~material, ~~incurred~~ that involves management or other employees who have a significant role in the First Federal Parties’ disclosure controls and procedures. (f) As of the date hereof, the Agent shall have received from Wipfli a letter dated such date, in form and substance satisfactory to the Agent, containing statements and information of the type ordinarily included in auditors’ "comfort letters" to underwriters and marketing agents with respect to the consolidated financial statements and financial information contained in the Registration Statement and the Prospectus; provided that the letter shall use a "cut-off" date no more than three (3) business days prior to the date hereof. (g) At the Closing Time, the Agent shall have received from Wipfli a letter dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than three (3) business days prior to the Closing Time. (h) The "lock-up" agreements, each substantially in the form of Exhibit B hereto, between the Agent and the persons set forth on Exhibit C hereto, relating to sales and certain other dispositions of shares of Common Stock, Mid-Tier Holding Company Common Stock or certain other securities, shall be delivered to the Agent on or before the date hereof and shall be in full force and effect on the Closing Time. (i) At the Closing Time, the Shares shall have been approved for listing on the Nasdaq Capital Market. (j) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal. (k) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Offer Shares and the issuance of the Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the ~~Company~~Company in connection with the issuance and sale of the Offer Shares and the issuance of the Exchange Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent. (l) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in ~~any such case described above, in~~ the judgment of the Agent~~'s judgment~~, ~~makes~~ are so material and adverse as to make it ~~impractical~~ impracticable to market the Offer Shares or ~~inadvisable~~ to ~~offer~~ enforce contracts, including subscriptions or ~~deliver~~ orders, for the Shares. (d) The Company shall have performed each of its obligations under Section 4(p). (e) The Company shall have performed each of its obligations under Section 4(q). (f) The Company shall have performed each of its obligations under Section 4(r). (g) FINRA shall not have raised any objection to the fairness and reasonableness sale of the ~~terms~~ Offer Shares, and ~~arrangements under this Agreement.~~ (hii) ~~All filings with~~ trading generally on any of the ~~Commission required by Rule 424 under~~ NYSE MKT, the ~~Securities Act to have been filed by~~ New York Stock Exchange or the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished to Agent and the Agent's counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common Shares Nasdaq Stock Market shall not have been ~~suspended on the NASDAQ Capital Market. The Shares~~ suspended, and minimum or maximum prices for trading shall not have been ~~listed and authorized~~ fixed, or maximum ranges for ~~trading on~~ prices for securities have been required, by any of said Exchanges or by order of the ~~NASDAQ Capital Market prior to the first Settlement Date~~Commission or any other governmental authority, and ~~satisfactory evidence of such actions~~ a banking moratorium shall not have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably requestdeclared by either Federal or Wisconsin authorities.

Appears in 2 contracts

Samples: Agency Agreement (FFBW, Inc.), Agency Agreement (FFBW, Inc. /MD/)

Conditions of Agent’s Obligations. The obligations of the ~~Agent~~ Agents hereunder shall be subject, in each of their sole discretion, to the condition that all representations and warranties and other statements of the Company herein or in certificates of any officer of the Company delivered pursuant to the provisions hereof are ~~subject to (i) the accuracy of,~~ true and correct as of the time of the execution of this Agreement, the date ~~hereof,~~ of any executed Terms Agreement and as of each ~~Bringdown~~ Representation Date, Applicable Time and ~~each Time of Sale (in each case~~Settlement Date, ~~as if made at such date), and compliance with, all representations, warranties and agreements of~~ to the condition that the Company ~~contained herein, (ii) the performance by the Company~~ shall have performed all of its obligations hereunder theretofore to be performed, and ~~(iii)~~ the following additional conditions: (a) ~~If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company~~ The Prospectus Supplement shall have been filed ~~the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus~~ with the Commission pursuant to Rule 424(b) under the 1933 Act on or prior to the date hereof and in accordance with Section 3(a) hereof, any other material required to be filed by the ~~manner and~~ Company pursuant to Rule 433(d) under the 1933 Act shall have been filed with the Commission within the applicable time ~~period so required (without reliance on~~ periods prescribed for such filings by Rule ~~424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective~~433; no stop order suspending the effectiveness of the Registration Statement or any part ~~thereof, any Rule 462(b)~~ thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the form of the Registration ~~Statement,~~ Statement or any post-effective amendment ~~thereof, nor~~ thereto pursuant to Rule 401(g)(2) under the 1933 Act shall have been received; no stop order suspending or preventing the use of the ~~Base Prospectus, the~~ Prospectus or any ~~Permitted~~ Issuer Free Writing Prospectus shall have been ~~issued; no proceedings for the issuance of such an order shall have been~~ initiated or ~~threatened~~threatened by the Commission; and ~~any request~~ all requests for additional information on the part of the Commission ~~for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise)~~ shall have been complied with to the ~~Agent's satisfaction~~reasonable satisfaction of the Representatives. (b) ~~The Agent~~ On every date specified in Section 3(k) hereof (including, without limitation, on every Request Date), Sidley Austin LLP, counsel for the Agents, shall ~~not~~ have ~~advised~~ furnished to the Agents such written opinion or opinions, dated as of such date, with respect to such matters as the Agents may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters. (c) On every date specified in Section 3(k) hereof (including, without limitation, on every Request Date), Xxxxxxxx & Xxxxxxxx LLP, counsel for the Company, shall have furnished to the Agents written opinion or opinions, dated as of such date, substantially in the form set forth in Exhibit A attached hereto and in form and substance satisfactory to the Agents. (d) On every date specified in Section 3(k) hereof (including, without limitation, on every Request Date), Xxxxx Xxxx LLP, counsel for the Company, shall have furnished to the Agents written opinion or opinions, dated as of such date, substantially in the form set forth in Exhibit B attached hereto and in form and substance satisfactory to the Agents. (e) At the dates specified in Section 3(l) hereof (including, without limitation, on every Request Date), the independent accountants of the Company ~~that~~ who have certified the financial statements of the Company and its subsidiaries included or incorporated by reference in the Registration Statement, the ~~Base Prospectus~~General Disclosure Package and the Prospectus shall have furnished to the Agents a letter dated as of the date of delivery thereof and addressed to the Agents in form and substance reasonably satisfactory to the Agents and their counsel, containing statements and information of the ~~Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which,~~ type ordinarily included in ~~the Agent's opinion, is material, or omits~~ accountants’ “comfort letters” to ~~state a fact which, in the Agent's opinion, is material and is required to be stated therein or is necessary to make the statements therein (i)~~ underwriters with respect to the financial statements of the Company and its subsidiaries included or incorporated by reference in the Registration Statement, ~~not misleading~~ the General Disclosure Package and the Prospectus. (f) (i) Upon commencement of the offering of Shares under this Agreement and on such other dates as reasonably requested by Agent, the Company will furnish or cause to be furnished promptly to the Agents a certificate of an officer in a form satisfactory to the Agents stating the minimum gross sales price per share for the sale of such Shares pursuant to this Agreement and the maximum number of Shares that may be issued and sold pursuant to this Agreement or, alternatively, maximum gross proceeds from such sales, as authorized from time to time by the Company’s board of directors or a duly authorized committee thereof, and the number of Shares that have been approved for listing on the NYSE or, in connection with any amendment, revision or modification of such minimum price or maximum Share number or amount, a new certificate with respect thereto and (ii) ~~with respect~~ on each date specified in Section 3(j) (including, without limitation, on every Request Date), the Agents shall have received a certificate of executive officers of the Company, one of whom shall be the Chief Financial Officer, Chief Accounting Officer, Treasurer, or Executive Vice President in the area of capital markets and investments, dated as of the date thereof, to the ~~Base Prospectus,~~ effect that (A) there has been no Material Adverse Effect since the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading. (c) Except as set forth or contemplated in the Base Prospectus, the Prospectus and any Permitted Free Writing Prospectus, subsequent to the respective dates date as of which information is given ~~therein~~in the Prospectus as then amended or supplemented, (B) the representations and warranties in Section 1 hereof are true and correct as of such date and (C) the Company ~~shall not have incurred any material liabilities or obligations, direct or contingent, or~~ has complied with all of the agreements entered into ~~any material transactions,~~ in connection with the transaction contemplated herein and satisfied all conditions on its part to be performed or ~~declared~~ satisfied. (g) Since the date of the latest audited financial statements then included or ~~paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change~~ incorporated by reference in the ~~capital stock~~Prospectus and the General Disclosure Package, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in the Prospectus), or any material change in the short-term or long-term debt, of the Company, or any no Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described above, in the Agent's judgment, makes it impractical or inadvisable to offer or deliver the Sharesshall have occurred. (dh) The Company shall have ~~performed each~~ complied with the provisions of ~~its obligations under~~ Section ~~4(p)~~3(c) hereof with respect to the timely furnishing of prospectuses. (ei) ~~The~~ On such dates as reasonably requested by the Agents, the Company shall have ~~performed each of its obligations under Section 4(q)~~conducted due diligence sessions, in form and substance satisfactory to the Agents. (f) The Company shall have performed each of its obligations under Section 4(r). (g) FINRA shall not have raised any objection to the fairness and reasonableness of the terms and arrangements under this Agreement. (hj) All filings with the Commission required by Rule 424 under the ~~Securities~~ 1933 Act to have been filed by ~~the~~ each Applicable Time or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule ~~424~~424 (without reliance on Rule 424(b)(8)). (ik) The Company shall have furnished to Agent and the Agent's counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common Shares shall not have been suspended on the NASDAQ Capital Market. The Shares shall have ~~been listed and authorized~~ received approval for ~~trading~~ listing on the ~~NASDAQ Capital Market~~ NYSE prior to the first Settlement Date~~, and satisfactory evidence of such actions~~ . (l) Counsel for the Agents shall have been ~~provided~~ furnished with such documents and opinions as they may require in order to evidence the ~~Agent and its counsel, which may include oral confirmation from a representative~~ accuracy of any of the ~~NASDAQ Capital Market. All such opinions~~representations or warranties, ~~certificates~~or the fulfillment of any of the conditions, ~~letters~~ contained herein or in any applicable Terms Agreement; and ~~other documents will be~~ all proceedings taken by the Company in ~~compliance~~ connection with the ~~provisions hereof only if they are~~ issuance and sale of the Shares as contemplated herein or in any applicable Terms Agreement and in connection with the other transactions contemplated by this Agreement or any such Terms Agreement shall be reasonably satisfactory in form and substance to ~~Agent~~ the Agents and counsel for the ~~Agent's counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably request~~Agents.

Appears in 2 contracts

Samples: Atm Equity Offering Sales Agreement (UDR, Inc.), Atm Equity Offering Sales Agreement (UDR, Inc.)

Conditions of Agent’s Obligations. The Agents accept their appointment hereunder and their obligations set forth herein and in the Notes and the Guarantee upon the terms and conditions hereof and thereof, including the following, to all of which the Issuer and the Guarantor agree and to all of which the rights of the ~~Agent hereunder are subject~~ registered holders from time to ~~(i) the accuracy of, as~~ time of the date hereof, each Bringdown Date, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein, (ii) the performance by the Company of its obligations hereunder and (iii) the following additional conditionsNotes shall be subject: (a) If Each Agent shall be entitled to compensation to be agreed upon in writing in a separate letter with the ~~filing~~ Issuer and the Guarantor for all services rendered by it, and the Issuer and the Guarantor agree to promptly pay such compensation to the Fiscal Agent, and neither the Issuer nor the Guarantor need concern itself with the apportionment among the Agents of such payment. The Issuer and the Guarantor shall on demand (subject to adequate documentation) reimburse each Agent for its reasonable out-of-pocket expenses (including reasonable fees and expenses of counsel and agents) incurred by it in connection with the services rendered by it hereunder. The Issuer and the Guarantor hereby agrees to indemnify each Agent, its officers, directors, employees and agents for, and to hold it harmless against, any loss, liability, action, suit, judgment, demand, damage, cost or expense, including advertising, telex and postage expenses, properly incurred without gross negligence or willful misconduct on its part arising out of or that are in any way related to this Agreement or any Note or Guarantee in connection with its acting as Agent of the ~~Prospectus~~Issuer and the Guarantor hereunder. The Agents shall be protected and shall incur no liability for or in respect of any action taken or omitted to be taken or thing suffered by them in reliance upon any Note, the Guarantee, notice, direction, consent, certificate, affidavit, statement, telex, facsimile or ~~any amendment~~ other paper or ~~supplement thereto~~document reasonably believed by them, in good faith and without gross negligence, to be genuine and to have been presented, signed or ~~any Permitted Free Writing Prospectus, is required under~~ sent by an Authorized Representative of the ~~Securities Act~~ Issuer or the ~~Rules and Regulations~~Guarantor. The obligations of the Issuer or the Guarantor under this Section 8(a) shall survive payment of the Notes or Guarantee, the ~~Company shall have filed the Prospectus (~~resignation or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no stop order suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus shall have been issued; no proceedings for the issuance removal of such ~~an order shall have been initiated~~ Agent or ~~threatened;~~ the termination of this Agreement and any ~~request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus,~~ termination under any ~~Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's satisfaction~~bankruptcy law. (b) ~~The Agent shall not have advised~~ In acting under this Agreement and in connection with the ~~Company that~~ Notes and the ~~Registration Statement~~Guarantee, the ~~Base Prospectus~~Agents are acting solely as agents of the Issuer and the Guarantor, as the ~~Prospectus~~case may be, and do not assume any obligation towards or relationship of agency or trust for or with any ~~amendment~~ of the registered holders or ~~supplement thereto~~beneficial holders of the Notes, except that all funds held by any Paying Agent or ~~any Permitted Free Writing Prospectus, contains an untrue statement~~ the Registrar for the payment of ~~fact which,~~ principal of or interest on the Notes shall be held in trust by it for such registered holder or beneficial holder and applied as set forth herein and in the ~~Agent's opinion~~Notes, ~~is material~~but need not be segregated from other funds held by it, except as required by law; provided that moneys paid by the Issuer or ~~omits~~ the Guarantor to ~~state a fact which~~any Paying Agent or the Registrar for the payment of principal of or interest on any of the Notes and remaining unclaimed at the end of two years after the date on which such principal or interest shall have become due and payable (whether at maturity, upon call for redemption or otherwise) shall, together with interest made available for payment thereof, be repaid to the Issuer or the Guarantor as provided and in the ~~Agent's opinion~~manner set forth in the Conditions, ~~is material~~ whereupon the aforesaid trust shall terminate and ~~is required to be stated therein or is necessary to make the statements therein (i)~~ all liability of such Agent with respect to the Registration Statement, not misleading and (ii) with respect to the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleadingsuch moneys shall cease. (c) ~~Except as set forth or contemplated in the Base Prospectus, the Prospectus~~ Any Agent may consult with counsel satisfactory to it and any ~~Permitted Free Writing Prospectus, subsequent to the respective dates as~~ advice or written opinion of ~~which information is given therein, the Company~~ such counsel shall ~~not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution~~ be full and complete authorization and protection in respect of any ~~kind~~ action taken, suffered or omitted to be taken by it hereunder in good faith and without negligence and in accordance with ~~respect to its capital stock and there shall not have been any change in the capital stock,~~ such advice or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in the Prospectus), or any material change in the short-term or long-term debt, of the Company, or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described above, in the Agent's judgment, makes it impractical or inadvisable to offer or deliver the Sharesopinion. (d) The ~~Company shall~~ Agents, in their individual capacity or any other capacity, may acquire any interest in any Notes or other obligations of the Issuer or the Guarantor with the same rights that they would have ~~performed each~~ if they were not such Agents, and may engage or be interested in any financial or other transaction with the Issuer or the Guarantor, and may act on, or as depositary, trustee or agent for, any committee or body of ~~its~~ holders of Notes or other obligations ~~under Section 4(p)~~of the Issuer or the Guarantor, as freely as if they were not such Agents. (e) ~~The Company~~ Subject to any agreement among the Issuer, the Guarantor and the Agents to the contrary, the Agents shall ~~have performed each~~ not be under any liability for interest on any moneys received by them pursuant to any of ~~its obligations under Section 4(q)~~the provisions of this Agreement, the Notes or the Guarantee. (f) The ~~Company~~ recitals contained in this Agreement, in the Notes (except the Registrar’s or the Fiscal Agent’s, as the case may be, certificates of authentication) and in the Guarantee shall ~~have performed~~ be taken as the statements of the Issuer and the Guarantor, and the Agents do not assume any responsibility for the correctness of the same. The Agents do not make any representation (other than with respect to themselves) as to the validity or sufficiency of this Agreement, the Notes or the Guarantee, except for each Agent’s due authorization, execution and delivery of ~~its obligations under Section 4(r)~~this Agreement. The Agents shall not be accountable for the use or application by the Issuer or the Guarantor of any of the Notes and the proceeds thereof and the Guarantee. (g) ~~FINRA~~ The Agents, their officers, employees and agents shall ~~not have raised any objection~~ be obligated to ~~the fairness~~ perform such duties and ~~reasonableness of the terms and arrangements under~~ only such duties as are specifically set forth in this Agreement, in the Notes and in the Guarantee, and no implied duties or obligations shall be read into this Agreement, the Notes or the Guarantee against them. (h) ~~All filings with~~ In no event shall the ~~Commission required by Rule 424 under~~ Agents be responsible or liable for special, indirect, consequential or punitive loss or damage of any kind whatsoever (including, but not limited to, loss of profit), irrespective of whether the ~~Securities Act to~~ Agents have been ~~filed by~~ advised of the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished to Agent and the Agent's counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common Shares shall not have been suspended on the NASDAQ Capital Market. The Shares shall have been listed and authorized for trading on the NASDAQ Capital Market prior to the first Settlement Date, and satisfactory evidence likelihood of such ~~actions shall have been provided to the Agent~~ loss or damage and ~~its counsel, which may include oral confirmation from a representative~~ regardless of the ~~NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in~~ form ~~and substance to Agent and the Agent's counsel. The Company will furnish Agent with such conformed copies~~ of ~~such opinions, certificates, letters and other documents as Agent shall reasonably request~~action.

Appears in 2 contracts

Samples: Fiscal and Paying Agency Agreement, Fiscal and Paying Agency Agreement (Brandbev S.a r.l.)

Conditions of Agent’s Obligations. The obligations of the Agent ~~hereunder are subject to (i) the accuracy of~~hereunder, as of to the ~~date hereof~~Securities to be delivered at each Closing Time, ~~each Bringdown Date~~shall be subject, in its discretion, to the condition that all representations and ~~each Time of Sale (in each case, as if made at such date), and compliance with, all representations,~~ warranties and ~~agreements~~ other statements of the Company ~~contained herein~~herein are, ~~(ii)~~ at and as of such Closing Time, true and correct, the ~~performance by~~ condition that the Company shall have performed all of its obligations hereunder theretofore to be performed, and ~~(iii)~~ the following additional conditions: (a) If The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing of by the ~~Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required~~ rules and regulations under the Securities Act and in accordance with Section 3(a) hereof (or a post-effective amendment shall have been filed and declared effective in accordance with the ~~Rules and Regulations~~requirements of Rule 430A); if the Company has elected to rely upon Rule 462(b), the ~~Company shall have filed the Prospectus (or such amendment or supplement~~Rule 462(b) ~~or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the~~ Registration Statement shall ~~remain effective~~have become effective by 10:00 p.m., Eastern Time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part ~~thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus~~ thereof shall have been ~~issued;~~ issued and no ~~proceedings~~ proceeding for ~~the issuance of such an order~~ that purpose shall have been initiated or ~~threatened~~threatened by the Commission; and ~~any request~~ all requests for additional information on the part of the Commission ~~for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise)~~ shall have been complied with to the Agent's ’s reasonable satisfaction.; and FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements (b) ~~The~~ Xxxxxx, Halter & Xxxxxxxx LLP, counsel for the Agent, shall have furnished to the Agent ~~shall not have advised~~ such written opinion or opinions, dated such Closing Time, with respect to the ~~Company that~~ incorporation of the Company, the validity of the Securities, the Registration Statement, the ~~Base Prospectus~~Prospectus as amended or supplemented and other related matters as the Agent may reasonably request, ~~the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which, in the Agent's opinion, is material, or omits~~ and such counsel shall have received such papers and information as they may reasonably request to ~~state a fact which, in the Agent's opinion, is material and is required~~ enable them to be stated therein or is necessary to make the statements therein (i) with respect to the Registration Statement, not misleading and (ii) with respect to the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading.pass upon such matters; (c) ~~Except as~~ Vorys, Xxxxx, Xxxxxxx and Xxxxx LLP, counsel for the Company, shall have furnished to the Agent their written opinion, dated such Closing Time, in form and substance satisfactory to the Agent, to the effect set forth ~~or contemplated~~ in Annex II hereto and to such further effect as counsel to the ~~Base Prospectus~~Agent may reasonably request; (d) Xxxxxxx & Associates, LTD., counsel for the Company, shall have furnished to the Agent their written opinion, dated such Closing Time, in form and substance satisfactory to the Agent, to the effect set forth in Annex III hereto and to such further effect as counsel to the Agent may reasonably request; (e) On the date of the Prospectus ~~and~~ at a time prior to the execution of this Agreement, at 9:30 a.m., Eastern Time, on the effective date of any ~~Permitted Free Writing Prospectus,~~ post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Closing Time, Xxxxx Xxxxxxx LLP shall have furnished to the Agent a letter or letters, dated the respective dates as of ~~which information is given therein~~delivery thereof, in form and substance satisfactory to the Agent, to the effect set forth in Annex I hereto; (f) Neither the Company nor any of its subsidiaries shall ~~not~~ have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in sustained since the ~~capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result~~ date of the ~~exercise of any currently outstanding options or warrants that are disclosed~~ latest audited financial statements included in ~~the Prospectus), or any material change in the short-term or long-term debt,~~ each of the ~~Company,~~ General Disclosure Package and the Prospectus any loss or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, interference with its business from fire, ~~flood~~explosion, ~~earthquake, accident~~ flood or other calamity, whether or not covered by insurance, ~~incurred by~~ or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the ~~Company~~Prospectus, and (ii) since the respective dates as of which information is given in each of the General Disclosure Package and the Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in each of the General Disclosure Package and the Prospectus, the effect of which, in any such case described ~~above~~in Clause (i) or (ii), is in the ~~Agent's judgment, makes~~ judgment of the Agent so material and adverse as to make it ~~impractical~~ impracticable or inadvisable to ~~offer~~ proceed with the public offering or ~~deliver~~ the ~~Shares. (d) The Company shall have performed~~ delivery of the Securities being delivered at such Closing Time on the terms and in the manner contemplated in each of ~~its obligations under Section 4(p). (e) The Company shall have performed each of its obligations under Section 4(q). (f) The Company shall have performed each of its obligations under Section 4(r).~~the General Disclosure Package and the Prospectus; (g) ~~FINRA~~ On or after the date hereof (i) no downgrading shall ~~not~~ have ~~raised~~ occurred in the rating accorded the Company’s debt securities by any ~~objection to~~ “nationally recognized statistical rating organization”, as that term is defined by the ~~fairness~~ Commission for purposes of Rule 436(g)(2) under the Securities Act, and ~~reasonableness~~ (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the ~~terms and arrangements under this Agreement.~~Company’s debt securities; (h) ~~All filings~~ On or after the date hereof there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange or on the Nasdaq Capital Market; (ii) a suspension or material limitation in trading in the Company’s securities on the OTCBB; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Ohio state authorities; or (iv) the outbreak or escalation of hostilities or the declaration of a national emergency or war or a change in general economic, political or financial conditions, including without limitation as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the United States shall be such), or any other national or international calamity or crisis, if the effect of any such event specified in this Clause (iv) in the judgment of the Agent makes it impracticable or inadvisable to proceed with the ~~Commission required by Rule 424 under~~ public offering or the delivery of the Securities ~~Act to have been filed by~~ being delivered at such Closing Time on the ~~Settlement Date shall have been made within~~ terms and in the ~~applicable time period prescribed for such filing by Rule 424.~~manner contemplated in the Prospectus; (i) The Company ~~shall have furnished~~ has obtained and delivered to the Agent executed copies of an agreement from the shareholders listed on Schedule I hereto, substantially to the effect set forth in Subsection 3(g) hereof in form and substance reasonably satisfactory to the Agent~~'s counsel such additional documents, certificates and evidence as they may have reasonably requested.~~; (j) ~~Trading in~~ The Company shall have complied with the ~~Common Shares shall not have been suspended~~ provisions of Section 3(e) hereof with respect to the furnishing of prospectuses on the ~~NASDAQ Capital Market.~~ New York Business Day next succeeding the date of this Agreement; and (k) The ~~Shares~~ Company shall have ~~been listed~~ furnished or caused to be furnished to the Agent at such Closing Time certificates of officers of the Company satisfactory to the Agent as to the accuracy of the representations and ~~authorized for trading~~ warranties of the Company herein at and as of such Closing Time, as to the performance by the Company of all of its obligations hereunder to be performed at or prior to such Closing Time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as the Agent may reasonably request. (l) If any condition specified in this Section 5 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Agent by notice to the Company at any time on ~~the NASDAQ Capital Market~~ or prior to the first Settlement Date, and satisfactory evidence of such actions shall have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably requestapplicable Closing Time.

Appears in 2 contracts

Samples: Agency Agreement (Farmers National Banc Corp /Oh/), Agency Agreement (Farmers National Banc Corp /Oh/)

Conditions of Agent’s Obligations. The Company, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to ~~(i)~~ the accuracy ~~of,~~ of the representations and warranties of the Company and the Bank herein contained as of the date ~~hereof~~hereof and the Closing Time, ~~each Bringdown Date,~~ to the accuracy of the statements of officers and ~~each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements~~ directors of the Company ~~contained herein~~and the Bank made pursuant to the provisions hereof, ~~(ii)~~ to the performance by the Company and the Bank of ~~its~~ their obligations ~~hereunder~~ hereunder, and ~~(iii)~~ to the following ~~additional~~ further conditions: (a) If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no No stop order suspending the effectiveness of the Registration ~~Statement~~ Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any ~~part thereof, any Rule 462(b)~~ prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or ~~any amendment thereof~~proceedings therefor initiated or, ~~nor suspending or preventing~~ to the ~~use~~ knowledge of the ~~Base Prospectus~~Company, threatened by the ~~Prospectus~~ Commission or the OCC and no order suspending the sale of the Securities in any ~~Permitted Free Writing Prospectus~~ jurisdiction shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's satisfaction. (b) ~~The~~ At the Closing Time, the Agent shall ~~not~~ have ~~advised~~ received: (1) The favorable opinion, dated as of the Closing Time, of Lxxx Xxxxxx, PC, counsel for the Company and the Bank, in form and substance satisfactory to counsel for the Agent, as attached hereto as Exhibit A. (2) The favorable opinion, dated as of the Closing Time, of Rxxxxxxx Xxxxxxx Van Deuren s.c., counsel for the Agent, as to such matters as the Agent may reasonably require. (3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Lxxx Xxxxxx, PC and Rxxxxxxx Xxxxxxx Van Deuren s.c. shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration ~~Statement~~Statement (except for financial statements and schedules, notes to financial statements, stock valuation information or other financial or statistical data included therein or omitted therefrom, as to which counsel need make no statement), at the ~~Base Prospectus~~time it became effective, ~~the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains~~ contained an untrue statement of a material fact ~~which, in the Agent's opinion, is material,~~ or ~~omits~~ omitted to state a material fact ~~which, in the Agent's opinion, is material and is~~ required to be stated therein or is necessary to make the statements therein not misleading or that the Prospectus (~~i) with respect~~ except for financial statements and schedules, notes to financial statements, stock valuation information or other financial or statistical data included therein or omitted therefrom, as to which counsel need make no statement), at the time the Registration ~~Statement~~Statement became effective, ~~not misleading and (ii) with respect to~~ as of the ~~Base Prospectus,~~ date of the Prospectus or ~~any Permitted Free Writing Prospectus~~at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, Lxxx Xxxxxx, PC and Rxxxxxxx Xxxxxxx Van Deuren s.c. may rely as to matters of fact on certificates of officers and directors of the Company and the Bank and certificates of public officials. Rxxxxxxx Xxxxxxx Van Deuren s.c. may also rely on the opinion of Lxxx Xxxxxx, PC. (c) ~~Except as set forth or contemplated in~~ At the ~~Base Prospectus~~Closing Time, the ~~Prospectus~~ Company and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company or the Bank by the OCC, the Federal Reserve or any ~~Permitted Free Writing Prospectus~~other regulatory authority other than those which the OCC, ~~subsequent~~ the Federal Reserve or any such other regulatory authority permit to be completed after the Conversion. (d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in Registration Statement and the Prospectus), ~~or any material change in the short-term or long-term debt, of the Company, or~~ any Material Adverse ~~Effect or any development that would be reasonably likely to result in a Material Adverse Effect (~~Effect, whether or not arising in the ordinary course of business), and the Agent shall have received a certificate of the Chief Executive Officer of the Company and the Bank and the Chief Financial Officer of the Company and the Bank, dated as of Closing Time, to the effect that (i) there has been no such Material Adverse Effect, (ii) there shall have been no material transaction entered into by the Company or the Bank from the latest date as of which the financial condition of the Company or the Bank, as set forth in the Registration Statement, the Prospectus and the General Disclosure Package other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither the Company nor the Bank shall have received from the OCC, the Federal Reserve or the FDIC any order or direction (oral or written) to make any material ~~loss by strike~~change in the method of conducting its business with which it has not complied (which order or direction, ~~fire~~if any, ~~flood~~shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, ~~earthquake~~financial condition, ~~accident~~ results of operations or ~~other calamity~~prospects of the Company or the Bank, ~~whether~~ considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company and the Bank has complied with all agreements and satisfied all conditions on its part to be performed or ~~not covered by insurance~~satisfied at or prior to the Closing Time, ~~incurred~~ (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company or the Bank, threatened by the ~~Company~~Commission, (vii) no order suspending the Federal Reserve’s approval of the Holding Company Application, the ~~effect~~ OCC’s approval of ~~which~~the Conversion Application or the transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company or the Bank, threatened by the Federal Reserve or the OCC and no person has sought to obtain regulatory or judicial review of the action of the OCC in approving the Plan in accordance with the Conversion Regulations nor has any ~~such case described above~~person sought to obtain regulatory or judicial review of the action of the Federal Reserve in approving the Holding Company Application, in and (viii) no order suspending the ~~Agent's judgment, makes it impractical~~ Offerings or ~~inadvisable to offer or deliver~~ authorization for use of the ~~Shares. (d) The Company shall~~ Prospectus has been issued and no proceedings for that purpose have ~~performed each of its obligations under Section 4(p)~~been initiated by the OCC. (e) ~~The Company~~ At the Closing Time, the Agent shall have ~~performed~~ received a certificate of the Chief Executive Officer of the Company and the Bank and the Chief Financial Officer of the Company and the Bank, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement, the Prospectus and the General Disclosure Package; (ii) based on each of ~~its obligations~~ their knowledge, the Registration Statement, the Prospectus and the General Disclosure Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under ~~Section 4(q)~~which such statements were made, not misleading; (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement, the Prospectus and the General Disclosure Package fairly present the financial condition and results of operations of the Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus; (iv) they are responsible for establishing and maintaining disclosure controls and procedures; (v) they have designed such disclosure controls and procedures to ensure that material information relating to the Company and the Bank is made known to them; (vi) they have evaluated the effectiveness of their disclosure controls and procedures; and (vii) they have disclosed to Lxxx and the audit committee (A) all significant deficiencies in the design or operation of disclosure controls and procedures which are reasonably likely to adversely affect the Bank’s ability to record, process, summarize, and report financial data, and have identified for the Company’s and the Bank’s independent registered public accounting firm any material weaknesses in disclosure controls and procedures and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s and the Bank’s disclosure controls and procedures. (f) ~~The Company~~ As of the date hereof, the Agent shall have ~~performed each~~ received from Lxxx a letter dated such date, in form and substance satisfactory to the Agent, containing statements and information of ~~its obligations under Section 4(r)~~the type ordinarily included in auditors’ "comfort letters" to underwriters and marketing agents with respect to the financial statements and financial information contained in the Registration Statement and the Prospectus; provided that the letter shall use a "cut-off" date no more than three (3) business days prior to the date hereof. (g) ~~FINRA~~ At the Closing Time, the Agent shall ~~not~~ have ~~raised any objection~~ received from Lxxx a letter dated as of the Closing Time, to the ~~fairness and reasonableness~~ effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the ~~terms and arrangements under this Agreement~~specified date referred to shall be a date not more than three (3) business days prior to the Closing Time. (h) ~~All filings with~~ At the ~~Commission required by Rule 424 under~~ Closing Time, the Securities ~~Act to have been filed by the Settlement Date~~ shall have been ~~made within~~ approved for quotation on the ~~applicable time period prescribed for such filing by Rule 424~~OTC Pink Marketplace. (i) ~~The Company~~ At the Closing Time, the Agent shall have ~~furnished to Agent and~~ received a letter from the ~~Agent's counsel such additional documents~~Appraiser, ~~certificates and evidence~~ dated as ~~they may have reasonably requested~~of the Closing Time, confirming its appraisal. (j) ~~Trading in the Common Shares shall not have been suspended on the NASDAQ Capital Market. The Shares shall have been listed and authorized for trading on the NASDAQ Capital Market~~ At or prior to the ~~first Settlement Date~~Closing Time, the Agent shall receive (i) a copy of the Conversion Application and a copy of the letters from the OCC approving the Conversion Application, (ii) a copy of the order from the Commission declaring the Registration Statement effective, (iii) a copy of the letter from the Federal Reserve approving the Holding Company Application, (iv) a certificate from the FHLB evidencing the Bank’s membership therein, and ~~satisfactory evidence~~ (v) a certificate from the FDIC evidencing the Bank’s insurance of such actions shall have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably requestaccounts.

Appears in 2 contracts

Samples: Agency Agreement (Eureka Homestead Bancorp, Inc.), Agency Agreement (Eureka Homestead Bancorp, Inc.)

Conditions of Agent’s Obligations. The obligations of the Agent hereunder are subject to (i) the accuracy of, as of the date hereof, each Bringdown Date, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained ~~herein~~herein (which representations and warranties shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented on such date), (ii) the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule ~~164(b));~~ 164(b)); the Registration Statement shall remain ~~effective;~~ effective; no stop order suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the use of the ~~Base Prospectus, the~~ Prospectus or any Permitted Free Writing Prospectus shall have been ~~issued;~~ issued; no proceedings for the issuance of such an order shall have been initiated or ~~threatened;~~ threatened; and any request of the Commission for additional information (to be included in the Registration Statement~~, the Base Prospectus~~, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's ’s satisfaction. (b) The Agent shall not have advised the Company that the Registration Statement~~, the Base Prospectus~~, the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which, in the Agent's ’s opinion, is material, or omits to state a fact which, in the Agent's ’s opinion, is material and is required to be stated therein or is necessary to make the statements therein (i) with respect to the Registration Statement, not misleading and (ii) with respect to the ~~Base Prospectus, the~~ Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading. (c) Except as set forth or contemplated in ~~the Base Prospectus,~~ the Prospectus and any Permitted Free Writing Prospectus, subsequent to the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in the Registration Statement or the Prospectus), or any material change in the short-term or long-term debt, of the Company, or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described above, in the Agent's ’s judgment, makes it impractical or inadvisable to offer or deliver the Shares. (d) The Company shall have performed each of its obligations under Section 4(p). (e) The Company shall have performed each of its obligations under Section 4(q). (f) The Company shall have performed each of its obligations under Section 4(r). (g) FINRA shall not have raised any objection to the fairness and reasonableness of the terms and arrangements under this Agreement. (h) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished to Agent and the Agent's ’s counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common Shares shall not have been suspended on the NASDAQ Capital Market. The Shares shall have been listed and authorized for trading on the NASDAQ Capital Market prior to the first Settlement Date, and satisfactory evidence of such actions shall have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's ’s counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as the Agent shall reasonably request.

Appears in 2 contracts

Samples: Equity Distribution Agreement (Castor Maritime Inc.), Equity Distribution Agreement (Castor Maritime Inc.)

Conditions of Agent’s Obligations. The Company, the Bank, the MHC and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to ~~(i)~~ the accuracy ofof the representations and warranties of the Company, the Bank and the MHC herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Bank and the MHC made pursuant to the provisions hereof, ~~each Bringdown Date, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein, (ii)~~ to the performance by the Company and the Bank of ~~its~~ their obligations ~~hereunder~~ hereunder, and ~~(iii)~~ to the following ~~additional~~ further conditions: (a) If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no No stop order suspending the effectiveness of the Registration ~~Statement~~ Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any ~~part thereof, any Rule 462(b)~~ prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or ~~any amendment thereof~~proceedings therefor initiated or, ~~nor suspending or preventing~~ to the ~~use~~ knowledge of the ~~Base Prospectus~~Company, threatened by the ~~Prospectus~~ Commission or the FRB and no order suspending the sale of the Securities in any ~~Permitted Free Writing Prospectus~~ jurisdiction shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's satisfaction. (b) ~~The~~ At the Closing Time, the Agent shall ~~not~~ have ~~advised~~ received: (1) The favorable opinion, dated as of the ~~Company~~ Closing Time, of Xxxx Xxxxxx, PC, counsel for the Company, the Bank and the MHC, in form and substance satisfactory to counsel for the Agent, as attached hereto as Exhibit A. (2) The favorable opinion, dated as of the Closing Time, of Silver, Xxxxxxxx, Xxxx & Xxxxxxx LLP, counsel for the Agent, as to such matters as the Agent may reasonably require. (3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Xxxx Xxxxxx, PC and Silver, Xxxxxxxx, Xxxx & Xxxxxxx LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration ~~Statement~~Statement (except for financial statements and schedules and other financial, pro forma or statistical data included therein, as to which counsel need make no statement), at the ~~Base Prospectus~~time it became effective, ~~the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains~~ contained an untrue statement of a material fact ~~which, in the Agent's opinion, is material,~~ or ~~omits~~ omitted to state a material fact ~~which, in the Agent's opinion, is material and is~~ required to be stated therein or is necessary to make the statements therein not misleading or that the Prospectus (~~i) with respect~~ except for financial statements and schedules and other financial, pro forma or statistical data included therein, as to which counsel need make no statement), at the time the Registration ~~Statement~~Statement became effective, ~~not misleading and (ii) with respect to~~ as of the ~~Base Prospectus,~~ date of the Prospectus or ~~any Permitted Free Writing Prospectus~~at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, Xxxx Xxxxxx, PC and Silver, Xxxxxxxx, Xxxx & Xxxxxxx LLP may rely as to matters of fact on certificates of officers and directors of the Company and the Bank and certificates of public officials. Silver, Xxxxxxxx, Taff & Xxxxxxx LLP may also rely on the opinion of Xxxx Xxxxxx, PC. (c) ~~Except as set forth or contemplated~~ At the Closing Time referred to in ~~the Base Prospectus~~Section 2 hereof, the ~~Prospectus~~ Company, the Bank and the MHC shall have completed in all material respects the conditions precedent to the Reorganization in accordance with the Plan, the applicable MHC Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Reorganization imposed upon the Company, the Bank or the MHC by the FRB, the OCC or the FDIC or any ~~Permitted Free Writing Prospectus~~other regulatory authority other than those which the FRB, ~~subsequent~~ the OCC or the FDIC or any such other regulatory authority permit to be completed after the Reorganization. (d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in Registration Statement and the Prospectus), ~~or any material change in the short-term or long-term debt, of the Company, or~~ any Material Adverse ~~Effect or any development that would be reasonably likely to result in a Material Adverse Effect (~~Effect, whether or not arising in the ordinary course of business), and the Agent shall have received a certificate of the Chief Executive Officer of the Company, the Bank and the MHC and the Chief Financial Officer of the Company, the Bank and the MHC, dated as of Closing Time, to the effect that (i) there has been no such Material Adverse Effect, (ii) there shall have been no material transaction entered into by the Company, the Bank or the MHC from the latest date as of which the financial condition of the Company or the Bank, as set forth in the Registration Statement, the Prospectus and the General Disclosure Package other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) none of the Company, the Bank or the MHC shall have received from the FRB, the OCC or the FDIC any order or direction (oral or written) to make any material ~~loss~~ change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the Bank or the MHC, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the Bank and the MHC have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company, the Bank or the MHC, threatened by ~~strike~~the Commission, ~~fire~~(vii) no order suspending the FRB’s approval of the Holding Company Application and the MHC Notice, ~~flood~~the OCC’s approval of the OCC Applications and the FDIC’s approval of the FDIC Application or the transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, ~~earthquake~~to the knowledge of the Company, ~~accident~~ the Bank or the MHC, threatened by the FRB, the OCC or the FDIC and no person has sought to obtain regulatory or judicial review of the action of the FRB in approving the Plan in accordance with the MHC Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the MHC Notice or the Holding Company Application, and (viii) no order suspending the Subscription and Community Offering or the Syndicated Offering or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the FRB. (e) At the Closing Time, the Agent shall have received a certificate of the Chief Executive Officer of the Company, the Bank and the MHC and the Chief Financial Officer of the Company, the Bank and the MHC, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement, the Prospectus and the General Disclosure Package; (ii) based on each of their knowledge, the Registration Statement, the Prospectus and the General Disclosure Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; (iii) based on each of their knowledge, the financial statements and other ~~calamity~~financial information included in the Registration Statement, the Prospectus and the General Disclosure Package fairly present the financial condition and results of operations of the Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus; (iv) they are responsible for establishing and maintaining disclosure controls and procedures; (v) they have designed such disclosure controls and procedures to ensure that material information relating to the Company and the Bank is made known to them; (vi) they have evaluated the effectiveness of their disclosure controls and procedures; and (vii) they have disclosed to PKM and the audit committee (A) all significant deficiencies in the design or operation of disclosure controls and procedures which are reasonably likely to adversely affect the Bank’s ability to record, process, summarize, and report financial data, and have identified for the Company’s and the Bank’s independent registered public accounting firm any material weaknesses in disclosure controls and procedures and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s and the Bank’s disclosure controls and procedures. (f) As of the date hereof, the Agent shall have received from PKM a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the Company and the Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the MHC Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act; (ii) it is their opinion that the financial statements and supporting schedules included in the Registration Statement and covered by ~~insurance, incurred~~ their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the ~~Company~~Agent and PKM set forth in detail in such letters, nothing has come to their attention which causes them to believe that, except as set forth in such letters, (A) the unaudited amounts of net interest income and net income set forth under “Selected Financial and Other Data” or under “Recent Developments” in the Prospectus and the General Disclosure Package do not agree with the amounts set forth in unaudited financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited consolidated financial statements included in the Registration Statement, the Prospectus and the General Disclosure Package, (B) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the long-term or short-term debt of the Bank or any decrease in total assets, the allowance for loan losses, total deposits or retained earnings of the Bank, in each case as compared with the amounts shown in the December 31, 2016 unaudited statements of financial condition presented under the “Recent Developments” caption in the Registration Statement or, (D) during the period from December 31, 2016 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Bank, except in all instances for increases or decreases which the Registration Statement, the Prospectus and the General Disclosure Package disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information that are included in the Registration Statement, Prospectus and the General Disclosure Package and that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company and the Bank identified in such letter. (g) At the Closing Time, the Agent shall have received from PKM a letter dated as of the Closing Time, to the effect that they reaffirm the statements made in the letters furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time. (h) At the Closing Time, the Securities shall have been approved for listing on the Nasdaq Capital Market. (i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal. (j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent. (k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in ~~any such case described above, in~~ the judgment of the Agent~~'s judgment~~, ~~makes~~ are so material and adverse as to make it ~~impractical~~ impracticable to market the Securities or ~~inadvisable~~ to ~~offer~~ enforce contracts, including subscriptions or ~~deliver~~ orders, for the Shares. (d) The Company shall have performed each of its obligations under Section 4(p). (e) The Company shall have performed each of its obligations under Section 4(q). (f) The Company shall have performed each of its obligations under Section 4(r). (g) FINRA shall not have raised any objection to the fairness and reasonableness sale of the ~~terms~~ Securities, and ~~arrangements under this Agreement.~~ (hii) ~~All filings with~~ trading generally on any of the ~~Commission required by Rule 424 under~~ NYSE MKT, the ~~Securities Act to have been filed by~~ New York Stock Exchange or the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished to Agent and the Agent's counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common Shares Nasdaq shall not have been ~~suspended on the NASDAQ Capital Market. The Shares~~ suspended, and minimum or maximum prices for trading shall not have been ~~listed and authorized~~ fixed, or maximum ranges for ~~trading on~~ prices for securities have been required, by any of said Exchanges or by order of the ~~NASDAQ Capital Market prior to the first Settlement Date~~Commission or any other governmental authority, and ~~satisfactory evidence of such actions~~ a banking moratorium shall not have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably requestdeclared by either Federal or Georgia authorities.

Appears in 2 contracts

Samples: Agency Agreement (Community First Bancshares, Inc.), Agency Agreement (Community First Bancshares, Inc.)

Conditions of Agent’s Obligations. The obligations of the Agent hereunder are subject to (i) the accuracy of, as of the date hereof, each Bringdown Date, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein, (ii) the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities ~~Act or the Rules and Regulations~~Act, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no stop order suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Base Prospectus, Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, Prospectus Supplement, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's ’s satisfaction. (b) The Agent shall not have advised the Company that the Registration Statement, the Base Prospectus, Prospectus Supplement, the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which, in the Agent's ’s opinion, is material, or omits to state a fact which, in the Agent's ’s opinion, is material and is required to be stated therein or is necessary to make the statements therein (i) with respect to the Registration Statement, not misleading and (ii) with respect to the Base Prospectus, Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading. (c) Except as set forth or contemplated in the Base Prospectus, Prospectus Supplement, the Prospectus and any Permitted Free Writing Prospectus, subsequent to the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in the Prospectus), or any material change in the short-term or long-term debt, of the Company, or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake, epidemic, pandemic, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described above, in the Agent's ’s judgment, makes it impractical or inadvisable to offer or deliver the Shares. (d) The Company shall have performed each of its obligations under Section ~~4(p~~3(p), (q), (r), (s), (t) and (u). (e~~) The Company shall have performed each of its obligations under Section 4(q). (f) The Company shall have performed each of its obligations under Section 4(r). (g~~) FINRA shall not have raised any objection to the fairness and reasonableness of the terms and arrangements under this Agreement. (hf) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (ig) The Company shall have furnished to Agent and the Agent's ’s counsel such additional documents, certificates and evidence as they may have reasonably requested. (jh) Trading in the Common ~~Shares~~ Stock shall not have been suspended on ~~the NASDAQ Capital Market~~Nasdaq. The Shares shall have been listed and authorized for trading on ~~the NASDAQ Capital Market~~ Nasdaq prior to the first Settlement Date, and satisfactory evidence of such actions shall have been provided to the Agent and its counsel, which may include oral confirmation from a representative of ~~the NASDAQ Capital Market~~Nasdaq. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Agent and the Agent's ’s counsel. The Company will furnish the Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably request.

Appears in 2 contracts

Samples: Equity Distribution Agreement (Sonoma Pharmaceuticals, Inc.), Equity Distribution Agreement (Applied Dna Sciences Inc)

Conditions of Agent’s Obligations. The Company, the Mutual Holding Company, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to ~~(i)~~ the accuracy ofof the representations and warranties of the Company, the Mutual Holding Company and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Mutual Holding Company and the Bank made pursuant to the provisions hereof, ~~each Bringdown Date, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein, (ii)~~ to the performance by the Company, the Mutual Holding Company and the Bank of ~~its~~ their obligations ~~hereunder~~ hereunder, and ~~(iii)~~ to the following ~~additional~~ further conditions: (a) If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or ~~any part thereof~~proceedings therefor initiated or threatened by the Commission, ~~any Rule 462(b) Registration Statement,~~ no order suspending the Offerings or ~~any amendment thereof, nor suspending or preventing the~~ authorization for final use of the ~~Base Prospectus, the Prospectus or any Permitted Free Writing~~ Prospectus shall have been ~~issued;~~ issued or proceedings therefor initiated or threatened by the Commission or the OTS, and no ~~proceedings for~~ order suspending the ~~issuance~~ sale of ~~such an order~~ the Securities in any jurisdiction shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's satisfactionissued. (b) ~~The~~ At Closing Time, the Agent shall ~~not~~ have ~~advised~~ received: (1) The favorable opinion, dated as of Closing Time, of Xxxxxxxxxx Xxxxxxxx LLP, counsel for the Company, the Mutual Holding Company and the Bank, in form and substance satisfactory to counsel for the Agent, as attached as Exhibit A hereto: (2) The favorable opinion, dated as of Closing Time, of Xxxxxxxx, Xxxxx & Xxxxxx LLP, counsel for the Agent, with respect to the matters set forth in Section 5(b)(1)(i), (iv), (v), (vi), (ix), (xi), (xiv) and (xvi) and such other matters as the Agent may reasonably require. (3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Xxxxxxxxxx Xxxxxxxx LLP and Xxxxxxxx, Xxxxx & Xxxxxx LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration ~~Statement~~Statement (except for financial statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the ~~Base Prospectus, the Prospectus~~time it became effective, or ~~any amendment or supplement thereto~~that the General Disclosure Package as of the Applicable Time, ~~or any Permitted Free Writing Prospectus, contains~~ contained an untrue statement of a material fact ~~which, in the Agent's opinion, is material,~~ or ~~omits~~ omitted to state a material fact ~~which, in the Agent's opinion, is material and is~~ required to be stated therein or is necessary to make the statements therein not misleading or that the Prospectus (~~i) with respect~~ except for financial statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration ~~Statement~~Statement became effective or at Closing Time, ~~not misleading and (ii) with respect~~ included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the ~~Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus~~statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, Xxxxxxxxxx Xxxxxxxx LLP and Xxxxxxxx, Xxxxx & Xxxxxx LLP may rely as to matters of fact on certificates of officers and directors of the Company, the Mutual Holding Company, the Bank and the Subsidiaries and certificates of public officials, and Xxxxxxxx, Xxxxx & Xxxxxx LLP may also rely on the opinion of Xxxxxxxxxx Xxxxxxxx LLP with respect to matters set forth in paragraphs (i), (iv), (v), (vi), (vii), (viii), (ix), (xi), (xiii), (xiv), (xv), (xvi) and (xvii). (c) ~~Except as set forth or contemplated~~ At Closing Time referred to in ~~the Base Prospectus~~Section 2, the ~~Prospectus~~ Company, the Mutual Holding Company and the Bank shall have completed in all material respects the conditions precedent to the Reorganization and Minority Stock Issuance in accordance with the Plan, the applicable OTS Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Reorganization and Minority Stock Issuance imposed upon the Company, the Mutual Holding Company or the Bank by the OTS, or any ~~Permitted Free Writing Prospectus~~other regulatory authority other than those which the OTS permits to be completed after the Reorganization and Minority Stock Issuance. (d) At Closing Time, ~~subsequent to~~ there shall not have been, since the date hereof or since the respective dates as of which information is given ~~therein~~in the Registration Statement and the Prospectus, ~~the Company shall not have incurred~~ any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any adverse change in the ~~capital stock~~financial condition, results of operations, business affairs or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in the Prospectus), or any material change in the short-term or long-term debt, prospects of the Company, ~~or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (~~the Mutual Holding Company, the Bank, the Subsidiaries and Fairfield County Trust I, considered as one enterprise, whether or not arising in the ordinary course of ~~business)~~business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the Mutual Holding Company and of the Bank and the chief financial or ~~any~~ chief accounting officer of the Company, of the Mutual Holding Company and of the Bank, dated as of Closing Time, to the effect that (i) there has been no such material ~~loss by strike~~adverse change, ~~fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred~~ (ii) there shall have been no material transaction entered into by the Company, the Mutual Holding Company or the Bank from the latest date as of which the financial condition of the Company, the Mutual Holding Company or the Bank, as set forth in the Registration Statement and the Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice (iii) neither the Company, the Mutual Holding Company nor the Bank shall have received from the OTS any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the Mutual Holding Company or the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the Mutual Holding Company and the Bank have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission, and (vii) no order suspending the Subscription and Community Offering or Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or threatened by the OTS and no person has sought to obtain regulatory or judicial review of the action of the OTS in approving the Plan in accordance with the OTS Regulations nor has any person sought to obtain regulatory or judicial review of the action of the OTS in approving the Plan. (e) At the Closing Time, the Agent shall have received a certificate of the Chief Executive Officer and President of the Company, of the Mutual Holding Company and of the Bank and the Chief Financial Officer of the Company, of the Mutual Holding Company and of the Bank, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the Prospectus fairly present the financial condition and results of operations of the Bank and the Subsidiaries as of and for the dates and periods covered by the Registration Statement and the Prospectus. (f) At the time of the execution of this Agreement, the Agent shall have received from KPMG LLP a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the Company, the Mutual Holding Company, the Bank and the Subsidiaries within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the OTS Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and KPMG LLP set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the Company included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations and the OTS Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Financial and Other Data” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or net worth of the Company, in each case as compared with the amounts shown in the consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from January 1, 2010 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Company, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and Prospectus and which are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the Mutual Holding Company and the Bank identified in such letter. (g) At Closing Time, the Agent shall have received from KPMG LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to Closing Time. (h) At Closing Time, the Securities shall have been approved for quotation on the Nasdaq Global Market upon notice of issuance. (i) At Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal. (j) At Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent. (k) At any time prior to Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in ~~any such case described above, in~~ the judgment of the Agent~~'s judgment~~, ~~makes~~ is so material and adverse as to make it ~~impractical~~ impracticable to market the Securities or ~~inadvisable~~ to ~~offer~~ enforce contracts, including subscriptions or ~~deliver~~ orders, for the Shares. (d) The Company shall have performed each of its obligations under Section 4(p). (e) The Company shall have performed each of its obligations under Section 4(q). (f) The Company shall have performed each of its obligations under Section 4(r). (g) FINRA shall not have raised any objection to the fairness and reasonableness sale of the ~~terms~~ Securities, and ~~arrangements under this Agreement.~~ (hii) ~~All filings with~~ trading generally on either the ~~Commission required by Rule 424 under~~ American Stock Exchange, the ~~Securities Act to have been filed by~~ New York Stock Exchange or the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished to Agent and the Agent's counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common Shares Nasdaq Stock Market shall not have been ~~suspended on the NASDAQ Capital Market. The Shares~~ suspended, and minimum or maximum prices for trading shall not have been ~~listed and authorized~~ fixed, or maximum ranges for ~~trading on~~ prices for securities have been required, by either of said Exchanges or by order of the ~~NASDAQ Capital Market prior to the first Settlement Date~~Commission or any other governmental authority, and ~~satisfactory evidence of such actions~~ a banking moratorium shall not have been ~~provided to the Agent and its counsel~~declared by either Federal, which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably requestConnecticut or New York authorities.

Appears in 2 contracts

Samples: Agency Agreement (Fairfield County Bank Corp.), Agency Agreement (Fairfield County Bank Corp.)

Conditions of Agent’s Obligations. The obligations of the ~~Agent~~ Agents hereunder shall be subject, in their discretion, to the condition that all representations and warranties and other statements of the Company herein or in certificates of any officer of the Company delivered pursuant to the provisions hereof are ~~subject to (i) the accuracy of,~~ true and correct as of the time of the execution of this Agreement, the date ~~hereof,~~ of any executed Terms Agreement and as of each ~~Bringdown~~ Registration Statement Amendment Date, Company Periodic Report Date, Applicable Time and ~~each Time of Sale (in each case~~Settlement Date, ~~as if made at such date), and compliance with, all representations, warranties and agreements of~~ to the condition that the Company ~~contained herein, (ii) the performance by the Company~~ shall have performed all of its obligations hereunder theretofore to be performed, and ~~(iii)~~ the following additional conditions: (a) ~~If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company~~ The Prospectus shall have been filed ~~the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus~~ with the Commission pursuant to Rule 424(b) on or prior to the date hereof and in accordance with Section 3(a) hereof; any other material required to be filed by the ~~manner and~~ Company pursuant to Rule 433(d) shall have been filed with the Commission within the applicable time ~~period so required (without reliance on~~ periods prescribed for such filings by Rule ~~424(b)(8) or Rule 164(b));~~ 433 under the ~~Registration Statement shall remain effective~~1933 Act; no stop order suspending the effectiveness of the Registration Statement or any part ~~thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus~~ thereof shall have been ~~issued;~~ issued and no ~~proceedings~~ proceeding for ~~the issuance of such an order~~ that purpose shall have been initiated or ~~threatened~~threatened by the Commission; and ~~any request~~ all requests for additional information on the part of the Commission ~~for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise)~~ shall have been complied ~~with~~ with; and the FINRA shall have raised no objection to the ~~Agent's satisfaction~~fairness and reasonableness of the underwriting terms and arrangements. (b) ~~The Agent~~ On every date specified in Section 3(i) hereof and on such other dates as reasonably requested by the Agents, Manatt, Xxxxxx & Xxxxxxxx, LLP, counsel for the Agents, shall ~~not~~ have ~~advised~~ furnished to the ~~Company that the Registration Statement~~Agents such written opinion or opinions, ~~the Base Prospectus~~dated as of such date, the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which, in the Agent's opinion, is material, or omits to state a fact which, in the Agent's opinion, is material and is required to be stated therein or is necessary to make the statements therein (i) with respect to such matters as the ~~Registration Statement~~Agents may reasonably request, ~~not misleading~~ and ~~(ii) with respect~~ such counsel shall have received such papers and information as they may reasonably request to ~~the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading~~enable them to pass upon such matters. (c) ~~Except~~ On every date specified in Section 3(j) hereof and on such other dates as ~~set forth or contemplated in~~ reasonably requested by the ~~Base Prospectus~~Agents following the filing of any current reports on Form 8-K, the ~~Prospectus and any Permitted Free Writing Prospectus, subsequent to the respective dates as of which information is given therein,~~ General Counsel for the Company shall ~~not~~ have ~~incurred any material liabilities~~ furnished to the Agents written opinion or ~~obligations~~opinions, ~~direct or contingent~~dated as of such date, ~~or entered into any material transactions, or declared or paid any dividends or made any distribution~~ in form and substance satisfactory to the Agents. (d) On every date specified in Section 3(j) hereof and on such other dates as reasonably requested by the Agents following the filing of any ~~kind~~ current reports on Form 8-K, Carlsmith Ball LLP, Hawaii counsel for the Company, shall have furnished to the Agents written opinion or opinions, dated as of such date, in form and substance satisfactory to the Agents. (e) On every date specified in Section 3(j) hereof and on such other dates as reasonably requested by the Agents following the filing of any current reports on Form 8-K, Xxxxxxxx & Xxxxxxxx LLP, special counsel for the Company, shall have furnished to the Agents written opinion or opinions, dated as of such date, in form and substance satisfactory to the Agents. (f) At the dates specified in Section 3(k) hereof and on such other dates as reasonably requested by the Agents following the filing of any current reports on Form 8-K, the independent accountants of the Company who have certified the financial statements of the Company and the Subsidiaries included or incorporated by reference in the Registration Statement shall have furnished to the Agents a letter, dated as of the date of delivery thereof and addressed to the Agents, in form and substance reasonably satisfactory to the Agents and their counsel, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to agents with respect to ~~its capital stock~~ the financial statements of the Company and ~~there shall not have been any change~~ the Subsidiaries included or incorporated by reference in the ~~capital stock, or~~ Registration Statement. (g) (i) Neither the Company nor any ~~issuance~~ of ~~options, warrants, convertible securities or other rights to purchase~~ its Subsidiaries shall have sustained since the ~~capital stock (other than as a result~~ date of the ~~exercise of any currently outstanding options or warrants that are disclosed~~ latest audited financial statements included in ~~the Prospectus), or any material change in the short-term or long-term debt,~~ each of the ~~Company,~~ General Disclosure Package and the Prospectus any loss or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, interference with its business from fire, ~~flood~~explosion, ~~earthquake, accident~~ flood or other calamity, whether or not covered by insurance, ~~incurred by~~ or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in each of the ~~Company~~General Disclosure Package and the Prospectus, and (ii) since the respective dates as of which information is given in each of the General Disclosure Package and the Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, shareholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in each of the General Disclosure Package and the Prospectus, the effect of which, in any such case described ~~above~~in clause (i) or (ii), is in the ~~Agent's judgment, makes~~ judgment of the Agents so material and adverse as to make it ~~impractical~~ impracticable or inadvisable to ~~offer~~ proceed with the public offering or ~~deliver~~ the ~~Shares. (d) The Company shall have performed each~~ delivery of its obligations under Section 4(p). (e) The Company shall have performed each of its obligations under Section 4(q). (f) The Company shall have performed each of its obligations under Section 4(r). (g) FINRA shall not have raised any objection to the ~~fairness and reasonableness of~~ Shares being delivered on the Settlement Date on the terms and ~~arrangements under~~ in the manner contemplated in each of the General Disclosure Package and the Prospectus. As used in this paragraph, references to the General Disclosure Package and the Prospectus exclude any amendments or supplements thereto subsequent to the date of this Agreement. (h) Upon commencement of the offering of Shares under this Agreement and on such other dates as reasonably requested by either Agent, the Company will furnish or cause to be furnished promptly to the Agents a certificate of an officer in a form satisfactory to the Agents stating the minimum price for the sale of such Shares pursuant to this Agreement and the maximum number of Shares that may be sold pursuant to this Agreement or, alternatively, maximum gross proceeds from such sales, as authorized from time to time by the Company’s Board of Directors or a duly authorized committee thereof or, in connection with any amendment, revision or modification of such minimum price or maximum Share number or amount, a new certificate with respect thereto; (i) On each date specified in Section 3(i), each Agent shall have received certificates of officers of the Company satisfactory to each Agent, dated as of such date, as to the accuracy of the representations and warranties of the Company herein, as to the performance by the Company of all of its obligations hereunder to be performed as of such date, as to the matters set forth in subsections (a) and (g) of this Section and as to such other matters as the Agents may reasonably request. (j) The Company shall have complied with the provisions of Section 3(c) hereof with respect to the timely furnishing of prospectuses. (k) On such dates as reasonably requested by the Agents, the Company shall have conducted due diligence sessions, in form and substance satisfactory to the Agents. (l) All filings with the Commission required by Rule 424 under the ~~Securities~~ 1933 Act to have been filed by ~~the~~ each Applicable Time or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule ~~424~~424 under the 1933 Act (without reliance on Rule 424(b)(8) under the 1933 Act). (m) On or after the date hereof (i) no downgrading shall have occurred in the rating accorded to the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the 1933 Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Company’s debt securities or preferred stock. (n) On or after the date hereof there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE, the Nasdaq Global Market or the Nasdaq Global Select Market; (ii) a suspension or material limitation in trading of any securities of the Company on any exchange or in the over-the-counter market; (iii) a general moratorium on commercial banking activities declared by either federal, New York or Hawaii state authorities; (iv) any major disruption of settlements of securities, payment, or clearance services in the United States or any other country where such securities are listed, or (v) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or a material adverse change in general economic, political or financial conditions, or currency exchange rates or exchange controls, including without limitation as a result of terrorist activities after the date hereof, or any other calamity or crisis, if the effect of any such event specified in this clause (v), in the judgment of either Agent, is so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered on the Settlement Date on the terms and in the manner contemplated in either the General Disclosure Package or the Prospectus or to enforce contracts for the sale of the Shares. (o) The Shares shall either have been (i) approved for listing on the NYSE, subject only to notice of issuance, or (ii) the Company shall have ~~furnished to Agent and~~ filed an application for listing of the ~~Agent's counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common~~ Shares ~~shall not have been suspended~~ on the ~~NASDAQ Capital Market. The Shares shall have been listed and authorized for trading on~~ NYSE at, or prior to, the ~~NASDAQ Capital Market prior to the first~~ Settlement Date, and satisfactory evidence of such actions shall have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably request.

Appears in 2 contracts

Samples: Distribution Agreement (Central Pacific Financial Corp), Distribution Agreement (Central Pacific Financial Corp)

Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to ~~(i)~~ the accuracy ofof the representations and warranties of the Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC and the Bank made pursuant to the provisions hereof, ~~each Bringdown Date, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein, (ii)~~ to the performance by the ~~Company~~ Company, the MHC and the Bank of ~~its~~ their obligations ~~hereunder~~ hereunder, and ~~(iii)~~ to the following ~~additional~~ further conditions: (a) If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or ~~any part thereof~~proceedings therefor initiated or, ~~any Rule 462(b) Registration Statement~~to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or ~~any amendment thereof, nor suspending or preventing~~ the authorization for final use of the ~~Base Prospectus, the Prospectus or any Permitted Free Writing~~ Prospectus shall have been ~~issued;~~ issued or proceedings therefor initiated or threatened by the Commission or the FRB, and no ~~proceedings for~~ order suspending the ~~issuance~~ sale of ~~such an order~~ the Securities in any jurisdiction shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's satisfactionissued. (b) ~~The~~ At Closing Time, the Agent shall ~~not~~ have ~~advised~~ received: (i) The written opinion contained in Exhibit 1 hereof, dated as of Closing Time, of Xxxxxxx Procter LLP, special counsel for the ~~Company~~ Company, the MHC and the Bank, in form and substance satisfactory for the Agent. (ii) The favorable opinion contained in Exhibit 2 hereof, dated as of Closing Time, of Xxxx Xxxxxx, PC, counsel for the Agent, in form and substance satisfactory to the Agent. (iii) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Xxxxxxx Procter LLP and Xxxx Xxxxxx, PC shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration ~~Statement~~Statement (except for financial statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the ~~Base Prospectus~~time it became effective, ~~the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains~~ contained an untrue statement of a material fact ~~which, in the Agent's opinion, is material,~~ or ~~omits~~ omitted to state a material fact ~~which, in the Agent's opinion, is material and is~~ required to be stated therein or is necessary to make the statements therein not misleading or that the Prospectus (~~i) with respect~~ except for financial statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration ~~Statement~~Statement became effective or at the Closing Time, ~~not misleading and (ii) with respect~~ or that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted to state a material fact necessary in order to make the ~~Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus~~statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, Xxxxxxx Procter LLP and Xxxx Xxxxxx, PC may rely as to matters of fact on certificates of officers and directors of the Company, the MHC, the Bank and the Subsidiaries, as applicable, and certificates of public officials, and Xxxx Xxxxxx PC may also rely on the opinion of Xxxxxxx Procter LLP with respect to matters set forth in paragraphs [ ] therein. (c) ~~Except as set forth or contemplated~~ At Closing Time referred to in ~~the Base Prospectus~~Section 2, the ~~Prospectus~~ Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Offerings in accordance with the Plan, the applicable Massachusetts Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Offerings imposed upon the Company, the MHC or the Bank by the Division, the FRB or any ~~Permitted Free Writing Prospectus~~other regulatory authority, ~~subsequent~~ other than those which the Division, the FRB or such other regulatory authority permits to be completed after the Offerings. (d) At Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given ~~therein~~in the Registration Statement and the Prospectus, ~~the Company shall not have incurred~~ any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any adverse change in the ~~capital stock~~financial condition, results of operations, business affairs or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in the Prospectus), or any material change in the short-term or long-term debt, prospects of the Company, ~~or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (~~the MHC, the Bank and the Subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of ~~business)~~business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC and of the Bank and the Chief Financial or ~~any~~ Chief Accounting Officer of the Company, of the MHC and of the Bank, dated as of Closing Time, to the effect that (i) there has been no such material ~~loss by strike~~adverse change, ~~fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred~~ (ii) there shall have been no material transaction entered into by the Company, the MHC, or the Bank from the latest date as of which the financial condition of the Company, the MHC or the Bank is set forth in the Registration Statement and the Prospectus, other than transactions specifically disclosed therein and transactions in the ordinary course of business consistent with past practice, (iii) neither the Company, the MHC, nor the Bank shall have received from the Division, the FRB or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or that materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC or the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC and the Bank has complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the best of their knowledge after inquiry, threatened by the Commission, and (vii) no order suspending the Subscription and Community Offering or Syndicated Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or, to the best of their knowledge, threatened by the Division and no person has sought to obtain regulatory or judicial review of the action of the Division in approving the Plan in accordance with the Massachusetts Regulations. (e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC and of the Bank, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the Prospectus fairly present the financial condition and results of operations of the Company and any subsidiary, as of and for the dates and periods covered by the Registration Statement and the Prospectus. (f) At the time of the execution of this Agreement, the Agent shall have received from Wolf & Company, P.C. a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the Company, the MHC, the Bank and the Subsidiaries within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the Massachusetts Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and Wolf & Company, P.C. set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the Company included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations and the Massachusetts Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) days prior to the date of this Agreement, there has been any increase in the long-term or short-term debt of the Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or shareholders’ equity of the Company, in each case as compared with the amounts shown in the consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from January 1, 2016 to a specified date not more than five (5) days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Company, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or will likely occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information that are included in the Registration Statement and Prospectus and that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the MHC and the Bank identified in such letter. (g) At Closing Time, the Agent shall have received from Wolf & Company, P.C. a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to Closing Time. (h) At Closing Time, the Securities and the Foundation Shares shall have been approved for listing on the Nasdaq Global Market upon notice of issuance. (i) At Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its Appraisal. (j) At Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent. (k) At any time prior to Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in ~~any such case described above, in~~ the judgment of the Agent~~'s judgment~~, ~~makes~~ is so material and adverse as to make it ~~impractical~~ impracticable to market the Securities or ~~inadvisable~~ to ~~offer~~ enforce contracts, including subscriptions or ~~deliver~~ orders, for the Shares. (d) The Company shall have performed each of its obligations under Section 4(p). (e) The Company shall have performed each of its obligations under Section 4(q). (f) The Company shall have performed each of its obligations under Section 4(r). (g) FINRA shall not have raised any objection to the fairness and reasonableness sale of the ~~terms~~ Securities, and ~~arrangements under this Agreement.~~ (hii) ~~All filings with~~ trading generally on either the ~~Commission required by Rule 424 under~~ New York Stock Exchange or the Securities Act to have been filed by the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished to Agent and the Agent's counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common Shares Nasdaq Stock Market shall not have been ~~suspended on the NASDAQ Capital Market. The Shares~~ suspended, and minimum or maximum prices for trading shall not have been ~~listed and authorized~~ fixed, or maximum ranges for ~~trading on~~ prices for securities have been required, by either of said Exchanges or by order of the ~~NASDAQ Capital Market prior to the first Settlement Date~~Commission or any other governmental authority, and ~~satisfactory evidence of such actions~~ a banking moratorium shall not have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably requestdeclared by either Federal or Massachusetts authorities.

Appears in 2 contracts

Samples: Agency Agreement (HarborOne Bancorp, Inc.), Agency Agreement (HarborOne Bancorp, Inc.)

Conditions of Agent’s Obligations. The obligations of the ~~Agent~~ Agents hereunder are subject to (i) the accuracy of, as of the date hereof, each Bringdown Date, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein, (ii) the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) If ~~the~~ filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no stop order suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the ~~Agent's~~ Agents’ satisfaction. (b) The ~~Agent~~ Agents shall not have advised the Company that the Registration Statement, the Base Prospectus, the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which, in the ~~Agent's~~ Agents’ opinion, is material, or omits to state a fact which, in the ~~Agent's~~ Agents’ opinion, is material and is required to be stated therein or is necessary to make the statements therein (i) with respect to the Registration Statement, not misleading and (ii) with respect to the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading. (c) Except as set forth or contemplated in ~~the Base Prospectus,~~ the Prospectus and any Permitted Free Writing Prospectus, subsequent to the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding ~~options~~ options, preferred stock, notes or warrants that are disclosed in the Registration Statement or the Prospectus or the issuance of securities pursuant to the Company’s equity incentive plans or employee stock purchase plans described in the Registration Statement or the Prospectus), or any material change in the short-term or long-term debt, of the Company, or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described above, in either of the Agent's ’s judgment, makes it impractical or inadvisable to offer or deliver the Shares. (d) The Company shall have performed each of its obligations under Section ~~4(p~~3(q). (e) The Company shall have performed each of its obligations under Section ~~4(q~~3(r). (f) The Company shall have performed each of its obligations under Section ~~4(r~~3(s). (g) The Company shall have performed each of its obligations under Section 3(t). (h) The Company shall have performed each of its obligations under Section 3(u). (i) The Company shall have performed each of its obligations under Section 3(v). (j) The Base prospectus shall have been filed and cleared with FINRA and FINRA shall ~~not~~ have raised ~~any~~ no objection to the fairness and reasonableness of the underwriting terms and ~~arrangements under this Agreement~~arrangements. (hk) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (il) The Company shall have furnished to Agent and the Agent's ’s counsel such additional documents, certificates and evidence as they may have reasonably requested. (jm) Trading in the Common ~~Shares~~ Stock shall not have been suspended on the ~~NASDAQ Capital Market~~Exchange. The Shares shall have been listed and authorized for trading on the ~~NASDAQ Capital Market~~ Exchange prior to the first Settlement Date, and satisfactory evidence of such actions shall have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the ~~NASDAQ Capital Market~~Exchange. (n) On each Bringdown Date, Ellenoff Gxxxxxxx & Schole LLP, counsel for the Agent, shall not have reasonably determined that the Base Prospectus, the Prospectus, or any Permitted Free Writing Prospectus, as of such date, includes an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's ’s counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably request.

Appears in 1 contract

Samples: Equity Distribution Agreement (Guardion Health Sciences, Inc.)

Conditions of Agent’s Obligations. The obligations of each of the ~~Agent~~ Agents hereunder are subject to (i) the accuracy of, as of the date hereof, each Bringdown Date, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein, (ii) the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) If ~~the~~ filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no stop order suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the ~~Agent's satisfaction~~satisfaction of the Agents. (b) The ~~Agent~~ Agents shall not have advised the Company that the Registration Statement, the Base Prospectus, the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which, in the ~~Agent's opinion~~opinion of the Agents, is material, or omits to state a fact which, in the ~~Agent's opinion~~opinion of the Agents, is material and is required to be stated therein or is necessary to make the statements therein (i) with respect to the Registration Statement, not misleading and (ii) with respect to the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading. (c) Except as set forth or contemplated in the Base Prospectus, the Prospectus and any Permitted Free Writing Prospectus, subsequent to the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in the Registration Statement or the Prospectus or the issuance of securities pursuant to the Company’s equity incentive plans or employee stock purchase plans described in the Registration Statement or the Prospectus), or any material change in the short-term or long-term debt, of the Company, or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described above, in the ~~Agent's judgment~~judgment of the Agents, makes it impractical or inadvisable to offer or deliver the Shares. (d) The Company shall have performed each of its obligations under Section ~~4(p~~3(q). (e) The Company shall have performed each of its obligations under Section ~~4(q~~3(r). (f) The Company shall have performed each of its obligations under Section ~~4(r~~3(s). (g) FINRA shall not have raised any objection to the fairness and reasonableness of the terms and arrangements under this Agreement. (h) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished to Agent and the Agent's counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common Shares shall not have been suspended on the NASDAQ Capital Market. The Shares shall have been listed and authorized for trading on the NASDAQ Capital Market prior to the first Settlement Date, and satisfactory evidence of such actions shall have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably request.

Appears in 1 contract

Samples: Equity Distribution Agreement (Hall of Fame Resort & Entertainment Co)

Conditions of Agent’s Obligations. The obligations of the Agent hereunder are subject to (i) the accuracy of, as of the date hereof, each Bringdown Date, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein, (ii) the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) If ~~the~~ filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities ~~Act or the Rules and Regulations~~Act, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no stop order suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's ’s satisfaction. (b) The Agent shall not have advised the Company that the Registration Statement, the Base Prospectus, the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which, in the Agent's ’s opinion, is material, or omits to state a fact which, in the Agent's ’s opinion, is material and is required to be stated therein or is necessary to make the statements therein (i) with respect to the Registration Statement, not misleading and (ii) with respect to the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading. (c) Except as set forth or contemplated in ~~the Base Prospectus,~~ the Prospectus and any Permitted Free Writing Prospectus, subsequent to the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding ~~options~~ options, preferred stock, notes or warrants that are disclosed in the Registration Statement or the Prospectus or the issuance of securities pursuant to the Company’s equity incentive plans or employee stock purchase plans described in the Registration Statement or the Prospectus), or any material change in the short-term or long-term debt, of the Company, or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described above, in the Agent's ’s judgment, makes it impractical or inadvisable to offer or deliver the Shares. (d) The Company shall have performed each of its obligations under ~~Section 4(p~~Sections 3(q), 3(r), 3(s) and 3(z). (e) ~~The Company~~ FINRA shall have ~~performed each of its obligations under Section 4(q). (f) The Company shall have performed each of its obligations under Section 4(r). (g) FINRA shall not have~~ raised ~~any~~ no objection to the fairness and reasonableness of the underwriting terms and ~~arrangements under this Agreement~~arrangements. (hf) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (ig) The Company shall have furnished to the Agent and the Agent's ’s counsel such additional documents, certificates and evidence as they may have reasonably requested. (jh) Trading in the Common ~~Shares~~ Stock shall not have been suspended on the ~~NASDAQ Capital Market~~Exchange. The Shares shall have been listed and authorized for trading on the ~~NASDAQ Capital Market~~ Exchange prior to the first Settlement Date, and satisfactory evidence of such actions shall have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the ~~NASDAQ Capital Market~~Exchange. (i) On each Bringdown Date, Xxxxxxxx Xxxx LLP, counsel for the Agent, shall not have reasonably determined that the Base Prospectus, the Prospectus, or any Permitted Free Writing Prospectus, as of such date, includes an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Agent and the Agent's ’s counsel. The Company will furnish to the Agent with such conformed copies of such opinions, certificates, letters and other documents as the Agent shall reasonably request.

Appears in 1 contract

Samples: Equity Distribution Agreement (Olb Group, Inc.)

Conditions of Agent’s Obligations. The Company, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to ~~(i)~~ the accuracy ~~of,~~ of the representations and warranties of the Company and the Bank herein contained as of the date ~~hereof~~hereof and the Closing Time, ~~each Bringdown Date,~~ to the accuracy of the statements of officers and ~~each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements~~ directors of the Company ~~contained herein~~and the Bank made pursuant to the provisions hereof, ~~(ii)~~ to the performance by the Company and the Bank of ~~its~~ their obligations ~~hereunder~~ hereunder, and ~~(iii)~~ to the following ~~additional~~ further conditions: (a) If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no No stop order suspending the effectiveness of the Registration ~~Statement~~ Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any ~~part thereof, any Rule 462(b)~~ prospectus included in a post- effective amendment to the Registration Statement, shall have been issued or ~~any amendment thereof~~proceedings therefor initiated or, ~~nor suspending or preventing~~ to the ~~use~~ knowledge of the ~~Base Prospectus~~Company, threatened by the Commission, the ~~Prospectus~~ LOFI, the FDIC, or the FRB and no order suspending the sale of the Securities in any ~~Permitted Free Writing Prospectus~~ jurisdiction shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's satisfaction. (b) ~~The~~ At the Closing Time, the Agent shall ~~not~~ have ~~advised~~ received: (1) The favorable opinion, dated as of the Closing Time, of Xxxx Xxxxxx, PC, counsel for the Company and the Bank, in form and substance satisfactory to counsel for the Agent, as attached hereto as Exhibit A. (2) The favorable opinion, dated as of the Closing Time, of Silver, Xxxxxxxx, Xxxx & Xxxxxxx LLP, counsel for the Agent, as to such matters as the Agent may reasonably require. (3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Xxxx Xxxxxx, PC and Silver, Xxxxxxxx, Xxxx & Xxxxxxx LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration ~~Statement~~Statement (except for financial statements and schedules and other financial, pro forma, appraisal or statistical data included therein, as to which counsel need make no statement), at the ~~Base Prospectus~~time it became effective, ~~the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains~~ contained an untrue statement of a material fact ~~which, in the Agent's opinion, is material,~~ or ~~omits~~ omitted to state a material fact ~~which, in the Agent's opinion, is material and is~~ required to be stated therein or is necessary to make the statements therein not misleading or that the Prospectus (~~i) with respect~~ except for financial statements and schedules and other financial, pro forma, appraisal or statistical data included therein, as to which counsel need make no statement), at the time the Registration ~~Statement~~Statement became effective, ~~not misleading and (ii) with respect to~~ as of the ~~Base Prospectus,~~ date of the Prospectus or ~~any Permitted Free Writing Prospectus~~at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, Xxxx Xxxxxx, PC and Xxxxxx, Xxxxxxxx, Xxxx & Xxxxxxx LLP may rely as to matters of fact on certificates of officers and directors of the Company and the Bank and certificates of public officials. Silver, Xxxxxxxx, Xxxx & Xxxxxxx LLP may also rely on the opinion of Xxxx Xxxxxx, PC. (c) ~~Except as set forth or contemplated~~ At the Closing Time referred to in ~~the Base Prospectus~~Section 2 hereof, the ~~Prospectus~~ Company and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations, the applicable FRB Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company or the Bank by the LOFI, the FDIC, the FRB or any ~~Permitted Free Writing Prospectus~~other regulatory authority other than those which the LOFI, ~~subsequent~~ the FDIC, the FRB or any such other regulatory authority permit to be completed after the consummation of the Conversion. (d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in Registration Statement and the Prospectus), ~~or any material change in the short-term or long-term debt, of the Company, or~~ any Material Adverse ~~Effect or any development that would be reasonably likely to result in a Material Adverse Effect (~~Effect, whether or not arising in the ordinary course of business), and the Agent shall have received a certificate of the Chief Executive Officer of the Company and the Bank and the Chief Financial Officer of the Company and the Bank, dated as of Closing Time, to the effect that (i) there has been no such Material Adverse Effect, (ii) there shall have been no material transaction entered into by the Company or the Bank from the latest date as of which the financial condition of the Company or the Bank, as set forth in the Registration Statement, the Prospectus and the General Disclosure Package other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither the Company nor the Bank shall have received from the FRB, the LOFI or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which would materially and adversely affect the business, financial condition, results of operations or prospects of the Company or the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company and the Bank have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company or the Bank, threatened by the Commission, (vii) no order suspending the FRB’s approval of the Holding Company Application or the transactions contemplated thereby or the LOFI’s or the FDIC’s approval of the Conversion Applications or the transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company or the Bank, threatened by the FRB, the LOFI, or the FDIC and no person has sought to obtain regulatory or judicial review of the action of the LOFI or the FDIC in approving or not-objecting to the Plan in accordance with the Conversion Regulations nor has any person sought to obtain regulatory or judicial review of the action of the LOFI or the FDIC in approving the Conversion Applications or the FRB in approving the Holding Company Application, and (viii) no order suspending the Subscription and Community Offerings or the Syndicated Offering or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the LOFI or the FDIC. (e) At the Closing Time, the Agent shall have received a certificate of the Chief Executive Officer of the Company and the Bank and the Chief Financial Officer of the Company and the Bank, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement, the Prospectus and the General Disclosure Package; (ii) based on each of their knowledge, the Registration Statement, the Prospectus and the General Disclosure Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement, the Prospectus and the General Disclosure Package fairly present the financial condition and results of operations of the Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus. (f) As of the date hereof, the Agent shall have received from EisnerAmper a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the Company and the Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the Conversion Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act; (ii) it is their opinion that the financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and EisnerAmper set forth in detail in such letter, nothing has come to their attention which causes them to believe that, except as set forth in such letter, (A) the unaudited amounts of net interest income and net income set forth under “Selected Financial and Other Data of Fidelity Bank” or under “Recent Developments” in the Prospectus and the General Disclosure Package do not agree with the amounts set forth in unaudited financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, the Prospectus and the General Disclosure Package, (B) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the long- term or short-term debt of the Bank or any decrease in total assets, the allowance for credit losses, total deposits or equity of the Bank, in each case as compared with the amounts shown in the December 31, 2023 audited balance sheets or, (C) during the period from December 31, 2023 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for credit losses, income before income tax expense or net income of the Bank or increases in interest expense or the provision for credit losses, except in all instances for increases or decreases which the Registration Statement, the Prospectus and the General Disclosure Package disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information that are included in the Registration Statement, Prospectus and the General Disclosure Package and that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company and the Bank identified in such letter. (g) At the Closing Time, the Agent shall have received from EisnerAmper a letter dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time. (h) At the Closing Time, the Securities shall have been approved for listing on the Nasdaq Stock Market. (i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal. (j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent. (k) At any time prior to the Closing Time, (i) there shall not have occurred any material ~~loss by strike, fire, flood, earthquake, accident~~ adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other ~~calamity, whether~~ calamity or ~~not covered by insurance, incurred by the Company,~~ crisis the effect of which, in ~~any such case described above, in~~ the judgment of the Agent~~'s judgment~~, ~~makes~~ are so material and adverse as to make it ~~impractical~~ impracticable to market the Securities or ~~inadvisable~~ to ~~offer~~ enforce contracts, including subscriptions or ~~deliver~~ orders, for the Shares. (d) The Company shall have performed each of its obligations under Section 4(p). (e) The Company shall have performed each of its obligations under Section 4(q). (f) The Company shall have performed each of its obligations under Section 4(r). (g) FINRA shall not have raised any objection to the fairness and reasonableness sale of the ~~terms~~ Securities, and ~~arrangements under this Agreement.~~ (hii) ~~All filings with~~ trading generally on any of the ~~Commission required by Rule 424 under~~ NYSE MKT, the ~~Securities Act to have been filed by~~ New York Stock Exchange or the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished to Agent and the Agent's counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common Shares Nasdaq Stock Market shall not have been ~~suspended on the NASDAQ Capital Market. The Shares~~ suspended, and minimum or maximum prices for trading shall not have been ~~listed and authorized~~ fixed, or maximum ranges for ~~trading on~~ prices for securities have been required, by any of said exchanges or by order of the ~~NASDAQ Capital Market prior to the first Settlement Date~~Commission or any other governmental authority, and ~~satisfactory evidence of such actions~~ a banking moratorium shall not have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably requestdeclared by either Federal or Louisiana authorities.

Appears in 1 contract

Samples: Agency Agreement (FB Bancorp, Inc. /MD/)

Conditions of Agent’s Obligations. The obligations of the Agent hereunder are subject to (i) the accuracy of, as of the date hereof, each Bringdown Date, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein, (ii) the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no stop order suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's ’s satisfaction. (b) The Agent shall not have advised the Company that the Registration Statement, the Base Prospectus, the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which, in the Agent's ’s opinion, is material, or omits to state a fact which, in the Agent's ’s opinion, is material and is required to be stated therein or is necessary to make the statements therein (i) with respect to the Registration Statement, not misleading and (ii) with respect to the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading. (c) Except as set forth or contemplated in the Base Prospectus, the Prospectus and any Permitted Free Writing Prospectus, subsequent to the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in the Prospectus), or any material change in the short-term or long-term debt, of the Company, or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described above, in the Agent's ’s judgment, makes it impractical or inadvisable to offer or deliver the Shares. (d) The Company shall have performed each of its obligations under Section ~~4(p~~3(q). (e) The Company shall have performed each of its obligations under Section ~~4(q~~3(r). (f) The Company shall have performed each of its obligations under Section ~~4(r~~3(s). (g) FINRA shall not have raised any objection to the fairness and reasonableness of the terms and arrangements under this Agreement. (h) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished to Agent and the Agent's ’s counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common ~~Shares~~ Stock shall not have been suspended on the NASDAQ Capital Market. The Shares shall have been listed and authorized for trading on the NASDAQ Capital Market prior to the first Settlement Date, and satisfactory evidence of such actions shall have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's ’s counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably request.

Appears in 1 contract

Samples: Equity Distribution Agreement (Super League Gaming, Inc.)

Conditions of Agent’s Obligations. The obligations of the Agent hereunder are subject to (i) the accuracy of, as of the date hereof, each Bringdown Date, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein, (ii) the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no stop order suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's satisfaction. (b) The Agent shall not have advised the Company that the Registration Statement, the Base Prospectus, the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which, in the Agent's opinion, is material, or omits to state a fact which, in the Agent's opinion, is material and is required to be stated therein or is necessary to make the statements therein (i) with respect to the Registration Statement, not misleading and (ii) with respect to the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading. (c) Except as set forth or contemplated in the Base Prospectus, the Prospectus and any Permitted Free Writing Prospectus, subsequent to the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital ~~stock~~ stock, and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding ~~options~~ options, preferred stock, notes or warrants that are disclosed in the Registration Statement or the Prospectus), or any material change in the short-term or long-term debt, of the Company, or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described above, in the Agent's judgment, makes it impractical or inadvisable to offer or deliver the Shares. (d) The Company shall have performed each of its obligations under Section 4(p). (e) The Company shall have performed each of its obligations under Section 4(q). (f) The Company shall have performed each of its obligations under Section 4(r). (g) FINRA shall not have raised any objection to the fairness and reasonableness of the terms and arrangements under this Agreement. (h) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished to Agent and the Agent's counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common ~~Shares~~ Stock shall not have been suspended on the ~~NASDAQ Capital Market~~Exchange. The Shares shall have been listed and authorized for trading on the ~~NASDAQ Capital Market~~ Exchange prior to the first Settlement Date, and satisfactory evidence of such actions shall have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the ~~NASDAQ Capital Market~~Exchange. (k) On the date of the first Transaction Notice and thereafter on each Bringdown Date, Ellenoff Xxxxxxxx & Schole LLP, counsel for the Agent, shall not have reasonably determined that the Base Prospectus, the Prospectus, or any Permitted Free Writing Prospectus, as of such date, includes an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably request.

Appears in 1 contract

Samples: Equity Distribution Agreement (Diana Shipping Inc.)

Conditions of Agent’s Obligations. The obligations of the ~~Agent~~ Agents hereunder shall be subject, in each of their sole discretion, to the condition that all representations and warranties and other statements of the Company herein or in certificates of any officer of the Company delivered pursuant to the provisions hereof are ~~subject to (i) the accuracy of,~~ true and correct as of the time of the execution of this Agreement, the date ~~hereof,~~ of any executed Terms Agreement and as of each ~~Bringdown~~ Representation Date, Applicable Time and ~~each Time of Sale (in each case~~Settlement Date, ~~as if made at such date), and compliance with, all representations, warranties and agreements of~~ to the condition that the Company ~~contained herein, (ii) the performance by the Company~~ shall have performed all of its obligations hereunder theretofore to be performed, and ~~(iii)~~ the following additional conditions: (a) If The Prospectus Supplement shall have been filed with the ~~filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required~~ Commission pursuant to Rule 424(b) under the Securities Act on or prior to the ~~Rules~~ date hereof and ~~Regulations~~in accordance with Section 3(a) of this Agreement, any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act shall have been filed ~~the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus~~ with the Commission ~~in the manner and~~ within the applicable time ~~period so required (without reliance on~~ periods prescribed for such filings by Rule ~~424(b)(8) or Rule 164(b))~~433; the Registration Statement shall ~~remain effective;~~ have been filed by the Company with the Commission not earlier than three years prior to the date hereof and became effective upon filing in accordance with Rule 462(e) of the Securities Act Regulations, and no stop order suspending the effectiveness of the Registration Statement or any part ~~thereof, any Rule 462(b)~~ thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the form of the Registration ~~Statement,~~ Statement or any post-effective amendment ~~thereof, nor~~ thereto pursuant to Rule 401(g)(2) under the Securities Act shall have been received; no stop order suspending or preventing the use of the ~~Base Prospectus, the~~ Prospectus or any ~~Permitted~~ Issuer Free Writing Prospectus shall have been ~~issued; no proceedings for the issuance of such an order shall have been~~ initiated or ~~threatened~~threatened by the Commission; and ~~any request~~ all requests for additional information on the part of the Commission ~~for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise)~~ shall have been complied with to the ~~Agent's satisfaction~~reasonable satisfaction of the Agents and the Forward Purchasers. (b) ~~The Agent~~ On every date specified in Section 3(k) of this Agreement (including, without limitation, on every Request Date), Sidley Austin LLP, counsel for the Agents and the Forward Purchasers, shall ~~not~~ have ~~advised~~ furnished to the Agents and the Forward Purchasers such written opinion or opinions, dated as of such date, with respect to such matters as the Agents and the Forward Purchasers may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters. In said opinion, Sidley Austin LLP may rely as to all matters of Maryland law on the opinion of Vxxxxxx LLP. (c) On every date specified in Section 3(k) of this Agreement (including, without limitation, on every Request Date), Gxxxxxx Procter LLP, counsel for the Company, shall have furnished to the Agents and the Forward Purchasers a written opinion or opinions, dated as of such date, substantially in the forms set forth in Exhibits A-1-A and A-1-B attached hereto and in form and substance satisfactory to the Agents and the Forward Purchasers. (d) On every date specified in Section 3(k) of this Agreement (including, without limitation, on every Request Date), Jxxxx Xxxxxxxxxx, Esq., General Counsel for the Company, shall have furnished to the Agents and the Forward Purchasers a written opinion or opinions, dated as of such date, substantially in the form set forth in Exhibit A-2 attached hereto and in form and substance satisfactory to the Agents and the Forward Purchasers. (e) On every date specified in Section 3(k) of this Agreement (including, without limitation, on every Request Date), Seyfarth Sxxx LLP, counsel for the Company, shall have furnished to the Agents and the Forward Purchasers a written opinion or opinions, dated as of such date, substantially in the form set forth in Exhibit A-3 attached hereto and in form and substance satisfactory to the Agents and the Forward Purchasers. (f) On every date specified in Section 3(k) of this Agreement (including, without limitation, on every Request Date), Vxxxxxx LLP, Maryland counsel for the Company, shall have furnished to the Agents and the Forward Purchasers a written opinion or opinions, dated as of such date, substantially in the form set forth in Exhibit A-4 attached hereto and in form and substance satisfactory to the Agents and the Forward Purchasers. (g) At the dates specified in Section 3(l) of this Agreement (including, without limitation, on every Request Date), BDO USA LLP, the independent accountants of the Company ~~that~~ who have certified the financial statements of the Company and its subsidiaries included or incorporated by reference in the Registration Statement, the ~~Base Prospectus,~~ Disclosure Package and the Prospectus, ~~or any amendment or supplement thereto~~shall have furnished to the Agents and the Forward Purchasers a letter dated as of the date of delivery thereof and addressed to the Agents and the Forward Purchasers in form and substance reasonably satisfactory to the Agents and the Forward Purchasers and their counsel, ~~or any Permitted Free Writing Prospectus, contains an untrue statement~~ containing statements and information of ~~fact which,~~ the type ordinarily included in ~~the Agent's opinion, is material, or omits~~ accountants’ “comfort letters” to ~~state a fact which, in the Agent's opinion, is material~~ agents and ~~is required to be stated therein or is necessary to make the statements therein (i)~~ underwriters with respect to the financial statements of the Company and its subsidiaries included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus. (i) Upon commencement of the offering of Shares under this Agreement and on such other dates as reasonably requested by the Agents and the Forward Purchasers, the Company will furnish or cause to be furnished promptly to the Agents and the Forward Purchasers a placement notice in the form attached hereto as Annex II stating the maximum number of Shares and aggregate gross sales price to be sold by the Agent on such day (in any event not ~~misleading~~ in excess of the number or aggregate gross sales price available for issuance under the Prospectus and the currently effective Registration Statement, as authorized from time to time to be issued and sold under this Agreement or any Terms Agreement by the Company’s board of trustees, or a duly authorized committee thereof, or in a number in excess of the number of Shares and any Confirmation Shares approved for listing on the NYSE) the minimum price per Share at which such Shares may be sold and such other terms as contemplated by Annex II, or, in connection with any amendment, revision or modification of such minimum price or maximum Share number or amount, a new certificate with respect thereto and (ii) ~~with respect~~ on each date specified in Section 3(j) or other term (including, without limitation, on every Request Date), the Agents and the Forward Purchasers shall have received a certificate of executive officers of the Company, one of whom shall be the Chief Financial Officer, Chief Accounting Officer, Treasurer, or Executive Vice President in the area of capital markets and investments, dated as of the date thereof, to the ~~Base Prospectus,~~ effect that (A) there has been no Material Adverse Change since the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading. (c) Except as set forth or contemplated in the Base Prospectus, the Prospectus and any Permitted Free Writing Prospectus, subsequent to the respective dates date as of which information is given ~~therein~~in the Prospectus as then amended or supplemented or the Disclosure Package, (B) the representations and warranties in Section 1 of this Agreement are true and correct as of such date. (C) the Company ~~shall not have incurred any material liabilities or obligations, direct or contingent, or~~ has complied with all of the agreements entered into ~~any material transactions,~~ in connection with the transactions contemplated herein and satisfied all conditions on its part to be performed or ~~declared or paid any dividends or made any distribution of any kind with respect to its capital stock~~ satisfied and ~~there shall not have~~ (D) the condition set forth in Section 6(a) has been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in the Prospectus), or any material change in the short-term or long-term debt, of the Company, or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described above, in the Agent's judgment, makes it impractical or inadvisable to offer or deliver the Sharessatisfied. (di) Since the date of the latest audited financial statements then included or incorporated by reference in the Prospectus and the Disclosure Package, no Material Adverse Change shall have occurred. (j) The Company shall have ~~performed each~~ complied with the provisions of ~~its obligations under~~ Section ~~4(p)~~3(c) of this Agreement with respect to the timely furnishing of prospectuses. (ek) ~~The~~ On such dates as reasonably requested by the Agents and the Forward Purchasers, the Company shall have ~~performed each of its obligations under Section 4(q)~~conducted due diligence sessions, in form and substance satisfactory to the Agents and the Forward Purchasers. (f) The Company shall have performed each of its obligations under Section 4(r). (g) FINRA shall not have raised any objection to the fairness and reasonableness of the terms and arrangements under this Agreement. (hl) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by ~~the~~ each Applicable Time or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule ~~424~~424 (without reliance on Rule 424(b)(8)). (im) The ~~Company shall have furnished to Agent~~ Shares and the Agent's counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common Shares shall not have been suspended on the NASDAQ Capital Market. The any Confirmation Shares shall have ~~been listed and authorized~~ received approval for ~~trading~~ listing on the ~~NASDAQ Capital Market~~ NYSE prior to the first Settlement Date, . (n) Counsel for the Agents and ~~satisfactory evidence of such actions~~ the Forward Purchasers shall have been ~~provided~~ furnished with such documents and opinions as they may require in order to evidence the ~~Agent and its counsel, which may include oral confirmation from a representative~~ accuracy of any of the ~~NASDAQ Capital Market. All such opinions~~representations or warranties, ~~certificates~~or the fulfillment of any of the conditions, ~~letters~~ contained herein, in any Confirmation or in any applicable Terms Agreement; and ~~other documents will be~~ all proceedings taken by the Company in ~~compliance~~ connection with the ~~provisions hereof only if they are~~ issuance and sale of the Shares as contemplated herein or in any applicable Terms Agreement, the Confirmation Shares as contemplated in any Confirmation and in connection with the other transactions contemplated by this Agreement, any such Confirmation or any such Terms Agreement shall be reasonably satisfactory in form and substance to the Agents, the Forward Purchasers, as applicable, and their counsel. (o) Prior to any offers or sales of Shares by an Agent as forward seller, the Company shall have executed and delivered the completed Confirmation for such sales to the applicable Forward Purchaser and such Agent~~'s counsel. The Company will furnish Agent with~~ , in a form satisfactory to such ~~conformed copies of such opinions, certificates, letters~~ Forward Purchaser and ~~other documents as Agent shall reasonably request~~Agent.

Appears in 1 contract

Samples: Atm Equity Offering Sales Agreement (Acadia Realty Trust)

Conditions of Agent’s Obligations. The obligations of the Agent hereunder are subject to (i) the accuracy of, as of the date hereof, each Bringdown Date, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein, (ii) the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no stop order suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's ’s satisfaction. (b) The Agent shall not have advised the Company that the Registration Statement, the Base Prospectus, the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which, in the Agent's ’s opinion, is material, or omits to state a fact which, in the Agent's ’s opinion, is material and is required to be stated therein or is necessary to make the statements therein (i) with respect to the Registration Statement, not misleading and (ii) with respect to the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading. (c) Except as set forth or contemplated in ~~the Base Prospectus,~~ the Prospectus and any Permitted Free Writing Prospectus, subsequent to the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in the Registration Statement or the Prospectus or the issuance of securities pursuant to the Company’s equity incentive plans described in the Registration Statement or the Prospectus), or any material change in the short-term or long-term debt, of the Company, or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described above, in the Agent's ’s judgment, makes it impractical or inadvisable to offer or deliver the Shares. (d) The Company shall have performed each of its obligations under Section ~~4(p~~3(p). (e) The Company shall have performed each of its obligations under Section ~~4(q~~3(q). (f) The Company shall have performed each of its obligations under Section ~~4(r~~3(r). (g) FINRA shall not have raised any objection to the fairness and reasonableness of the terms and arrangements of the Agent’s compensation under this Agreement. (h) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished to the Agent and the Agent's ’s counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common ~~Shares~~ Stock shall not have been suspended on the ~~NASDAQ Capital Market~~Exchange. The Shares shall have been listed and authorized for trading on the ~~NASDAQ Capital Market~~ Exchange prior to the first Settlement Date, and satisfactory evidence of such actions shall have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the ~~NASDAQ Capital Market~~Exchange. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's ’s counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably request.

Appears in 1 contract

Samples: Equity Distribution Agreement (NuZee, Inc.)

Conditions of Agent’s Obligations. The obligations of the Agent hereunder are subject to (i) the accuracy of, as of the date hereof, each Bringdown Date, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein, (ii) the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) If ~~the~~ filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no stop order suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's satisfaction. (b) The Agent shall not have advised the Company that the Registration Statement, the Base Prospectus, the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which, in the Agent's opinion, is material, or omits to state a fact which, in the Agent's opinion, is material and is required to be stated therein or is necessary to make the statements therein (i) with respect to the Registration Statement, not misleading and (ii) with respect to the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading. (c) Except as set forth or contemplated in the ~~Base Prospectus, the~~ Prospectus and any Permitted Free Writing Prospectus, subsequent to the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding ~~options~~ options, preferred stock, notes or warrants that are disclosed in the Registration Statement or the Prospectus or the issuance of securities pursuant to the Company's equity incentive plans or employee stock purchase plans described in the Registration Statement or the Prospectus), or any material change in the short-term or long-term debt, of the Company, or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described above, in the Agent's judgment, makes it impractical or inadvisable to offer or deliver the Shares. (d) The Company shall have performed each of its obligations under Section ~~4(p~~3(q). (e) The Company shall have performed each of its obligations under Section ~~4(q~~3(r). (f) The Company shall have performed each of its obligations under Section ~~4(r~~3(s). (g) FINRA shall ~~not~~ have raised ~~any~~ no objection to the fairness and reasonableness of the underwriting terms and ~~arrangements under this Agreement~~arrangements. (h) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished to Agent and the Agent's counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common ~~Shares~~ Stock shall not have been suspended on the NASDAQ Capital Market. The Shares shall have been listed and authorized for trading on the NASDAQ Capital Market prior to the first Settlement Date, and satisfactory evidence of such actions shall have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably request.

Appears in 1 contract

Samples: Equity Distribution Agreement (Nexgel, Inc.)

Conditions of Agent’s Obligations. The Company, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to ~~(i)~~ the accuracy ~~of,~~ of the representations and warranties of the Company and the Bank herein contained as of the date ~~hereof~~hereof and the Closing Time, ~~each Bringdown Date,~~ to the accuracy of the statements of officers and ~~each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements~~ directors of the Company ~~contained herein~~and the Bank made pursuant to the provisions hereof, ~~(ii)~~ to the performance by the Company and the Bank of ~~its~~ their obligations ~~hereunder~~ hereunder, and ~~(iii)~~ to the following ~~additional~~ further conditions: (a) If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no No stop order suspending the effectiveness of the Registration ~~Statement~~ Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any ~~part thereof, any Rule 462(b)~~ prospectus included in a post- effective amendment to the Registration Statement, shall have been issued or ~~any amendment thereof~~proceedings therefor initiated or, ~~nor suspending or preventing~~ to the ~~use~~ knowledge of the ~~Base Prospectus~~Company, threatened by the Commission, the ~~Prospectus~~ OCC or the FRB and no order suspending the sale of the Securities in any ~~Permitted Free Writing Prospectus~~ jurisdiction shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's satisfaction. (b) ~~The~~ At the Closing Time, the Agent shall ~~not~~ have ~~advised~~ received: (1) The favorable opinion, dated as of the Closing Time, of Xxxx Xxxxxx, PC, counsel for the Company and the Bank, in form and substance satisfactory to counsel for the Agent, as attached hereto as Exhibit A. (2) The favorable opinion, dated as of the Closing Time, of Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP, counsel for the Agent, as to such matters as the Agent may reasonably require. (3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Xxxx Xxxxxx, PC and Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration ~~Statement~~Statement (except for financial statements and schedules and other financial, pro forma, appraisal or statistical data included therein, as to which counsel need make no statement), at the ~~Base Prospectus~~time it became effective, ~~the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains~~ contained an untrue statement of a material fact ~~which, in the Agent's opinion, is material,~~ or ~~omits~~ omitted to state a material fact ~~which, in the Agent's opinion, is material and is~~ required to be stated therein or is necessary to make the statements therein not misleading or that the Prospectus (~~i) with respect~~ except for financial statements and schedules and other financial, pro forma, appraisal or statistical data included therein, as to which counsel need make no statement), at the time the Registration ~~Statement~~Statement became effective, ~~not misleading and (ii) with respect to~~ as of the ~~Base Prospectus,~~ date of the Prospectus or ~~any Permitted Free Writing Prospectus~~at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, Xxxx Xxxxxx, PC and Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP may rely as to matters of fact on certificates of officers and directors of the Company and the Bank and certificates of public officials. Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP may also rely on the opinion of Xxxx Xxxxxx, PC. (c) ~~Except as set forth or contemplated~~ At the Closing Time referred to in ~~the Base Prospectus~~Section 2 hereof, the ~~Prospectus~~ Company and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable OCC Regulations, the applicable FRB Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company or the Bank by the OCC or any ~~Permitted Free Writing Prospectus~~other regulatory authority other than those which the OCC, ~~subsequent~~ the FRB or any such other regulatory authority permit to be completed after the consummation of the Conversion. (d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in Registration Statement and the Prospectus), ~~or any material change in the short-term or long-term debt, of the Company, or~~ any Material Adverse ~~Effect or any development that would be reasonably likely to result in a Material Adverse Effect (~~Effect, whether or not arising in the ordinary course of business), and the Agent shall have received a certificate of the Chief Executive Officer of the Company and the Bank and the Chief Financial Officer of the Company and the Bank, dated as of the Closing Time, to the effect that (i) there has been no such Material Adverse Effect, (ii) there shall have been no material transaction entered into by the Company or the Bank from the latest date as of which the financial condition of the Company or the Bank, as set forth in the Registration Statement, the Prospectus and the General Disclosure Package other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither the Company nor the Bank shall have received from the FRB, the OCC or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which would materially and adversely affect the business, financial condition, results of operations or prospects of the Company or the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company and the Bank have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company or the Bank, threatened by the Commission, (vii) no order suspending the FRB’s approval of the Holding Company Application or the transactions contemplated thereby or the OCC’s approval of the Conversion Application or the transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company or the Bank, threatened by the FRB or the OCC and no person has sought to obtain regulatory or judicial review of the action of the OCC in approving the Plan in accordance with the OCC Regulations nor has any person sought to obtain regulatory or judicial review of the action of the OCC in approving the Conversion Application or the FRB in approving the Holding Company Application, and (viii) no order suspending the Subscription and Community Offerings or the Syndicated Offering or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the OCC. (e) At the Closing Time, the Agent shall have received a certificate of the Chief Executive Officer of the Company and the Bank and the Chief Financial Officer of the Company and the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement, the Prospectus and the General Disclosure Package; (ii) based on each of their knowledge, the Registration Statement, the Prospectus and the General Disclosure Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement, the Prospectus and the General Disclosure Package fairly present the financial condition and results of operations of the Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus. (f) As of the date hereof, the Agent shall have received from Xxxxxx LLP a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the Company and the Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the OCC Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act; (ii) it is their opinion that the financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and Xxxxxx set forth in detail in such letter, nothing has come to their attention which causes them to believe that, except as set forth in such letter, (A) the unaudited amounts of net interest income and net income set forth under “Selected Financial and Other Data of Monroe Federal” or under “Recent Developments” in the Prospectus and the General Disclosure Package do not agree with the amounts set forth in unaudited financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, the Prospectus and the General Disclosure Package, (B) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the long- term or short-term debt of the Bank or any decrease in total assets, the allowance for credit losses, total deposits or equity of the Bank, in each case as compared with the amounts shown in the March 31, 2024 audited balance sheets or, (C) during the period from March 31, 2024 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for credit losses, income before income tax expense or net income of the Bank or increases in interest expense or the provision for credit losses, except in all instances for increases or decreases which the Registration Statement, the Prospectus and the General Disclosure Package disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information that are included in the Registration Statement, Prospectus and the General Disclosure Package and that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company and the Bank identified in such letter. (g) At the Closing Time, the Agent shall have received from Xxxxxx a letter dated as of the Closing Time, to the effect that it reaffirms the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time. (h) At the Closing Time, the Securities shall have been approved for quotation on the OTCQB Market operated by the OTC Markets Group. (i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal. (j) As of the date hereof and at the Closing Time, the Agent shall have received a certificate addressed to the Agent, and dated as of the respective dates of delivery, of the Chief Financial Officer of the Company and the Bank with respect to certain financial data contained in the General Disclosure Package and the Prospectus, providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Agent. (k) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent. (l) At any time prior to the Closing Time, (i) there shall not have occurred any material ~~loss by strike, fire, flood, earthquake, accident~~ adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other ~~calamity, whether~~ calamity or ~~not covered by insurance, incurred by the Company,~~ crisis the effect of which, in ~~any such case described above, in~~ the judgment of the Agent~~'s judgment~~, ~~makes~~ are so material and adverse as to make it ~~impractical~~ impracticable to market the Securities or ~~inadvisable~~ to ~~offer~~ enforce contracts, including subscriptions or ~~deliver~~ orders, for the Shares. (d) The Company shall have performed each of its obligations under Section 4(p). (e) The Company shall have performed each of its obligations under Section 4(q). (f) The Company shall have performed each of its obligations under Section 4(r). (g) FINRA shall not have raised any objection to the fairness and reasonableness sale of the ~~terms~~ Securities, and ~~arrangements under this Agreement.~~ (hii) ~~All filings with~~ trading generally on any national or regional securities exchange or system on which any class of securities of the Commission required by Rule 424 under the Securities Act to have been filed by the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company ~~shall have furnished to Agent and the Agent's counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common Shares~~ is listed or quoted shall not have been ~~suspended on the NASDAQ Capital Market. The Shares~~ suspended, and minimum or maximum prices for trading shall not have been ~~listed and authorized~~ fixed, or maximum ranges for ~~trading on~~ prices for securities have been required, by any of said exchanges or by order of the ~~NASDAQ Capital Market prior to the first Settlement Date~~Commission or any other governmental authority, and ~~satisfactory evidence of such actions~~ a banking moratorium shall not have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably requestdeclared by either Federal or Ohio authorities.

Appears in 1 contract

Samples: Agency Agreement (Monroe Federal Bancorp, Inc.)

Conditions of Agent’s Obligations. The Company, the Mid-Tier Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and the issuance of the Exchange Shares and all obligations of the Agent hereunder are subject to ~~(i)~~ the accuracy ofof the representations and warranties of the Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, ~~each Bringdown Date, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein, (ii)~~ to the performance by the ~~Company~~ Company, the Mid-Tier Company, the MHC and the Bank of ~~its~~ their obligations ~~hereunder~~ hereunder, and ~~(iii)~~ to the following ~~additional~~ further conditions: (a) If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no No stop order suspending the effectiveness of the Registration ~~Statement~~ Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any ~~part thereof, any Rule 462(b)~~ prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or ~~any amendment thereof~~proceedings therefor initiated or, ~~nor suspending or preventing~~ to the ~~use~~ knowledge of the ~~Base Prospectus~~Company, threatened by the ~~Prospectus~~ Commission or the FRB and no order suspending the sale of the Securities in any ~~Permitted Free Writing Prospectus~~ jurisdiction shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's satisfaction. (b) ~~The~~ At the Closing Time, the Agent shall ~~not~~ have ~~advised~~ received: (1) The favorable opinion, dated as of the ~~Company~~ Closing Time, of Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP, counsel for the Company, the Mid-Tier Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, as attached hereto as Exhibit A. (2) The favorable opinion, dated as of the Closing Time, of Silver, Xxxxxxxx, Xxxx & Xxxxxxx LLP, counsel for the Agent, as to such matters as the Agent may reasonably require. (3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP and Silver, Xxxxxxxx, Taff & Xxxxxxx LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration ~~Statement~~Statement (except for financial statements and schedules and other financial, pro forma or statistical data included therein, as to which counsel need make no statement), at the ~~Base Prospectus~~time it became effective, ~~the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains~~ contained an untrue statement of a material fact ~~which, in the Agent's opinion, is material,~~ or ~~omits~~ omitted to state a material fact ~~which, in the Agent's opinion, is material and is~~ required to be stated therein or is necessary to make the statements therein not misleading or that the Prospectus (~~i) with respect~~ except for financial statements and schedules and other financial, pro forma or statistical data included therein, as to which counsel need make no statement), at the time the Registration ~~Statement~~Statement became effective, ~~not misleading and (ii) with respect to~~ as of the ~~Base Prospectus,~~ date of the Prospectus or ~~any Permitted Free Writing Prospectus~~at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP and Silver, Xxxxxxxx, Taff & Xxxxxxx LLP may rely as to matters of fact on certificates of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank and certificates of public officials. Silver, Xxxxxxxx, Taff & Xxxxxxx LLP may also rely on the opinion of Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP. (c) ~~Except as set forth or contemplated~~ At the Closing Time referred to in ~~the Base Prospectus~~Section 2 hereof, the ~~Prospectus~~ Company, the Mid-Tier Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable FRB Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company, the Mid-Tier Company, the MHC or the Bank by the FRB or any ~~Permitted Free Writing Prospectus~~other regulatory authority other than those which the FRB or any such other regulatory authority permits to be completed after the Conversion. (d) At the Closing Time, ~~subsequent to~~ there shall not have been, since the date hereof or since the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in Registration Statement and the Prospectus), ~~or any material change in the short-term or long-term debt, of the Company, or~~ any Material Adverse ~~Effect or any development that would be reasonably likely to result in a Material Adverse Effect (~~Effect, whether or not arising in the ordinary course of business), and the Agent shall have received a certificate of the Chief Executive Officer of the Company, the Mid-Tier Company, the MHC and the Bank and the Chief Financial Officer of the Company, the Mid-Tier Company, the MHC and the Bank, dated as of Closing Time, to the effect that (i) there has been no such Material Adverse Effect, (ii) there shall have been no material transaction entered into by the Company, the Mid-Tier Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the Mid-Tier Company, the MHC or the Bank, as set forth in the Registration Statement, the Prospectus and the General Disclosure Package other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice (iii) neither the Company, the Mid-Tier Company, the MHC nor the Bank shall have received from the FRB, the OCC or the FDIC any order or direction (oral or written) to make any material ~~loss~~ change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the Mid-Tier Company, the MHC or the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the Mid-Tier Company, the MHC and the Bank have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company, the Mid-Tier Company, the MHC or the Bank, threatened by ~~strike~~the Commission, ~~fire~~(vii) no order suspending the FRB’s approval of the Conversion Application, ~~flood~~the Holding Company Application or the transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, ~~earthquake~~to the knowledge of the Company, ~~accident~~ the Mid-Tier Company, the MHC or the Bank, threatened by the FRB and no person has sought to obtain regulatory or judicial review of the action of the FRB in approving the Plan in accordance with the FRB Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Conversion Application or the Holding Company Application, and (viii) no order suspending the Subscription and Community Offering or the Syndicated Offering or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the FRB. (e) At the Closing Time, the Agent shall have received a certificate of the Chief Executive Officer of the Mid-Tier Company, the Company and the Bank and the Chief Financial Officer of the Mid-Tier Company, the Company and the Bank, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement, the Prospectus and the General Disclosure Package; (ii) based on each of their knowledge, the Registration Statement, the Prospectus and the General Disclosure Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; (iii) based on each of their knowledge, the financial statements and other ~~calamity~~financial information included in the Registration Statement, the Prospectus and the General Disclosure Package fairly present the financial condition and results of operations of the Mid-Tier Company and the Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus; (iv) they are responsible for establishing and maintaining disclosure controls and procedures; (v) they have designed such disclosure controls and procedures to ensure that material information relating to the Company’s, the Mid-Tier Company and the Bank is made known to them; (vi) they have evaluated the effectiveness of their disclosure controls and procedures; and (vii) they have disclosed to RSM US LLP and the audit committee (A) all significant deficiencies in the design or operation of disclosure controls and procedures which are reasonably likely to adversely affect the Mid-Tier Company’s and the Bank’s ability to record, process, summarize, and report financial data, and have identified for the Company’s, the Mid-Tier Company’s and the Bank’s independent registered public accounting firm any material weaknesses in disclosure controls and procedures and (B) any fraud, whether or not ~~covered by insurance~~material, ~~incurred by~~ that involves management or other employees who have a significant role in the Company’s, the Mid-Tier Company’s and the Bank’s disclosure controls and procedures. (f) As of the date hereof, the Agent shall have received from RSM US LLP a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the Company, the Mid-Tier Company, the MHC and the Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the FRB Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and RSM US LLP set forth in detail in such letters, nothing has come to their attention which causes them to believe that, except as set forth in such letters, (A) the unaudited consolidated financial statements and supporting schedules of the Mid-Tier Company included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations and the FRB Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement, the Prospectus and the General Disclosure Package, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” or under “Recent Developments” in the Prospectus and the General Disclosure Package do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited consolidated financial statements included in the Registration Statement, the Prospectus and the General Disclosure Package, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the Mid-Tier Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or stockholders’ equity of the Mid-Tier Company, in each case as compared with the amounts shown in the March 31, 2016 unaudited consolidated statements of financial condition presented under the “Recent Developments” caption in the Registration Statement or, (D) during the period from March 31, 2016 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Company’s Mid-Tier Company, except in all instances for increases or decreases which the Registration Statement, the Prospectus and the General Disclosure Package disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information that are included in the Registration Statement, Prospectus and the General Disclosure Package and that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the Company’s Mid-Tier Company, the MHC and the Bank identified in such letter. (g) The “lock-up” agreements, each substantially in the form of Exhibit B hereto, between the Agent and the persons set forth on Exhibit C hereto, relating to sales and certain other dispositions of shares of Common Stock, Mid-Tier Company Common Stock or certain other securities, shall be delivered to the Agent on or before the date hereof and shall be in full force and effect on the Closing Time. (h) At the Closing Time, the Agent shall have received from RSM US LLP a letter dated as of the Closing Time, to the effect that they reaffirm the statements made in the letters furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time. (i) At the Closing Time, all notices required to be filed to permit the Securities and the Exchange Shares to be listed on the Nasdaq Capital Market shall have been timely filed. (j) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal. (k) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Exchange Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent. (l) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in ~~any such case described above, in~~ the judgment of the Agent~~'s judgment~~, ~~makes~~ are so material and adverse as to make it ~~impractical~~ impracticable to market the Securities or ~~inadvisable~~ to ~~offer~~ enforce contracts, including subscriptions or ~~deliver~~ orders, for the Shares. (d) The Company shall have performed each of its obligations under Section 4(p). (e) The Company shall have performed each of its obligations under Section 4(q). (f) The Company shall have performed each of its obligations under Section 4(r). (g) FINRA shall not have raised any objection to the fairness and reasonableness sale of the ~~terms~~ Securities, and ~~arrangements under this Agreement.~~ (hii) ~~All filings with~~ trading generally on any of the ~~Commission required by Rule 424 under~~ NYSE MKT, the ~~Securities Act to have been filed by~~ New York Stock Exchange or the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished to Agent and the Agent's counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common Shares Nasdaq shall not have been ~~suspended on the NASDAQ Capital Market. The Shares~~ suspended, and minimum or maximum prices for trading shall not have been ~~listed and authorized~~ fixed, or maximum ranges for ~~trading on~~ prices for securities have been required, by any of said Exchanges or by order of the ~~NASDAQ Capital Market prior to the first Settlement Date~~Commission or any other governmental authority, and ~~satisfactory evidence of such actions~~ a banking moratorium shall not have been ~~provided to the Agent and its counsel~~declared by either Federal, which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably requestMaryland or New York authorities.

Appears in 1 contract

Samples: Agency Agreement (Ottawa Bancorp Inc)

Conditions of Agent’s Obligations. The Company, the Mid-Tier Company, the Bank, the MHC and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to ~~(i)~~ the accuracy ofof the representations and warranties of the Company, the Mid-Tier Company, the Bank and the MHC herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Mid-Tier Company, the Bank and the MHC made pursuant to the provisions hereof, ~~each Bringdown Date, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein, (ii)~~ to the performance by the ~~Company~~ Company, the Mid-Tier Company, the Bank and the MHC of ~~its~~ their obligations ~~hereunder~~ hereunder, and ~~(iii)~~ to the following ~~additional~~ further conditions: (a) If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no No stop order suspending the effectiveness of the Registration ~~Statement~~ Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any ~~part thereof, any Rule 462(b)~~ prospectus included in a post- effective amendment to the Registration Statement, shall have been issued or ~~any amendment thereof~~proceedings therefor initiated or, ~~nor suspending or preventing~~ to the ~~use~~ knowledge of the ~~Base Prospectus~~Company, threatened by the Commission, the ~~Prospectus~~ Department or the FRB and no order suspending the sale of the Securities in any ~~Permitted Free Writing Prospectus~~ jurisdiction shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's satisfaction. (b) ~~The~~ At the Closing Time, the Agent shall ~~not~~ have ~~advised~~ received: (1) The favorable opinion, dated as of the ~~Company~~ Closing Time, of Lxxx Xxxxxx, PC, counsel for the Company, the Mid-Tier Company, the Bank and the MHC, in form and substance satisfactory to counsel for the Agent, as attached hereto as Exhibit A. (2) The favorable opinion, dated as of the Closing Time, of Silver, Fxxxxxxx, Txxx & Txxxxxx LLP, counsel for the Agent, as to such matters as the Agent may reasonably require. (3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Lxxx Xxxxxx, PC and Silver, Fxxxxxxx, Txxx & Txxxxxx LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration ~~Statement~~Statement (except for financial statements and schedules and other financial, pro forma, appraisal or statistical data included therein, as to which counsel need make no statement), at the ~~Base Prospectus~~time it became effective, ~~the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains~~ contained an untrue statement of a material fact ~~which, in the Agent's opinion, is material,~~ or ~~omits~~ omitted to state a material fact ~~which, in the Agent's opinion, is material and is~~ required to be stated therein or is necessary to make the statements therein not misleading or that the Prospectus (~~i) with respect~~ except for financial statements and schedules and other financial, pro forma, appraisal or statistical data included therein, as to which counsel need make no statement), at the time the Registration ~~Statement~~Statement became effective, ~~not misleading and (ii) with respect to~~ as of the ~~Base Prospectus,~~ date of the Prospectus or ~~any Permitted Free Writing Prospectus~~at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, Lxxx Xxxxxx, PC and Sxxxxx, Fxxxxxxx, Txxx & Txxxxxx LLP may rely as to matters of fact on certificates of officers and directors of the Company and the Bank and certificates of public officials. Silver, Fxxxxxxx, Txxx & Txxxxxx LLP may also rely on the opinion of Lxxx Xxxxxx, PC. (c) ~~Except as set forth or contemplated~~ At the Closing Time referred to in ~~the Base Prospectus~~Section 2 hereof, the ~~Prospectus~~ Company, the Mid-Tier Company, the Bank and the MHC shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations, the applicable FRB Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company, the Mid-Tier Company, the Bank or the MHC by the Department, the FRB or any ~~Permitted Free Writing Prospectus~~other regulatory authority other than those which the Department, ~~subsequent~~ the FRB or any such other regulatory authority permit to be completed after the consummation of the Conversion. (d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in Registration Statement and the Prospectus), ~~or any material change in the short-term or long-term debt, of the Company, or~~ any Material Adverse ~~Effect or any development that would be reasonably likely to result in a Material Adverse Effect (~~Effect, whether or not arising in the ordinary course of business), ~~or any~~ and the Agent shall have received a certificate of the Chief Executive Officer of the Company, the Mid-Tier Company, the Bank and the MHC and the Treasurer of the Company, the Mid-Tier Company, the Bank and the MHC, dated as of Closing Time, to the effect that (i) there has been no such Material Adverse Effect, (ii) there shall have been no material ~~loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred~~ transaction entered into by the Company, the Mid-Tier Company, the Bank or the MHC from the latest date as of which the financial condition of the Company, the Mid-Tier Company, the Bank or the MHC, as set forth in the Registration Statement, the Prospectus and the General Disclosure Package other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) none of the Company, the Mid-Tier Company, the Bank or the MHC shall have received from the FRB, the Department or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which would materially and adversely affect the business, financial condition, results of operations or prospects of the Company, the Mid-Tier Company, the Bank or the MHC, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the Mid-Tier Company, the Bank and the MHC have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company, the Mid-Tier Company, the Bank and the MHC, threatened by the Commission, (vii) no order suspending the FRB’s approval of the Holding Company Application or the transactions contemplated thereby or the Department’s or the FRB’s approval of the Conversion Applications, as applicable, or the transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company, the Mid-Tier Company, the Bank or the MHC, threatened by the FRB or the Department and no person has sought to obtain regulatory or judicial review of the action of the Department or the FRB in approving the Plan in accordance with the Conversion Regulations nor has any person sought to obtain regulatory or judicial review of the action of the Department or the FRB in approving the Conversion Applications, as applicable, or the FRB in approving the Holding Company Application, and (viii) no order suspending the Subscription and Community Offerings or the Syndicated Offering or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the Department or the FRB. (e) At the Closing Time, the Agent shall have received a certificate of the Chief Executive Officer of the Company, the Mid-Tier Company, the Bank and the MHC and the Treasurer of the Company, the Mid-Tier Company, the Bank and the MHC, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement, the Prospectus and the General Disclosure Package; (ii) based on each of their knowledge, the Registration Statement, the Prospectus and the General Disclosure Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the consolidated financial statements and other financial information included in the Registration Statement, the Prospectus and the General Disclosure Package fairly present the financial condition and results of operations of the MHC, the Mid-Tier Company and the Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus. (f) As of the date hereof, the Agent shall have received from Pxxxxx Mxxxx a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the Company, the Mid-Tier Company, the Bank and the MHC within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the Conversion Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Sxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinion therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and Pxxxxx Mxxxx set forth in detail in such letter, nothing has come to their attention which causes them to believe that, except as set forth in such letter, (A) the unaudited amounts of net interest income and net loss set forth under “Selected Financial and Other Data” in the Prospectus and the General Disclosure Package do not agree with the amounts set forth in unaudited financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited consolidated financial statements included in the Registration Statement, the Prospectus and the General Disclosure Package, (B) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the long-term or short-term debt of the Mid-Tier Company, the Bank or the MHC or any decrease in total assets, the allowance for credit losses, total deposits or equity of the Mid-Tier Company, the Bank or the MHC, in each case as compared with the amounts shown in the March 31, 2024 unaudited consolidated balance sheet or, (C) during the period from March 31, 2024 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for credit losses, income (loss) before income tax expense (benefit) or net income (loss) of the MHC or increases in interest expense or the provision for credit losses, except in all instances for increases or decreases which the Registration Statement, the Prospectus and the General Disclosure Package disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information that are included in the Registration Statement, Prospectus and the General Disclosure Package and that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the Mid-Tier Company, the Bank and the MHC identified in such letter. (g) At the Closing Time, the Agent shall have received from Pxxxxx Mxxxx a letter dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time. (h) At the Closing Time, the Securities shall have been approved for quotation on the OTCQB. (i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal. (j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent. (k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in ~~any such case described above, in~~ the judgment of the Agent~~'s judgment~~, ~~makes~~ are so material and adverse as to make it ~~impractical~~ impracticable to market the Securities or ~~inadvisable~~ to ~~offer~~ enforce contracts, including subscriptions or ~~deliver~~ orders, for the Shares. (d) The Company shall have performed each of its obligations under Section 4(p). (e) The Company shall have performed each of its obligations under Section 4(q). (f) The Company shall have performed each of its obligations under Section 4(r). (g) FINRA shall not have raised any objection to the fairness and reasonableness sale of the ~~terms~~ Securities, and ~~arrangements under this Agreement.~~ (hii) ~~All filings with~~ trading generally on any of the ~~Commission required by Rule 424 under~~ NYSE MKT, the ~~Securities Act to have been filed by~~ New York Stock Exchange or the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished to Agent and the Agent's counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common Shares Nasdaq Stock Market shall not have been ~~suspended on the NASDAQ Capital Market. The Shares~~ suspended, and minimum or maximum prices for trading shall not have been ~~listed and authorized~~ fixed, or maximum ranges for ~~trading on~~ prices for securities have been required, by any of said exchanges or by order of the ~~NASDAQ Capital Market prior to the first Settlement Date~~Commission or any other governmental authority, and ~~satisfactory evidence of such actions~~ a banking moratorium shall not have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably requestdeclared by either Federal or Wisconsin authorities.

Appears in 1 contract

Samples: Agency Agreement (EWSB Bancorp, Inc. /MD/)

Conditions of Agent’s Obligations. The Company, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to ~~(i)~~ the accuracy ~~of,~~ of the representations and warranties of the Company and the Bank herein contained as of the date ~~hereof~~hereof and the Closing Time, ~~each Bringdown Date,~~ to the accuracy of the statements of officers and ~~each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements~~ directors of the Company ~~contained herein~~and the Bank made pursuant to the provisions hereof, ~~(ii)~~ to the performance by the Company and the Bank of ~~its~~ their obligations ~~hereunder~~ hereunder, and ~~(iii)~~ to the following ~~additional~~ further conditions: (a) If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no No stop order suspending the effectiveness of the Registration ~~Statement~~ Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any ~~part thereof, any Rule 462(b)~~ prospectus included in a post- effective amendment to the Registration Statement, shall have been issued or ~~any amendment thereof~~proceedings therefor initiated or, ~~nor suspending or preventing~~ to the ~~use~~ knowledge of the ~~Base Prospectus~~Company, threatened by the Commission, the ~~Prospectus~~ OCC or the FRB and no order suspending the sale of the Securities in any ~~Permitted Free Writing Prospectus~~ jurisdiction shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's satisfaction. (b) ~~The~~ At the Closing Time, the Agent shall ~~not~~ have ~~advised~~ received: (1) The favorable opinion, dated as of the Closing Time, of Lxxx Xxxxxx, PC, counsel for the Company and the Bank, in form and substance satisfactory to counsel for the Agent, as attached hereto as Exhibit A. (2) The favorable opinion, dated as of the Closing Time, of Nxxxxx Xxxxxxx Xxxxx & Sxxxxxxxxxx LLP, counsel for the Agent, as to such matters as the Agent may reasonably require. (3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Lxxx Xxxxxx, PC and Nxxxxx Xxxxxxx Xxxxx & Sxxxxxxxxxx LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration ~~Statement~~Statement (except for financial statements and schedules and other financial, pro forma, appraisal or statistical data included therein, as to which counsel need make no statement), at the ~~Base Prospectus~~time it became effective, ~~the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains~~ contained an untrue statement of a material fact ~~which, in the Agent's opinion, is material,~~ or ~~omits~~ omitted to state a material fact ~~which, in the Agent's opinion, is material and is~~ required to be stated therein or is necessary to make the statements therein not misleading or that the Prospectus (~~i) with respect~~ except for financial statements and schedules and other financial, pro forma, appraisal or statistical data included therein, as to which counsel need make no statement), at the time the Registration ~~Statement~~Statement became effective, ~~not misleading and (ii) with respect to~~ as of the ~~Base Prospectus,~~ date of the Prospectus or ~~any Permitted Free Writing Prospectus~~at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, Lxxx Xxxxxx, PC and Nxxxxx Xxxxxxx Xxxxx & Sxxxxxxxxxx LLP may rely as to matters of fact on certificates of officers and directors of the Company and the Bank and certificates of public officials. Nxxxxx Xxxxxxx Xxxxx & Sxxxxxxxxxx LLP may also rely on the opinion of Lxxx Xxxxxx, PC. (c) ~~Except as set forth or contemplated~~ At the Closing Time referred to in ~~the Base Prospectus~~Section 2 hereof, the ~~Prospectus~~ Company and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable OCC Regulations, the applicable FRB Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company or the Bank by the OCC or any ~~Permitted Free Writing Prospectus~~other regulatory authority other than those which the OCC, ~~subsequent~~ the FRB or any such other regulatory authority permit to be completed after the consummation of the Conversion. (d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in Registration Statement and the Prospectus), ~~or any material change in the short-term or long-term debt, of the Company, or~~ any Material Adverse ~~Effect or any development that would be reasonably likely to result in a Material Adverse Effect (~~Effect, whether or not arising in the ordinary course of business), and the Agent shall have received a certificate of the Chief Executive Officer of the Company and the Bank and the Chief Financial Officer of the Company and the Bank, dated as of the Closing Time, to the effect that (i) there has been no such Material Adverse Effect, (ii) there shall have been no material transaction entered into by the Company or the Bank from the latest date as of which the financial condition of the Company or the Bank, as set forth in the Registration Statement, the Prospectus and the General Disclosure Package other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither the Company nor the Bank shall have received from the FRB, the OCC or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which would materially and adversely affect the business, financial condition, results of operations or prospects of the Company or the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company and the Bank have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company or the Bank, threatened by the Commission, (vii) no order suspending the FRB’s approval of the Holding Company Application or the transactions contemplated thereby or the OCC’s approval of the Conversion Application or the transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company or the Bank, threatened by the FRB or the OCC and no person has sought to obtain regulatory or judicial review of the action of the OCC in approving the Plan in accordance with the OCC Regulations nor has any person sought to obtain regulatory or judicial review of the action of the OCC in approving the Conversion Application or the FRB in approving the Holding Company Application, and (viii) no order suspending the Subscription and Community Offerings or the Syndicated Offering or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the OCC. (e) At the Closing Time, the Agent shall have received a certificate of the Chief Executive Officer of the Company and the Bank and the Chief Financial Officer of the Company and the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement, the Prospectus and the General Disclosure Package; (ii) based on each of their knowledge, the Registration Statement, the Prospectus and the General Disclosure Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement, the Prospectus and the General Disclosure Package fairly present the financial condition and results of operations of the Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus. (f) As of the date hereof, the Agent shall have received from Exxxxxx Xxxxx a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the Company and the Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the OCC Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Sxxxxxxx-Xxxxx Act; (ii) it is their opinion that the financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and Exxxxxx Xxxxx set forth in detail in such letter, nothing has come to their attention which causes them to believe that, except as set forth in such letter, (A) the unaudited amounts of net interest income and net income set forth under “Selected Financial and Other Data of Fifth District” or under “Recent Developments” in the Prospectus and the General Disclosure Package do not agree with the amounts set forth in unaudited financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, the Prospectus and the General Disclosure Package, (B) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the long- term or short-term debt of the Bank or any decrease in total assets, the allowance for credit losses, total deposits or equity of the Bank, in each case as compared with the amounts shown in the December 31, 2023 audited balance sheets or, (C) during the period from December 31, 2023 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for credit losses, income before income tax expense or net income of the Bank or increases in interest expense or the provision for credit losses, except in all instances for increases or decreases which the Registration Statement, the Prospectus and the General Disclosure Package disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information that are included in the Registration Statement, Prospectus and the General Disclosure Package and that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company and the Bank identified in such letter. (g) At the Closing Time, the Agent shall have received from Exxxxxx Xxxxx a letter dated as of the Closing Time, to the effect that it reaffirms the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time. (h) At the Closing Time, the Securities shall have been approved for listing on the Nasdaq Stock Market. (i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal. (j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent. (k) At any time prior to the Closing Time, (i) there shall not have occurred any material ~~loss by strike, fire, flood, earthquake, accident~~ adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other ~~calamity, whether~~ calamity or ~~not covered by insurance, incurred by the Company,~~ crisis the effect of which, in ~~any such case described above, in~~ the judgment of the Agent~~'s judgment~~, ~~makes~~ are so material and adverse as to make it ~~impractical~~ impracticable to market the Securities or ~~inadvisable~~ to ~~offer~~ enforce contracts, including subscriptions or ~~deliver~~ orders, for the Shares. (d) The Company shall have performed each of its obligations under Section 4(p). (e) The Company shall have performed each of its obligations under Section 4(q). (f) The Company shall have performed each of its obligations under Section 4(r). (g) FINRA shall not have raised any objection to the fairness and reasonableness sale of the ~~terms~~ Securities, and ~~arrangements under this Agreement.~~ (hii) ~~All filings with~~ trading generally on any of the ~~Commission required by Rule 424 under~~ NYSE MKT, the ~~Securities Act to have been filed by~~ New York Stock Exchange or the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished to Agent and the Agent's counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common Shares Nasdaq shall not have been ~~suspended on the NASDAQ Capital Market. The Shares~~ suspended, and minimum or maximum prices for trading shall not have been ~~listed and authorized~~ fixed, or maximum ranges for ~~trading on~~ prices for securities have been required, by any of said exchanges or by order of the ~~NASDAQ Capital Market prior to the first Settlement Date~~Commission or any other governmental authority, and ~~satisfactory evidence of such actions~~ a banking moratorium shall not have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably requestdeclared by either Federal or Louisiana authorities.

Appears in 1 contract

Samples: Agency Agreement (Fifth District Bancorp, Inc.)

Conditions of Agent’s Obligations. The obligations of the Agent hereunder and under any Terms Agreement are subject to (i) the ~~accuracy of~~accuracy, as of the ~~date hereof~~Effective Time, each Bringdown Date, ~~and~~ each Time of ~~Sale~~ Sale, each execution and delivery by the Company of a Terms Agreement (in each case, as if made at such date), ) of and compliance ~~with,~~ with all representations, warranties and agreements of the Company contained herein, (ii) the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) If ~~the~~ filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no stop order suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's satisfaction. (b) The Agent shall not have advised the Company that the Registration Statement, the Base Prospectus, the Prospectus, or any amendment thereof or supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which, in the Agent's ’s opinion, is material, or omits to state a fact which, in the Agent's ’s opinion, is material and is required to be stated therein or is necessary to make the statements therein (i) with respect to the Registration Statement, not misleading and (ii) with respect to the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading. (c) Except as ~~set forth or~~ contemplated in the Base Prospectus, the ~~Prospectus~~ Prospectus, and any Permitted Free Writing Prospectus, subsequent to the respective dates as of which information is given ~~therein~~in the Base Prospectus, neither the Company nor any of its subsidiaries shall ~~not~~ have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital ~~stock~~ stock; and there shall not have been any change in the capital ~~stock~~stock (other than a change in the number of outstanding Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants), or any material change in the short‑term or long‑term debt of the Company, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock ~~(other than as a result~~ of the ~~exercise of any currently outstanding options or warrants that are disclosed in the Prospectus),~~ Company or any ~~material change in the short-term or long-term debt,~~ of ~~the Company~~its subsidiaries, or any Material Adverse ~~Effect~~ Change or any development ~~that would be reasonably likely to result in~~ involving a prospective Material Adverse ~~Effect~~ Change (whether or not arising in the ordinary course of business), or any ~~material~~ loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred by the ~~Company~~Company or any subsidiary, the effect of which, in any such case described above, in the Agent's ’s judgment, makes it impractical or inadvisable to offer or deliver the ~~Shares~~Shares on the terms and in the manner contemplated in the Base Prospectus, the Prospectus, and any Permitted Free Writing Prospectus. (d) ~~The Company~~ On or after the Time of Sale (i) no downgrading shall have ~~performed each~~ occurred in the rating accorded any of the Company’s securities by any “nationally recognized statistical organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ~~obligations under Section 4(p).~~rating of any of the Company’s securities or; (e) The Company shall have performed each of its obligations under Section ~~4(q~~3(p) – 3(q). (f) ~~The Company~~ On each Bringdown Date to which a waiver does not apply, there shall have ~~performed each~~ been furnished to the Agent such opinion or opinions from Xxxxxx & Xxxxxxx LLP, counsel for the Agent, dated as of ~~its obligations under Section 4(r)~~such Bringdown Date and addressed to Agent, with respect to the formation of the Company, the validity of the Shares, the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus, as applicable, and other related matters as Agent reasonably may request, and such counsel shall have received such papers and information as they request to enable them to pass upon such matters. (g) ~~FINRA~~ The Financial Industry Regulatory Authority, Inc. shall ~~not~~ have raised ~~any~~ no objection to the fairness and reasonableness of the underwriting terms and ~~arrangements under this Agreement~~arrangements. (h) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Settlement ~~Date~~ Date, as the case may be, shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished to Agent and the Agent's ’s counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common Shares shall not have been suspended on the NASDAQ Capital Market. The Shares shall have been listed and authorized for trading on the NASDAQ Capital Market prior to the first Settlement Date, and satisfactory evidence of such actions shall have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are ~~reasonably~~ satisfactory in form and substance to Agent and the Agent's ’s counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably request.

Appears in 1 contract

Samples: Equity Distribution Agreement (SeaSpine Holdings Corp)

Conditions of Agent’s Obligations. The obligations of the Agent hereunder are subject to (i) the accuracy of, as of the date hereof, each Bringdown Date, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein, (ii) the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) If ~~the~~ filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no stop order suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's ’s satisfaction. (b) The Agent shall not have advised the Company that the Registration Statement, the Base Prospectus, the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which, in the Agent's ’s opinion, is material, or omits to state a fact which, in the Agent's ’s opinion, is material and is required to be stated therein or is necessary to make the statements therein (i) with respect to the Registration Statement, not misleading and (ii) with respect to the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading. (c) Except as set forth or contemplated in ~~the Base Prospectus,~~ the Prospectus and any Permitted Free Writing Prospectus, subsequent to the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding ~~options~~ options, preferred stock, notes or warrants that are disclosed in the Registration Statement or the Prospectus or the issuance of securities pursuant to the Company’s equity incentive plans or employee stock purchase plans described in the Registration Statement or the Prospectus), or any material change in the short-term or long-term debt, of the Company, or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described above, in the Agent's ’s judgment, makes it impractical or inadvisable to offer or deliver the Shares. (d) The Company shall have performed each of its obligations under Section ~~4(p~~3(q). (e) The Company shall have performed each of its obligations under Section ~~4(q~~3(r). (f) The Company shall have performed each of its obligations under Section ~~4(r~~3(s). (g) The Company shall have performed each of its obligations under Section 3(t). (h) The Company shall have performed each of its obligations under Section 3(u). (i) The Company shall have performed each of its obligations under Section 3(v). (j) The Base prospectus shall have been filed and cleared with FINRA and FINRA shall ~~not~~ have raised ~~any~~ no objection to the fairness and reasonableness of the underwriting terms and ~~arrangements under this Agreement~~arrangements. (hk) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (il) The Company shall have furnished to Agent and the Agent's ’s counsel such additional documents, certificates and evidence as they may have reasonably requested. (jm) Trading in the Common ~~Shares~~ Stock shall not have been suspended on the ~~NASDAQ Capital Market~~Exchange. The Shares shall have been listed and authorized for trading on the ~~NASDAQ Capital Market~~ Exchange prior to the first Settlement Date, and satisfactory evidence of such actions shall have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the ~~NASDAQ Capital Market~~Exchange. (n) On each Bringdown Date, Gracin & Mxxxxx, LLP, counsel for the Agent, shall not have reasonably determined that the Base Prospectus, the Prospectus, or any Permitted Free Writing Prospectus, as of such date, includes an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's ’s counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably request.

Appears in 1 contract

Samples: Equity Distribution Agreement (Guardion Health Sciences, Inc.)

Conditions of Agent’s Obligations. The obligations of the Agent hereunder are subject to (i) the accuracy of, as of the date hereof, each Bringdown Date, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein, (ii) the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) If ~~the~~ filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no stop order suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's ’s satisfaction. (b) The Agent shall not have advised the Company that the Registration Statement, the Base Prospectus, the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which, in the Agent's ’s opinion, is material, or omits to state a fact which, in the Agent's ’s opinion, is material and is required to be stated therein or is necessary to make the statements therein (i) with respect to the Registration Statement, not misleading and (ii) with respect to the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading. (c) Except as set forth or contemplated in ~~the Base Prospectus,~~ the Prospectus and any Permitted Free Writing Prospectus, subsequent to the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding ~~options~~ options, preferred stock, notes or warrants that are disclosed in the Registration Statement or the Prospectus or the issuance of securities pursuant to the Company’s equity incentive plans or employee stock purchase plans described in the Registration Statement or the Prospectus), or any material change in the short-term or long-term debt, of the Company, or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described above, in the Agent's ’s judgment, makes it impractical or inadvisable to offer or deliver the Shares. (d) The Company shall have performed each of its obligations under Section ~~4(p~~3(q). (e) The Company shall have performed each of its obligations under Section ~~4(q~~3(r). (f) The Company shall have performed each of its obligations under Section ~~4(r~~3(s). (g) FINRA shall ~~not~~ have raised ~~any~~ no objection to the fairness and reasonableness of the underwriting terms and ~~arrangements under this Agreement~~arrangements. (h) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished to Agent and the Agent's ’s counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common ~~Shares~~ Stock shall not have been suspended on the ~~NASDAQ Capital Market~~NYSE American. The Shares shall have been listed and authorized for trading on the ~~NASDAQ Capital Market~~ NYSE American prior to the first Settlement Date, and satisfactory evidence of such actions shall have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the ~~NASDAQ Capital Market~~NYSE American. (k) On each Bringdown Date, Ellenoff Gxxxxxxx & Schole LLP, counsel for the Agent, shall not have reasonably determined that the Base Prospectus, the Prospectus, or any Permitted Free Writing Prospectus, as of such date, includes an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's ’s counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably request.

Appears in 1 contract

Samples: Equity Distribution Agreement (Hemispherx Biopharma Inc)

Conditions of Agent’s Obligations. The obligations of the ~~Agent~~ Agents hereunder shall be subject, in each of their sole discretion, to the condition that all representations and warranties and other statements of the Company herein or in certificates of any officer of the Company delivered pursuant to the provisions hereof are ~~subject to (i) the accuracy of,~~ true and correct as of the time of the execution of this Agreement, the date ~~hereof,~~ of any executed Terms Agreement and as of each ~~Bringdown~~ Representation Date, Applicable Time and ~~each Time of Sale (in each case~~Settlement Date, ~~as if made at such date), and compliance with, all representations, warranties and agreements of~~ to the condition that the Company ~~contained herein, (ii) the performance by the Company~~ shall have performed all of its obligations hereunder theretofore to be performed, and ~~(iii)~~ the following additional conditions: (a) ~~If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company~~ The Prospectus Supplement shall have been filed ~~the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus~~ with the Commission pursuant to Rule 424(b) under the 1933 Act on or prior to the date hereof and in accordance with Section 3(a) hereof, any other material required to be filed by the ~~manner and~~ Company pursuant to Rule 433(d) under the 1933 Act shall have been filed with the Commission within the applicable time ~~period so required (without reliance on~~ periods prescribed for such filings by Rule ~~424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective~~433; no stop order suspending the effectiveness of the Registration Statement or any part ~~thereof, any Rule 462(b)~~ thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the form of the Registration ~~Statement,~~ Statement or any post-effective amendment ~~thereof, nor~~ thereto pursuant to Rule 401(g)(2) under the 1933 Act shall have been received; no stop order suspending or preventing the use of the ~~Base Prospectus, the~~ Prospectus or any ~~Permitted~~ Issuer Free Writing Prospectus shall have been ~~issued; no proceedings for the issuance of such an order shall have been~~ initiated or ~~threatened~~threatened by the Commission; and ~~any request~~ all requests for additional information on the part of the Commission ~~for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise)~~ shall have been complied with to the ~~Agent's satisfaction~~reasonable satisfaction of the Representatives. (b) ~~The Agent~~ On every date specified in Section 3(k) hereof (including, without limitation, on every Request Date), Sidley Austin LLP, counsel for the Agents, shall ~~not~~ have ~~advised~~ furnished to the Agents such written opinion or opinions, dated as of such date, with respect to such matters as the Agents may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters. (c) On every date specified in Section 3(k) hereof (including, without limitation, on every Request Date), (i) Xxxxx Xxxx LLP, counsel for the Company, shall have furnished to the Agents written opinion or opinions, dated as of such date, substantially in the form set forth in Exhibit A and Exhibit B attached hereto and in form and substance satisfactory to the Agents. (d) At the dates specified in Section 3(l) hereof (including, without limitation, on every Request Date), the independent accountants of the Company ~~that~~ who have certified the financial statements of the Company and its subsidiaries included or incorporated by reference in the Registration Statement, the ~~Base Prospectus~~General Disclosure Package and the Prospectus shall have furnished to the Agents a letter dated as of the date of delivery thereof and addressed to the Agents in form and substance reasonably satisfactory to the Agents and their counsel, containing statements and information of the ~~Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which,~~ type ordinarily included in ~~the Agent's opinion, is material, or omits~~ accountants’ “comfort letters” to ~~state a fact which, in the Agent's opinion, is material and is required to be stated therein or is necessary to make the statements therein (i)~~ underwriters with respect to the financial statements of the Company and its subsidiaries included or incorporated by reference in the Registration Statement, ~~not misleading~~ the General Disclosure Package and the Prospectus. (e) (i) Upon commencement of the offering of Shares under this Agreement and on such other dates as reasonably requested by Agent, the Company will furnish or cause to be furnished promptly to the Agents a certificate of an officer in a form satisfactory to the Agents stating the minimum gross sales price per share for the sale of such Shares pursuant to this Agreement and the maximum number of Shares that may be issued and sold pursuant to this Agreement or, alternatively, maximum gross proceeds from such sales, as authorized from time to time by the Company’s board of directors or a duly authorized committee thereof, and the number of Shares that have been approved for listing on the NYSE or, in connection with any amendment, revision or modification of such minimum price or maximum Share number or amount, a new certificate with respect thereto and (ii) ~~with respect~~ on each date specified in Section 3(j) (including, without limitation, on every Request Date), the Agents shall have received a certificate of executive officers of the Company, one of whom shall be the Chief Financial Officer, Chief Accounting Officer, Treasurer, or Executive Vice President in the area of capital markets and investments, dated as of the date thereof, to the ~~Base Prospectus,~~ effect that (A) there has been no Material Adverse Effect since the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading. (c) Except as set forth or contemplated in the Base Prospectus, the Prospectus and any Permitted Free Writing Prospectus, subsequent to the respective dates date as of which information is given ~~therein~~in the Prospectus as then amended or supplemented, (B) the representations and warranties in Section 1 hereof are true and correct as of such date and (C) the Company ~~shall not have incurred any material liabilities or obligations, direct or contingent, or~~ has complied with all of the agreements entered into ~~any material transactions,~~ in connection with the transaction contemplated herein and satisfied all conditions on its part to be performed or ~~declared~~ satisfied. (f) Since the date of the latest audited financial statements then included or ~~paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change~~ incorporated by reference in the ~~capital stock~~Prospectus and the General Disclosure Package, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in the Prospectus), or any material change in the short-term or long-term debt, of the Company, or any no Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described above, in the Agent's judgment, makes it impractical or inadvisable to offer or deliver the Sharesshall have occurred. (dg) The Company shall have ~~performed each~~ complied with the provisions of ~~its obligations under~~ Section ~~4(p). (e~~3(c) The Company shall have performed each of its obligations under Section 4(q). (f) The Company shall have performed each of its obligations under Section 4(r). (g) FINRA shall not have raised any objection hereof with respect to the ~~fairness and reasonableness~~ timely furnishing of ~~the terms and arrangements under this Agreement~~prospectuses. (h) On such dates as reasonably requested by the Agents, the Company shall have conducted due diligence sessions, in form and substance satisfactory to the Agents. (i) All filings with the Commission required by Rule 424 under the ~~Securities~~ 1933 Act to have been filed by ~~the~~ each Applicable Time or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule ~~424.~~ 424 (~~i) The Company shall have furnished to Agent and the Agent's counsel such additional documents, certificates and evidence as they may have reasonably requested~~without reliance on Rule 424(b)(8)). (j) ~~Trading in the Common Shares shall not have been suspended on the NASDAQ Capital Market.~~ The Shares shall have ~~been listed and authorized~~ received approval for ~~trading~~ listing on the ~~NASDAQ Capital Market~~ NYSE prior to the first Settlement Date~~, and satisfactory evidence of such actions~~ . (k) Counsel for the Agents shall have been ~~provided~~ furnished with such documents and opinions as they may require in order to evidence the ~~Agent and its counsel, which may include oral confirmation from a representative~~ accuracy of any of the ~~NASDAQ Capital Market. All such opinions~~representations or warranties, ~~certificates~~or the fulfillment of any of the conditions, ~~letters~~ contained herein or in any applicable Terms Agreement; and ~~other documents will be~~ all proceedings taken by the Company in ~~compliance~~ connection with the ~~provisions hereof only if they are~~ issuance and sale of the Shares as contemplated herein or in any applicable Terms Agreement and in connection with the other transactions contemplated by this Agreement or any such Terms Agreement shall be reasonably satisfactory in form and substance to ~~Agent~~ the Agents and counsel for the ~~Agent's counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably request~~Agents.

Appears in 1 contract

Samples: Atm Equity Offering Sales Agreement (UDR, Inc.)

Conditions of Agent’s Obligations. The obligations of the Agent hereunder and under any Terms Agreement are subject to (i) the accuracy of, as of the date hereof, each Bringdown Date, ~~and~~ each Time of ~~Sale~~ Sale, each execution and delivery by the Company of a Terms Agreement (in each case, as if made at such date), and compliance ~~with,~~ with all representations, warranties and agreements of the Company contained herein, (ii) the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) If ~~the~~ filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no stop order suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's ’s satisfaction. (b) The Agent shall not have advised the Company that the Registration Statement, the Base Prospectus, the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which, in the Agent's ’s opinion, is material, or omits to state a fact which, in the Agent's ’s opinion, is material and is required to be stated therein or is necessary to make the statements therein (i) with respect to the Registration Statement, not misleading and (ii) with respect to the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading. (c) Except as set forth or contemplated in the Base Prospectus, the Prospectus and any Permitted Free Writing Prospectus, subsequent to the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital ~~stock~~ stock; and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than ~~as a result of the exercise of~~ due to any ~~currently outstanding options or warrants that are disclosed in the Prospectus~~Additional Issuances), or any material change in the short-term or long-term debt, of the Company, or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described above, in the Agent's ’s judgment, makes it impractical or inadvisable to offer or deliver the Shares. (d) The Company shall have performed each of its obligations under Section ~~4(p~~3(q). (e) ~~The Company~~ On each Bringdown Date, there shall have ~~performed each~~ been furnished to the Agent such opinion or opinions from Xxxxxx & Xxxxxxx LLP, counsel for the Agent, dated as of ~~its obligations under Section 4(q)~~such Bringdown Date and addressed to Agent, with respect to the formation of the Company, the validity of the Shares, the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus, and other related matters as Agent reasonably may request, and such counsel shall have received such papers and information as they request to enable them to pass upon such matters. (f) The Company shall have performed each of its obligations under Section ~~4(r~~3(r). (g) ~~FINRA~~ The Company shall ~~not~~ have performed each of its obligations under Section 3(s). (h) The Financial Industry Regulatory Authority, Inc. shall have raised ~~any~~ no objection to the fairness and reasonableness of the underwriting terms and ~~arrangements under this Agreement~~arrangements. (hi) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Settlement Date or the Time of Delivery, as the case may be, shall have been made within the applicable time period prescribed for such filing by Rule 424. (ij) The Company shall have furnished to Agent and the Agent's ’s counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common Shares shall not have been suspended on the NASDAQ Capital Market. The Shares shall have been listed and authorized for trading on the NASDAQ Capital Market prior to the first Settlement Date, and satisfactory evidence of such actions shall have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's ’s counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably request.

Appears in 1 contract

Samples: Equity Distribution Agreement (Array Biopharma Inc)

Conditions of Agent’s Obligations. The Company, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to ~~(i)~~ the accuracy ~~of,~~ of the representations and warranties of the Company and the Bank herein contained as of the date ~~hereof~~hereof and the Closing Time, ~~each Bringdown Date,~~ to the accuracy of the statements of officers and ~~each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements~~ directors of the Company ~~contained herein~~and the Bank made pursuant to the provisions hereof, ~~(ii)~~ to the performance by the Company and the Bank of ~~its~~ their obligations ~~hereunder~~ hereunder, and ~~(iii)~~ to the following ~~additional~~ further conditions: (a) If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no No stop order suspending the effectiveness of the Registration ~~Statement~~ Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any ~~part thereof, any Rule 462(b)~~ prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or ~~any amendment thereof~~proceedings therefor initiated or, ~~nor suspending or preventing~~ to the ~~use~~ knowledge of the ~~Base Prospectus~~Company, threatened by the Commission, the ~~Prospectus~~ OCC or the FRB and no order suspending the sale of the Securities in any ~~Permitted Free Writing Prospectus~~ jurisdiction shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's satisfaction. (b) ~~The~~ At the Closing Time, the Agent shall ~~not~~ have ~~advised~~ received: (1) The favorable opinion, dated as of the Closing Time, of Silver, Fxxxxxxx, Taff & Txxxxxx LLP, counsel for the Company and the Bank, in form and substance satisfactory to counsel for the Agent, as attached hereto as Exhibit A. (2) The favorable opinion, dated as of the Closing Time, of Lxxx Xxxxxx, PC, counsel for the Agent, as to such matters as the Agent may reasonably require. (3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Silver, Fxxxxxxx, Txxx & Txxxxxx LLP and Lxxx Xxxxxx, PC shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration ~~Statement~~Statement (except for financial statements and schedules and other financial, pro forma or statistical data included therein, as to which counsel need make no statement), at the ~~Base Prospectus~~time it became effective, ~~the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains~~ contained an untrue statement of a material fact ~~which, in the Agent's opinion, is material,~~ or ~~omits~~ omitted to state a material fact ~~which, in the Agent's opinion, is material and is~~ required to be stated therein or is necessary to make the statements therein not misleading or that the Prospectus (~~i) with respect~~ except for financial statements and schedules and other financial, pro forma or statistical data included therein, as to which counsel need make no statement), at the time the Registration ~~Statement~~Statement became effective, ~~not misleading and (ii) with respect to~~ as of the ~~Base Prospectus,~~ date of the Prospectus or ~~any Permitted Free Writing Prospectus~~at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, Silver, Fxxxxxxx, Txxx & Txxxxxx LLP and Lxxx Xxxxxx, PC may rely as to matters of fact on certificates of officers and directors of the Company and the Bank and certificates of public officials. Lxxx Xxxxxx, PC may also rely on the opinion of Silver, Fxxxxxxx, Taff & Txxxxxx LLP. (c) ~~Except as set forth or contemplated~~ At the Closing Time referred to in ~~the Base Prospectus~~Section 2 hereof, the ~~Prospectus~~ Company and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company or the Bank by the FRB, the OCC or any ~~Permitted Free Writing Prospectus~~other regulatory authority other than those which the FRB, ~~subsequent~~ the OCC or any such other regulatory authority permit to be completed after the Conversion. (d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in Registration Statement and the Prospectus), ~~or any material change in the short-term or long-term debt, of the Company, or~~ any Material Adverse ~~Effect or any development that would be reasonably likely to result in a Material Adverse Effect (~~Effect, whether or not arising in the ordinary course of business), and the Agent shall have received a certificate of the Chief Executive Officer of the Company and the Bank and the Chief Financial Officer of the Company and the Bank, dated as of Closing Time, to the effect that (i) there has been no such Material Adverse Effect, (ii) there shall have been no material transaction entered into by the Company or the Bank from the latest date as of which the financial condition of the Company or the Bank, as set forth in the Registration Statement, the Prospectus and the General Disclosure Package other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither the Company nor the Bank shall have received from the FRB or OCC any order or direction (oral or written) to make any material ~~loss~~ change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company and the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company and the Bank have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company or the Bank, threatened by ~~strike~~the Commission, ~~fire~~(vii) no order suspending the OCC approval of the Conversion Application or the FRB’s approval of the Holding Company Application or the transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, ~~flood~~to the knowledge of the Company or the Bank, ~~earthquake~~threatened by the OCC or the FRB and no person has sought to obtain regulatory or judicial review of the action of the OCC in approving the Plan in accordance with the Conversion Regulations nor has any person sought to obtain regulatory or judicial review of the action of the OCC in approving the Conversion Application or the FRB in approving the Holding Company Application, ~~accident~~ and (viii) no order suspending the Subscription and Community Offering, the Syndicated Offering or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the OCC or the FRB. (e) At the Closing Time, the Agent shall have received a certificate of the Chief Executive Officer of the Company and the Bank and the Chief Financial Officer of the Company and the Bank, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement, the Prospectus and the General Disclosure Package; (ii) based on each of their knowledge, the Registration Statement, the Prospectus and the General Disclosure Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; (iii) based on each of their knowledge, the financial statements and other ~~calamity~~financial information included in the Registration Statement, the Prospectus and the General Disclosure Package fairly present the financial condition and results of operations of the Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus; (iv) they are responsible for establishing and maintaining disclosure controls and procedures; (v) they have designed such disclosure controls and procedures to ensure that material information relating to the Company and the Bank is made known to them; (vi) they have evaluated the effectiveness of their disclosure controls and procedures; and (vii) they have disclosed to Castaing, Hxxxxx & Lxxxx, LLC, and the audit committee (A) all significant deficiencies in the design or operation of disclosure controls and procedures which are reasonably likely to adversely affect the Bank’s ability to record, process, summarize, and report financial data, and have identified for the Company’s and the Bank’s independent registered public accounting firm any material weaknesses in disclosure controls and procedures and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s and the Bank’s disclosure controls and procedures. (f) As of the date hereof, the Agent shall have received from Castaing, Hxxxxx & Lxxxx, LLC a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the Company and the Bank within the meaning of the Securities Act and the Securities Act Regulations and the Conversion Regulations, and they are registered with the PCAOB; (ii) it is their opinion that the financial statements and supporting schedules included in the Registration Statement and covered by ~~insurance, incurred~~ their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the ~~Company~~Agent and Castaing, Hxxxxx & Lxxxx, LLC set forth in detail in such letter, nothing has come to their attention which causes them to believe that, except as set forth in such letter, (A) the unaudited amounts of net interest income and net income set forth under “Selected Financial and Other Data” or under “Recent Developments” in the Prospectus and the General Disclosure Package do not agree with the amounts set forth in unaudited financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, the Prospectus and the General Disclosure Package, (B) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the long-term or short-term debt of the Bank or any decrease in total assets, investment securities, total loans, the allowance for loan losses, total deposits or retained earnings of the Bank, in each case as compared with the amounts shown in the June 30, 2021 unaudited statements of financial condition presented under the “Recent Developments” caption in the Registration Statement or, (C) during the period from June 30, 2021 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Bank, or increases in interest expense or the provision for loan losses, except in all instances for increases or decreases which the Registration Statement, the Prospectus and the General Disclosure Package disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information that are included in the Registration Statement, Prospectus and the General Disclosure Package and that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company and the Bank identified in such letter. (g) At the Closing Time, the Agent shall have received from Castaing, Hxxxxx & Lxxxx, LLC a letter dated as of the Closing Time, to the effect that they reaffirm the statements made in the letters furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than three (3) business days prior to the Closing Time. (h) At the Closing Time, the Securities shall have been approved for listing on the Nasdaq Stock Market. (i) At the Closing Time, the Bank shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal. (j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent. (k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis, including any natural disasters or other force majeure events or any epidemic, pandemic or disease outbreak or escalation (including the COVID-19 pandemic to the extent there is any material escalation or material worsening of such pandemic or the effects thereof subsequent to the date hereof), the effect of which, in ~~any such case described above, in~~ the judgment of the Agent~~'s judgment~~, ~~makes~~ are so material and adverse as to make it ~~impractical~~ impracticable to market the Securities or ~~inadvisable~~ to ~~offer~~ enforce contracts, including subscriptions or ~~deliver~~ orders, for the Shares. (d) The Company shall have performed each of its obligations under Section 4(p). (e) The Company shall have performed each of its obligations under Section 4(q). (f) The Company shall have performed each of its obligations under Section 4(r). (g) FINRA shall not have raised any objection to the fairness and reasonableness sale of the ~~terms~~ Securities, and ~~arrangements under this Agreement.~~ (hii) ~~All filings with~~ trading generally on any of the ~~Commission required by Rule 424 under~~ NYSE American, the ~~Securities Act to have been filed by~~ New York Stock Exchange or the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished to Agent and the Agent's counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common Shares Nasdaq Stock Market shall not have been ~~suspended on the NASDAQ Capital Market. The Shares~~ suspended, and minimum or maximum prices for trading shall not have been ~~listed and authorized~~ fixed, or maximum ranges for ~~trading on~~ prices for securities have been required, by any of said Exchanges or by order of the ~~NASDAQ Capital Market prior to the first Settlement Date~~Commission or any other governmental authority, and ~~satisfactory evidence of such actions~~ a banking moratorium shall not have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably requestdeclared by either Federal or Louisiana authorities.

Appears in 1 contract

Samples: Agency Agreement (Catalyst Bancorp, Inc.)

Conditions of Agent’s Obligations. The obligations of the ~~Agent~~ Agents hereunder shall be subject, in each of their sole discretion, to the condition that all representations and warranties and other statements of the Company herein or in certificates of any officer of the Company delivered pursuant to the provisions hereof are ~~subject to (i) the accuracy of,~~ true and correct as of the time of the execution of this Agreement, the date ~~hereof,~~ of any executed Terms Agreement and as of each ~~Bringdown~~ Representation Date, Applicable Time and ~~each Time of Sale (in each case~~Settlement Date, ~~as if made at such date), and compliance with, all representations, warranties and agreements of~~ to the condition that the Company ~~contained herein, (ii) the performance by the Company~~ shall have performed all of its obligations hereunder theretofore to be performed, and ~~(iii)~~ the following additional conditions: (a) If The Prospectus Supplement shall have been filed with the ~~filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required~~ Commission pursuant to Rule 424(b) under the Securities Act on or prior to the ~~Rules~~ date hereof and ~~Regulations~~in accordance with Section 3(a) of this Agreement, any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act shall have been filed ~~the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus~~ with the Commission ~~in the manner and~~ within the applicable time ~~period so required (without reliance on~~ periods prescribed for such filings by Rule ~~424(b)(8) or Rule 164(b))~~433; the Registration Statement shall ~~remain effective;~~ have been filed by the Company with the Commission not earlier than three years prior to the date hereof and became effective upon filing in accordance with Rule 462(e) of the Securities Act Regulations, and no stop order suspending the effectiveness of the Registration Statement or any part ~~thereof, any Rule 462(b)~~ thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the form of the Registration ~~Statement,~~ Statement or any post-effective amendment ~~thereof, nor~~ thereto pursuant to Rule 401(g)(2) under the Securities Act shall have been received; no stop order suspending or preventing the use of the ~~Base Prospectus, the~~ Prospectus or any ~~Permitted~~ Issuer Free Writing Prospectus shall have been ~~issued; no proceedings for the issuance of such an order shall have been~~ initiated or ~~threatened~~threatened by the Commission; and ~~any request~~ all requests for additional information on the part of the Commission ~~for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise)~~ shall have been complied with to the ~~Agent's satisfaction~~reasonable satisfaction of the Agents and the Forward Purchasers. (b) ~~The Agent~~ On every date specified in Section 3(k) of this Agreement (including, without limitation, on every Request Date), Fxxxx, Fxxxx, Hxxxxx, Sxxxxxx & Jxxxxxxx LLP, counsel for the Agents and the Forward Purchasers, shall ~~not~~ have ~~advised~~ furnished to the Agents and the Forward Purchasers such written opinion or opinions, dated as of such date, with respect to such matters as the Agents and the Forward Purchasers may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters. In said opinion, Fxxxx, Fxxxx, Hxxxxx, Sxxxxxx & Jxxxxxxx LLP may rely as to all matters of Maryland law on the opinion of Vxxxxxx LLP. (c) On every date specified in Section 3(k) of this Agreement (including, without limitation, on every Request Date), Gxxxxxx Procter LLP, counsel for the Company, shall have furnished to the Agents and the Forward Purchasers a written opinion or opinions, dated as of such date, substantially in the forms set forth in Exhibits A-1-A and A-1-B attached hereto and in form and substance satisfactory to the Agents and the Forward Purchasers. (d) On every date specified in Section 3(k) of this Agreement (including, without limitation, on every Request Date), Jxxxx Xxxxxxxxxx, Esq., General Counsel for the Company, shall have furnished to the Agents and the Forward Purchasers a written opinion or opinions, dated as of such date, substantially in the form set forth in Exhibit A-2 attached hereto and in form and substance satisfactory to the Agents and the Forward Purchasers. (e) On every date specified in Section 3(k) of this Agreement (including, without limitation, on every Request Date), Seyfarth Sxxx LLP, counsel for the Company, shall have furnished to the Agents and the Forward Purchasers a written opinion or opinions, dated as of such date, substantially in the form set forth in Exhibit A-3 attached hereto and in form and substance satisfactory to the Agents and the Forward Purchasers. (f) On every date specified in Section 3(k) of this Agreement (including, without limitation, on every Request Date), Vxxxxxx LLP, Maryland counsel for the Company, shall have furnished to the Agents and the Forward Purchasers a written opinion or opinions, dated as of such date, substantially in the form set forth in Exhibit A-4 attached hereto and in form and substance satisfactory to the Agents and the Forward Purchasers. (g) At the dates specified in Section 3(l) of this Agreement (including, without limitation, on every Request Date), BDO USA LLP, the independent accountants of the Company ~~that~~ who have certified the financial statements of the Company and its subsidiaries included or incorporated by reference in the Registration Statement, the ~~Base Prospectus,~~ Disclosure Package and the Prospectus, ~~or any amendment or supplement thereto~~shall have furnished to the Agents and the Forward Purchasers a letter dated as of the date of delivery thereof and addressed to the Agents and the Forward Purchasers in form and substance reasonably satisfactory to the Agents and the Forward Purchasers and their counsel, ~~or any Permitted Free Writing Prospectus, contains an untrue statement~~ containing statements and information of ~~fact which,~~ the type ordinarily included in ~~the Agent's opinion, is material, or omits~~ accountants’ “comfort letters” to ~~state a fact which, in the Agent's opinion, is material~~ agents and ~~is required to be stated therein or is necessary to make the statements therein (i)~~ underwriters with respect to the financial statements of the Company and its subsidiaries included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus. (i) Upon commencement of the offering of Shares under this Agreement and on such other dates as reasonably requested by the Agents and the Forward Purchasers, the Company will furnish or cause to be furnished promptly to the Agents and the Forward Purchasers a placement notice in the form attached hereto as Annex II stating the maximum number of Shares and aggregate gross sales price to be sold by the Agent on such day (in any event not ~~misleading~~ in excess of the number or aggregate gross sales price available for issuance under the Prospectus and the currently effective Registration Statement, as authorized from time to time to be issued and sold under this Agreement or any Terms Agreement by the Company’s board of trustees, or a duly authorized committee thereof, or in a number in excess of the number of Shares and any Confirmation Shares approved for listing on the NYSE) the minimum price per Share at which such Shares may be sold and such other terms as contemplated by Annex II, or, in connection with any amendment, revision or modification of such minimum price or maximum Share number or amount, a new certificate with respect thereto and (ii) ~~with respect~~ on each date specified in Section 3(j) or other term (including, without limitation, on every Request Date), the Agents and the Forward Purchasers shall have received a certificate of executive officers of the Company, one of whom shall be the Chief Financial Officer, Chief Accounting Officer, Treasurer, or Executive Vice President in the area of capital markets and investments, dated as of the date thereof, to the ~~Base Prospectus,~~ effect that (A) there has been no Material Adverse Change since the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading. (c) Except as set forth or contemplated in the Base Prospectus, the Prospectus and any Permitted Free Writing Prospectus, subsequent to the respective dates date as of which information is given ~~therein~~in the Prospectus as then amended or supplemented or the Disclosure Package, (B) the representations and warranties in Section 1 of this Agreement are true and correct as of such date. (C) the Company ~~shall not have incurred any material liabilities or obligations, direct or contingent, or~~ has complied with all of the agreements entered into ~~any material transactions,~~ in connection with the transactions contemplated herein and satisfied all conditions on its part to be performed or ~~declared or paid any dividends or made any distribution of any kind with respect to its capital stock~~ satisfied and ~~there shall not have~~ (D) the condition set forth in Section 6(a) has been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in the Prospectus), or any material change in the short-term or long-term debt, of the Company, or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described above, in the Agent's judgment, makes it impractical or inadvisable to offer or deliver the Sharessatisfied. (di) Since the date of the latest audited financial statements then included or incorporated by reference in the Prospectus and the Disclosure Package, no Material Adverse Change shall have occurred. (j) The Company shall have ~~performed each~~ complied with the provisions of ~~its obligations under~~ Section ~~4(p)~~3(c) of this Agreement with respect to the timely furnishing of prospectuses. (ek) ~~The~~ On such dates as reasonably requested by the Agents and the Forward Purchasers, the Company shall have ~~performed each of its obligations under Section 4(q)~~conducted due diligence sessions, in form and substance satisfactory to the Agents and the Forward Purchasers. (f) The Company shall have performed each of its obligations under Section 4(r). (g) FINRA shall not have raised any objection to the fairness and reasonableness of the terms and arrangements under this Agreement. (hl) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by ~~the~~ each Applicable Time or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule ~~424~~424 (without reliance on Rule 424(b)(8)). (im) The ~~Company shall have furnished to Agent~~ Shares and the Agent's counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common Shares shall not have been suspended on the NASDAQ Capital Market. The any Confirmation Shares shall have ~~been listed and authorized~~ received approval for ~~trading~~ listing on the ~~NASDAQ Capital Market~~ NYSE prior to the first Settlement Date, . (n) Counsel for the Agents and ~~satisfactory evidence of such actions~~ the Forward Purchasers shall have been ~~provided~~ furnished with such documents and opinions as they may require in order to evidence the ~~Agent and its counsel, which may include oral confirmation from a representative~~ accuracy of any of the ~~NASDAQ Capital Market. All such opinions~~representations or warranties, ~~certificates~~or the fulfillment of any of the conditions, ~~letters~~ contained herein, in any Confirmation or in any applicable Terms Agreement; and ~~other documents will be~~ all proceedings taken by the Company in ~~compliance~~ connection with the ~~provisions hereof only if they are~~ issuance and sale of the Shares as contemplated herein or in any applicable Terms Agreement, the Confirmation Shares as contemplated in any Confirmation and in connection with the other transactions contemplated by this Agreement, any such Confirmation or any such Terms Agreement shall be reasonably satisfactory in form and substance to the Agents, the Forward Purchasers, as applicable, and their counsel. (o) Prior to any offers or sales of Shares by an Agent as forward seller, the Company shall have executed and delivered the completed Confirmation for such sales to the applicable Forward Purchaser and such Agent~~'s counsel. The Company will furnish Agent with~~ , in a form satisfactory to such ~~conformed copies of such opinions, certificates, letters~~ Forward Purchaser and ~~other documents as Agent shall reasonably request~~Agent.

Appears in 1 contract

Samples: Atm Equity Offering Sales Agreement (Acadia Realty Trust)

Conditions of Agent’s Obligations. The obligations of the Agent hereunder are subject to (i) the accuracy of, as of the date hereof, each Bringdown Date, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein, (ii) the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no stop order suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Base Prospectus, Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, Prospectus Supplement, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's ’s satisfaction. (b) The Agent shall not have advised the Company that the Registration Statement, the Base Prospectus, Prospectus Supplement, the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which, in the Agent's ’s opinion, is material, or omits to state a fact which, in the Agent's ’s opinion, is material and is required to be stated therein or is necessary to make the statements therein (i) with respect to the Registration Statement, not misleading and (ii) with respect to the Base Prospectus, Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading. (c) Except as set forth or contemplated in the Base Prospectus, Prospectus Supplement, the Prospectus and any Permitted Free Writing Prospectus, subsequent to the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding stock options or warrants that are disclosed in the Prospectus), or any material change in the short-term or long-term debt, of the Company, or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake, epidemic, pandemic, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described above, in the Agent's ’s judgment, makes it impractical or inadvisable to offer or deliver the Shares. (d) The Company shall have performed each of its obligations under Section ~~4(p~~3(p). (e) The Company shall have performed each of its obligations under Section ~~4(q~~3(q). (f) The Company shall have performed each of its obligations under ~~Section 4(r~~Sections 3(r), (s), (t) and (u). (g) FINRA shall not have raised any objection to the fairness and reasonableness of the terms and arrangements under this Agreement. (h) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished to Agent and the Agent's ’s counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common ~~Shares~~ Stock shall not have been suspended on ~~the NASDAQ Capital Market~~NYSE American. The Shares shall have been listed and authorized for trading on ~~the NASDAQ Capital Market~~ NYSE American prior to the first Settlement Date, and satisfactory evidence of such actions shall have been provided to the Agent and its counsel, which may include oral confirmation from a representative of ~~the NASDAQ Capital Market~~NYSE American. (k) The Company shall have in place a directors and officers insurance policy, in form and substance reasonably satisfactory to Agent. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's ’s counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably request.

Appears in 1 contract

Samples: At the Market Issuance Sales Agreement (Intest Corp)

Conditions of Agent’s Obligations. The obligations of the Agent hereunder are subject to (i) the accuracy of, as of the date hereof, each Bringdown Date, ~~and~~ each Time of Sale (in each case, as if made at such date), and compliance ~~with,~~ with all representations, warranties and agreements of the Company contained herein, (ii) the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) If ~~the~~ filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no stop order suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's ’s satisfaction. (b) The Agent shall not have advised the Company that the Registration Statement, the Base Prospectus, the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which, in the Agent's ’s opinion, is material, or omits to state a fact which, in the Agent's ’s opinion, is material and is required to be stated therein or is necessary to make the statements therein (i) with respect to the Registration Statement, not misleading and (ii) with respect to the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading. (c) Except as set forth or contemplated in the Base Prospectus, the Prospectus and any Permitted Free Writing Prospectus, subsequent to the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital ~~stock~~ stock; and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than ~~as a result of the exercise of~~ due to any ~~currently outstanding options or warrants that are disclosed in the Prospectus~~Additional Issuances), or any material change in the short-term or long-term debt, of the Company, or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described above, in the Agent's ’s judgment, makes it impractical or inadvisable to offer or deliver the Shares. (d) The Company shall have performed each of its obligations under Section ~~4(p~~3(q). (e) ~~The Company~~ On each Bringdown Date, Ellenoff Xxxxxxxx & Schole LLP, counsel for the Agent, shall not have ~~performed each~~ reasonably determined that the Base Prospectus, the Prospectus, or any Permitted Free Writing Prospectus, as of ~~its obligations under Section 4(q)~~such date, includes an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading. (f) The Company shall have performed each of its obligations under Section ~~4(r~~3(r). (g) ~~FINRA~~ The Company shall ~~not~~ have performed each of its obligations under Section 3(s). (h) The Financial Industry Regulatory Authority, Inc. shall have raised ~~any~~ no objection to the fairness and reasonableness of the underwriting terms and ~~arrangements under this Agreement~~arrangements. (hi) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (ij) The Company shall have furnished to Agent and the Agent's ’s counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common Shares shall not have been suspended on the NASDAQ Capital Market. The Shares shall have been listed and authorized for trading on the NASDAQ Capital Market prior to the first Settlement Date, and satisfactory evidence of such actions shall have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's ’s counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably request.

Appears in 1 contract

Samples: Equity Distribution Agreement (Hemispherx Biopharma Inc)

Conditions of Agent’s Obligations. The obligations of the Agent hereunder are subject to (i) the accuracy ofin all material respects of all representations and warranties of the Company contained herein, as of the date hereof, each Bringdown Date, and each Time of Sale (in each case, as if made at such date), except that such representations and warranties shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented relating to such Shares on such date, and ~~compliance with,~~ except that representations and warranties made as of a specific date shall be accurate in all ~~representations, warranties and agreements~~ material respects as of ~~the Company contained herein~~such specific date), (ii) the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) If ~~the~~ filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no stop order suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's ’s satisfaction. (b) The Agent shall not have advised the Company that the Registration Statement, the Base Prospectus, the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which, in the Agent's ’s opinion, is material, or omits to state a fact which, in the Agent's ’s opinion, is material and is required to be stated therein or is necessary to make the statements therein (i) with respect to the Registration Statement, not misleading and (ii) with respect to the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading. (c) Except as set forth or contemplated in the ~~Base Prospectus, the~~ Prospectus and any Permitted Free Writing Prospectus, as amended and supplemented, subsequent to the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, not in the ordinary course of business, or declared or paid any dividends or made any distribution of any kind with respect to its capital ~~stock~~ stock, and there shall not have been any material change in the capital stock, or any material issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding ~~options~~ options, preferred stock, notes or warrants that are disclosed in the Registration Statement or the Prospectus or the issuance of securities pursuant to the Company’s equity incentive plans or employee stock purchase plans described in the Registration Statement or the Prospectus), or any material change in the short-term or long-term debt, of the Company, or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described above, in the Agent's ’s judgment, makes it impractical or inadvisable to offer or deliver the Shares. (d) The Company shall have performed each of its obligations under Section ~~4(p~~3(q). (e) The Company shall have performed each of its obligations under Section ~~4(q~~3(r). (f) The Company shall have performed each of its obligations under Section ~~4(r~~3(s). (g) FINRA shall ~~not~~ have raised ~~any~~ no objection to the fairness and reasonableness of the underwriting terms and ~~arrangements under this Agreement~~arrangements. (h) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished to Agent and the Agent's ’s counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the ~~Common~~ Ordinary Shares shall not have been suspended on the ~~NASDAQ Capital Market~~Exchange. The Shares shall have been listed and authorized for trading on the ~~NASDAQ Capital Market~~ Exchange prior to the first Settlement Date, and satisfactory evidence of such actions shall have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the ~~NASDAQ Capital Market~~Exchange. (k) On each Bringdown Date, Ellenoff Gxxxxxxx & Schole LLP, counsel for the Agent, shall not have reasonably determined that the Base Prospectus, the Prospectus, or any Permitted Free Writing Prospectus, as of such date, includes an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's ’s counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably request.

Appears in 1 contract

Samples: Equity Distribution Agreement (NAKED BRAND GROUP LTD)

Conditions of Agent’s Obligations. The obligations of the Agent ~~hereunder are subject to (i) the accuracy of~~hereunder, as of to the ~~date hereof~~Securities to be delivered at each Closing Time, ~~each Bringdown Date~~shall be subject, in its discretion, to the condition that all representations and ~~each Time of Sale (in each case, as if made at such date), and compliance with, all representations,~~ warranties and ~~agreements~~ other statements of the Company ~~contained herein~~herein are, ~~(ii)~~ at and as of such Closing Time, true and correct, the ~~performance by~~ condition that the Company shall have performed all of its obligations hereunder theretofore to be performed, and ~~(iii)~~ the following additional conditions: (a) If The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing of by the ~~Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required~~ rules and regulations under the Securities Act and in accordance with Section 3(a) hereof (or a post-effective amendment shall have been filed and declared effective in accordance with the ~~Rules and Regulations~~requirements of Rule 430A); if the Company has elected to rely upon Rule 462(b), the ~~Company shall have filed the Prospectus (or such amendment or supplement~~Rule 462(b) ~~or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the~~ Registration Statement shall ~~remain effective~~have become effective by 10:00 p.m., Eastern Time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part ~~thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus~~ thereof shall have been ~~issued;~~ issued and no ~~proceedings~~ proceeding for ~~the issuance of such an order~~ that purpose shall have been initiated or ~~threatened~~threatened by the Commission; and ~~any request~~ all requests for additional information on the part of the Commission ~~for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise)~~ shall have been complied with to the Agent's ’s reasonable satisfaction.; and FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements (b) ~~The~~ Ober, Kaler, Gxxxxx & Sxxxxxx, counsel for the Company, shall have furnished to the Agent ~~shall not have advised the Company that the Registration Statement~~their written opinion, ~~the Base Prospectus, the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which~~dated such Closing Time, in form and substance satisfactory to the Agent~~'s opinion~~, ~~is material, or omits to state a fact which, in the Agent's opinion, is material and is required to be stated therein or is necessary to make the statements therein (i) with respect~~ to the ~~Registration Statement, not misleading~~ effect set forth in Annex II hereto and ~~(ii) with respect~~ to such further effect as counsel to the ~~Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading.~~Agent may reasonably request; (c) ~~Except as set forth or contemplated in~~ On the ~~Base Prospectus,~~ date of the Prospectus ~~and~~ at a time prior to the execution of this Agreement, at 9:30 a.m., Eastern Time, on the effective date of any ~~Permitted Free Writing Prospectus,~~ post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Closing Time, Sxxxxxx & Company shall have furnished to the Agent a letter or letters, dated the respective dates as of ~~which information is given therein~~delivery thereof, in form and substance satisfactory to the Agent, to the effect set forth in Annex I hereto; (d) Neither the Company nor any of its Subsidiaries shall ~~not~~ have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in sustained since the ~~capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result~~ date of the ~~exercise of any currently outstanding options or warrants that are disclosed~~ latest audited financial statements included in ~~the Prospectus), or any material change in the short-term or long-term debt,~~ each of the ~~Company,~~ General Disclosure Package and the Prospectus any loss or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, interference with its business from fire, ~~flood~~explosion, ~~earthquake, accident~~ flood or other calamity, whether or not covered by insurance, ~~incurred by~~ or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the ~~Company~~Prospectus, and (ii) since the respective dates as of which information is given in each of the General Disclosure Package and the Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its Subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its Subsidiaries, otherwise than as set forth or contemplated in each of the General Disclosure Package and the Prospectus, the effect of which, in any such case described ~~above~~in Clause (i) or (ii), is in the ~~Agent's judgment, makes~~ judgment of the Agent so material and adverse as to make it ~~impractical~~ impracticable or inadvisable to ~~offer~~ proceed with the public offering or ~~deliver~~ the ~~Shares.~~delivery of the Securities being delivered at such Closing Time on the terms and in the manner contemplated in each of the General Disclosure Package and the Prospectus; (de) On or after the date hereof (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities by any “nationally recognized statistical rating organization”, as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities; (f) On or after the date hereof there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange or on the Nasdaq Stock Market; (ii) a suspension or material limitation in trading in the Company’s securities on the OTCBB; (iii) a general moratorium on commercial banking activities declared by either Federal or New York state or Maryland state authorities; or (iv) the outbreak or escalation of hostilities or the declaration of a national emergency or war or a change in general economic, political or financial conditions, including without limitation as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the United States shall be such), or any other national or international calamity or crisis, if the effect of any such event specified in this Clause (iv) in the judgment of the Agent makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities being delivered at such Closing Time on the terms and in the manner contemplated in the Prospectus; (g) The Company shall have ~~performed each~~ complied with the provisions of ~~its obligations under~~ Section ~~4(p). (e~~3(e) The Company shall have performed each of its obligations under Section 4(q). (f) The Company shall have performed each of its obligations under Section 4(r). (g) FINRA shall not have raised any objection hereof with respect to the ~~fairness and reasonableness~~ furnishing of prospectuses on the ~~terms and arrangements under~~ Business Day next succeeding the date of this Agreement.; and (h) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished or caused to be furnished to the Agent at such Closing Time certificates of officers of the Company satisfactory to the Agent as to the accuracy of the representations and warranties of the ~~Agent's counsel~~ Company herein at and as of such ~~additional documents~~Closing Time, ~~certificates~~ as to the performance by the Company of all of its obligations hereunder to be performed at or prior to such Closing Time, as to the matters set forth in subsections (a) and ~~evidence~~ (e) of this Section and as ~~they~~ to such other matters as the Agent may ~~have~~ reasonably ~~requested~~request. (ji) ~~Trading~~ If any condition specified in this Section 5 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the ~~Common Shares shall not have been suspended~~ Agent by notice to the Company at any time on ~~the NASDAQ Capital Market. The Shares shall have been listed and authorized for trading on the NASDAQ Capital Market~~ or prior to the first Settlement Date, and satisfactory evidence of such actions shall have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably requestapplicable Closing Time.

Appears in 1 contract

Samples: Agency Agreement (Howard Bancorp Inc)

Conditions of Agent’s Obligations. The obligations of the Agent ~~hereunder are subject to (i) the accuracy of~~hereunder, as of to the ~~date hereof~~Securities to be delivered at each Closing Time, ~~each Bringdown Date~~shall be subject, in its discretion, to the condition that all representations and ~~each Time of Sale (in each case, as if made at such date), and compliance with, all representations,~~ warranties and ~~agreements~~ other statements of the Company ~~contained herein~~herein are, ~~(ii)~~ at and as of such Closing Time, true and correct, the ~~performance by~~ condition that the Company shall have performed all of its obligations hereunder theretofore to be performed, and ~~(iii)~~ the following additional conditions: (a) If The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing of by the ~~Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required~~ rules and regulations under the Securities Act and in accordance with Section 3(a) hereof (or a post-effective amendment shall have been filed and declared effective in accordance with the ~~Rules and Regulations~~requirements of Rule 430A); if the Company has elected to rely upon Rule 462(b), the ~~Company shall have filed the Prospectus (or such amendment or supplement~~Rule 462(b) ~~or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the~~ Registration Statement shall ~~remain effective~~have become effective by 10:00 p.m., Eastern Time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part ~~thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus~~ thereof shall have been ~~issued;~~ issued and no ~~proceedings~~ proceeding for ~~the issuance of such an order~~ that purpose shall have been initiated or ~~threatened~~threatened by the Commission; and ~~any request~~ all requests for additional information on the part of the Commission ~~for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise)~~ shall have been complied with to the Agent's ’s reasonable satisfaction.; and FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements (b) ~~The~~ Ober, Kaler, Xxxxxx & Xxxxxxx, counsel for the Company, shall have furnished to the Agent ~~shall not have advised the Company that the Registration Statement~~their written opinion, ~~the Base Prospectus, the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which~~dated such Closing Time, in form and substance satisfactory to the Agent~~'s opinion~~, ~~is material, or omits to state a fact which, in the Agent's opinion, is material and is required to be stated therein or is necessary to make the statements therein (i) with respect~~ to the ~~Registration Statement, not misleading~~ effect set forth in Annex II hereto and ~~(ii) with respect~~ to such further effect as counsel to the ~~Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading.~~Agent may reasonably request; (c) ~~Except as set forth or contemplated in~~ On the ~~Base Prospectus,~~ date of the Prospectus ~~and~~ at a time prior to the execution of this Agreement, at 9:30 a.m., Eastern Time, on the effective date of any ~~Permitted Free Writing Prospectus,~~ post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Closing Time, Xxxxxxx & Company shall have furnished to the Agent a letter or letters, dated the respective dates as of ~~which information is given therein~~delivery thereof, in form and substance satisfactory to the Agent, to the effect set forth in Annex I hereto; (d) Neither the Company nor any of its Subsidiaries shall ~~not~~ have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in sustained since the ~~capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result~~ date of the ~~exercise of any currently outstanding options or warrants that are disclosed~~ latest audited financial statements included in ~~the Prospectus), or any material change in the short-term or long-term debt,~~ each of the ~~Company,~~ General Disclosure Package and the Prospectus any loss or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, interference with its business from fire, ~~flood~~explosion, ~~earthquake, accident~~ flood or other calamity, whether or not covered by insurance, ~~incurred by~~ or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the ~~Company~~Prospectus, and (ii) since the respective dates as of which information is given in each of the General Disclosure Package and the Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its Subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its Subsidiaries, otherwise than as set forth or contemplated in each of the General Disclosure Package and the Prospectus, the effect of which, in any such case described ~~above~~in Clause (i) or (ii), is in the ~~Agent's judgment, makes~~ judgment of the Agent so material and adverse as to make it ~~impractical~~ impracticable or inadvisable to ~~offer~~ proceed with the public offering or ~~deliver~~ the ~~Shares.~~delivery of the Securities being delivered at such Closing Time on the terms and in the manner contemplated in each of the General Disclosure Package and the Prospectus; (de) On or after the date hereof (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities by any “nationally recognized statistical rating organization”, as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities; (f) On or after the date hereof there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange or on the Nasdaq Stock Market; (ii) a suspension or material limitation in trading in the Company’s securities on the OTCBB; (iii) a general moratorium on commercial banking activities declared by either Federal or New York state or Maryland state authorities; or (iv) the outbreak or escalation of hostilities or the declaration of a national emergency or war or a change in general economic, political or financial conditions, including without limitation as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the United States shall be such), or any other national or international calamity or crisis, if the effect of any such event specified in this Clause (iv) in the judgment of the Agent makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities being delivered at such Closing Time on the terms and in the manner contemplated in the Prospectus; (g) The Company shall have ~~performed each~~ complied with the provisions of ~~its obligations under~~ Section ~~4(p). (e~~3(e) The Company shall have performed each of its obligations under Section 4(q). (f) The Company shall have performed each of its obligations under Section 4(r). (g) FINRA shall not have raised any objection hereof with respect to the ~~fairness and reasonableness~~ furnishing of prospectuses on the ~~terms and arrangements under~~ Business Day next succeeding the date of this Agreement.; and (h) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished or caused to be furnished to the Agent at such Closing Time certificates of officers of the Company satisfactory to the Agent as to the accuracy of the representations and warranties of the ~~Agent's counsel~~ Company herein at and as of such ~~additional documents~~Closing Time, ~~certificates~~ as to the performance by the Company of all of its obligations hereunder to be performed at or prior to such Closing Time, as to the matters set forth in subsections (a) and ~~evidence~~ (e) of this Section and as ~~they~~ to such other matters as the Agent may ~~have~~ reasonably ~~requested~~request. (ji) ~~Trading~~ If any condition specified in this Section 5 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the ~~Common Shares shall not have been suspended~~ Agent by notice to the Company at any time on ~~the NASDAQ Capital Market. The Shares shall have been listed and authorized for trading on the NASDAQ Capital Market~~ or prior to the first Settlement Date, and satisfactory evidence of such actions shall have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably requestapplicable Closing Time.

Appears in 1 contract

Samples: Agency Agreement (Howard Bancorp Inc)

Conditions of Agent’s Obligations. The obligations of the Agent hereunder are subject to (i) the accuracy of, as of the date hereof, each Bringdown Date, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein, (ii) the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no stop order suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Base Prospectus, Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, Prospectus Supplement, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's ’s satisfaction. (b) The Agent shall not have advised the Company that the Registration Statement, the Base Prospectus, Prospectus Supplement, the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which, in the Agent's ’s opinion, is material, or omits to state a fact which, in the Agent's ’s opinion, is material and is required to be stated therein or is necessary to make the statements therein (i) with respect to the Registration Statement, not misleading and (ii) with respect to the Base Prospectus, Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading. (c) Except as set forth or contemplated in the Base Prospectus, Prospectus Supplement, the Prospectus and any Permitted Free Writing Prospectus, subsequent to the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding ~~options~~ restricted stock units or warrants that are disclosed in the Prospectus), or any material change in the short-term or long-term debt, of the Company, or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake, epidemic, pandemic, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described above, in the Agent's ’s judgment, makes it impractical or inadvisable to offer or deliver the Shares. (d) The Company shall have performed each of its obligations under Section ~~4(p~~3(p), (q), (r), (s), (t) and (u). (e~~) The Company shall have performed each of its obligations under Section 4(q). (f) The Company shall have performed each of its obligations under Section 4(r). (g~~) FINRA shall not have raised any objection to the fairness and reasonableness of the terms and arrangements under this Agreement. (hf) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (ig) The Company shall have furnished to Agent and the Agent's ’s counsel such additional documents, certificates and evidence as they may have reasonably requested. (jh) Trading in the Common Shares shall not have been suspended on ~~the NASDAQ Capital Market~~Nasdaq. The Shares shall have been listed and authorized for trading on ~~the NASDAQ Capital Market~~ Nasdaq prior to the first Settlement Date, and satisfactory evidence of such actions shall have been provided to the Agent and its counsel, which may include oral confirmation from a representative of ~~the NASDAQ Capital Market~~The Nasdaq Stock Market LLC. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's ’s counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably request.

Appears in 1 contract

Samples: Equity Distribution Agreement (Agriforce Growing Systems Ltd.)

Conditions of Agent’s Obligations. The obligations of the Agent hereunder are subject to (i) the accuracy of, as of the date hereof, each Bringdown Date, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein, (ii) the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) If ~~the~~ filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no stop order suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's ’s satisfaction. (b) The Agent shall not have advised the Company that the Registration Statement, the Base Prospectus, the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which, in the Agent's ’s opinion, is material, or omits to state a fact which, in the Agent's ’s opinion, is material and is required to be stated therein or is necessary to make the statements therein (i) with respect to the Registration Statement, not misleading and (ii) with respect to the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading. (c) Except as set forth or contemplated in the Base Prospectus, the Prospectus and any Permitted Free Writing Prospectus, subsequent to the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than ~~as a result of the exercise of~~ due to any ~~currently outstanding options or warrants that are disclosed in the Prospectus~~Additional Issuances), or any material change in the short-term or long-term debt, of the Company, or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described above, in the Agent's ’s judgment, makes it impractical or inadvisable to offer or deliver the Shares. (d) The Company shall have performed each of its obligations under Section ~~4(p~~3(q). (e) The Company shall have performed each of its obligations under Section ~~4(q~~3(r). (f) The Company shall have performed each of its obligations under Section ~~4(r~~3(s). (g) ~~FINRA~~ The Financial Industry Regulatory Authority, Inc. shall ~~not~~ have raised ~~any~~ no objection to the fairness and reasonableness of the underwriting terms and ~~arrangements under this Agreement~~arrangements. (h) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished to Agent and the Agent's ’s counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common ~~Shares~~ Stock shall not have been suspended on ~~the NASDAQ Capital Market~~NASDAQ. The Shares shall have been listed and authorized for trading on ~~the NASDAQ Capital Market prior to the first Settlement Date~~NASDAQ, and satisfactory evidence of such actions shall have been provided to the Agent and its counsel, which may include oral confirmation from a representative of ~~the NASDAQ Capital Market~~NASDAQ. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's ’s counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably request.

Appears in 1 contract

Samples: Equity Distribution Agreement (Rit Technologies LTD)

Conditions of Agent’s Obligations. The Company, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to ~~(i)~~ the accuracy ~~of,~~ of the representations and warranties of the Company and the Bank herein contained as of the date ~~hereof~~hereof and the Closing Time, ~~each Bringdown Date,~~ to the accuracy of the statements of officers and ~~each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements~~ directors of the Company ~~contained herein~~and the officers and trustees of Bank made pursuant to the provisions hereof, ~~(ii)~~ to the performance by the Company and the Bank of ~~its~~ their obligations ~~hereunder~~ hereunder, and ~~(iii)~~ to the following ~~additional~~ further conditions: (a) If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no No stop order suspending the effectiveness of the Registration ~~Statement~~ Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any ~~part thereof, any Rule 462(b)~~ prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or ~~any amendment thereof~~proceedings therefor initiated or, ~~nor suspending or preventing~~ to the ~~use~~ knowledge of the ~~Base Prospectus~~Company, threatened by the Commission, the ~~Prospectus~~ PDB, the FDIC or the FRB and no order suspending the sale of the Securities in any ~~Permitted Free Writing Prospectus~~ jurisdiction shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's satisfaction. (b) ~~The~~ At the Closing Time, the Agent shall ~~not~~ have ~~advised~~ received: (1) The favorable opinion, dated as of the Closing Time, of Xxxx Xxxxxx, PC, counsel for the Company and the Bank, in form and substance satisfactory to counsel for the Agent, as attached hereto as Exhibit A. (2) The favorable opinion, dated as of the Closing Time, of Silver, Xxxxxxxx, Taff & Xxxxxxx LLP, counsel for the Agent, as to such matters as the Agent may reasonably require. (3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Xxxx Xxxxxx, PC and Silver, Xxxxxxxx, Xxxx & Xxxxxxx LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration ~~Statement~~Statement (except for financial statements and schedules and other financial, pro forma or statistical data included therein, as to which counsel need make no statement), at the ~~Base Prospectus~~time it became effective, ~~the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains~~ contained an untrue statement of a material fact ~~which, in the Agent's opinion, is material,~~ or ~~omits~~ omitted to state a material fact ~~which, in the Agent's opinion, is material and is~~ required to be stated therein or is necessary to make the statements therein not misleading or that the Prospectus (~~i) with respect~~ except for financial statements and schedules and other financial, pro forma or statistical data included therein, as to which counsel need make no statement), at the time the Registration ~~Statement~~Statement became effective, ~~not misleading and (ii) with respect to~~ as of the ~~Base Prospectus,~~ date of the Prospectus or ~~any Permitted Free Writing Prospectus~~at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, Xxxx Xxxxxx, PC and Silver, Xxxxxxxx, Xxxx & Xxxxxxx LLP may rely as to matters of fact on certificates of officers and directors of the Company and the Bank and certificates of public officials. Silver, Xxxxxxxx, Taff & Xxxxxxx LLP may also rely on the opinion of Xxxx Xxxxxx, PC. (c) ~~Except as set forth or contemplated~~ At the Closing Time referred to in ~~the Base Prospectus~~Section 2 hereof, the ~~Prospectus~~ Company and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company or the Bank by the FRB, the PDB or the FDIC or any ~~Permitted Free Writing Prospectus~~other regulatory authority other than those which the FRB, ~~subsequent~~ the PDB or the FDIC or any such other regulatory authority permit to be completed after the Conversion. (d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in Registration Statement and the Prospectus), ~~or any material change in the short-term or long-term debt, of the Company, or~~ any Material Adverse ~~Effect or any development that would be reasonably likely to result in a Material Adverse Effect (~~Effect, whether or not arising in the ordinary course of business), and the Agent shall have received a certificate of the Chief Executive Officer of the Company and the Bank and the Chief Financial Officer of the Company and the Bank, dated as of Closing Time, to the effect that (i) there has been no such Material Adverse Effect, (ii) there shall have been no material transaction entered into by the Company or the Bank from the latest date as of which the financial condition of the Company or the Bank, as set forth in the Registration Statement, the Prospectus and the General Disclosure Package other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither the Company nor the Bank shall have received from the FRB, the PDB or the FDIC any order or direction (oral or written) to make any material ~~loss~~ change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company and the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company and the Bank have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company or the Bank, threatened by ~~strike~~the Commission, ~~fire~~(vii) no order suspending the PDB’s approval of the Conversion Applications or the FRB’s or PDB’s approval of the Holding Company Applications or the transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, ~~flood~~to the knowledge of the Company or the Bank, ~~earthquake~~threatened by the PDB or the FRB and no person has sought to obtain regulatory or judicial review of the action of the PDB in approving the Plan in accordance with the Pennsylvania Conversion Law nor has any person sought to obtain regulatory or judicial review of the action of the PDB in approving the Conversion Applications or the FRB in approving the Holding Company Applications, ~~accident~~ and (viii) no order suspending the Subscription and Community Offering or the Syndicated Offering or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the PDB, the FDIC or the FRB. (e) At the Closing Time, the Agent shall have received a certificate of the Chief Executive Officer of the Company and the Bank and the Chief Financial Officer of the Company and the Bank, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement, the Prospectus and the General Disclosure Package; (ii) based on each of their knowledge, the Registration Statement, the Prospectus and the General Disclosure Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; (iii) based on each of their knowledge, the financial statements and other ~~calamity~~financial information included in the Registration Statement, the Prospectus and the General Disclosure Package fairly present the financial condition and results of operations of the Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus; (iv) they are responsible for establishing and maintaining disclosure controls and procedures; (v) they have designed such disclosure controls and procedures to ensure that material information relating to the Company and the Bank is made known to them; (vi) they have evaluated the effectiveness of their disclosure controls and procedures; and (vii) they have disclosed to BDO USA LLP and the audit committee (A) all significant deficiencies in the design or operation of disclosure controls and procedures which are reasonably likely to adversely affect the Bank’s ability to record, process, summarize, and report financial data, and have identified for the Company’s and the Bank’s independent registered public accounting firm any material weaknesses in disclosure controls and procedures and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s and the Bank’s disclosure controls and procedures. (f) As of the date hereof, the Agent shall have received from BDO USA LLP a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the Company and the Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the Conversion Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act; (ii) it is their opinion that the financial statements and supporting schedules included in the Registration Statement and covered by ~~insurance, incurred~~ their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the ~~Company~~Agent and BDO USA LLP set forth in detail in such letters, nothing has come to their attention which causes them to believe that, except as set forth in such letters, (A) the unaudited amounts of net interest income and net income set forth under “Selected Financial and Other Data of Huntingdon Valley Bank” or under “Recent Developments” in the Prospectus and the General Disclosure Package do not agree with the amounts set forth in unaudited financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited consolidated financial statements included in the Registration Statement, the Prospectus and the General Disclosure Package, (B) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the long-term or short-term debt of the Bank or any decrease in total assets, the allowance for loan losses, total deposits or retained earnings of the Bank, in each case as compared with the amounts shown in the September 30, 2016 unaudited statements of financial condition presented under the “Recent Developments” caption in the Registration Statement or, (D) during the period from September 30, 2016 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Bank, except in all instances for increases or decreases which the Registration Statement, the Prospectus and the General Disclosure Package disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information that are included in the Registration Statement, Prospectus and the General Disclosure Package and that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company and the Bank identified in such letter. (g) At the Closing Time, the Agent shall have received from BDO USA LLP a letter dated as of the Closing Time, to the effect that they reaffirm the statements made in the letters furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time. (h) At the Closing Time, the Securities shall have been approved for listing on the Nasdaq Stock Market. (i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal. (j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent. (k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in ~~any such case described above, in~~ the judgment of the Agent~~'s judgment~~, ~~makes~~ are so material and adverse as to make it ~~impractical~~ impracticable to market the Securities or ~~inadvisable~~ to ~~offer~~ enforce contracts, including subscriptions or ~~deliver~~ orders, for the Shares. (d) The Company shall have performed each of its obligations under Section 4(p). (e) The Company shall have performed each of its obligations under Section 4(q). (f) The Company shall have performed each of its obligations under Section 4(r). (g) FINRA shall not have raised any objection to the fairness and reasonableness sale of the ~~terms~~ Securities, and ~~arrangements under this Agreement.~~ (hii) ~~All filings with~~ trading generally on any of the ~~Commission required by Rule 424 under~~ NYSE MKT, the ~~Securities Act to have been filed by~~ New York Stock Exchange or the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished to Agent and the Agent's counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common Shares Nasdaq shall not have been ~~suspended on the NASDAQ Capital Market. The Shares~~ suspended, and minimum or maximum prices for trading shall not have been ~~listed and authorized~~ fixed, or maximum ranges for ~~trading on~~ prices for securities have been required, by any of said Exchanges or by order of the ~~NASDAQ Capital Market prior to the first Settlement Date~~Commission or any other governmental authority, and ~~satisfactory evidence of such actions~~ a banking moratorium shall not have been ~~provided to the Agent and its counsel~~declared by either Federal, which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably requestPennsylvania or New York authorities.

Appears in 1 contract

Samples: Agency Agreement (HV Bancorp, Inc.)

Conditions of Agent’s Obligations. The obligations of ~~the~~ each Agent hereunder are subject to (i) the accuracy ~~of, as~~ of the representations and warranties on the part of the Company and the Operating Partnership on the date hereof, any applicable Representation Date and as of each ~~Bringdown~~ Settlement Date~~, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein~~, (ii) the performance by the Company and the Operating Partnership of ~~its~~ their obligations hereunder and (iii) to the following additional ~~conditions:~~conditions precedent. (ai) If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no No stop order ~~suspending~~ with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8(d) or 8(e) of the Act, and no order directed at or in relation to any ~~part thereof, any Rule 462(b) Registration Statement,~~ document incorporated by reference therein and no order preventing or ~~any amendment thereof, nor~~ suspending ~~or preventing~~ the use of the ~~Base Prospectus~~Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or to the knowledge of the Company, the ~~Prospectus~~ Operating Partnership or the Agents of the initiation or threatening of any ~~Permitted Free Writing Prospectus shall have been issued; no~~ proceedings for ~~the issuance~~ any of such ~~an order shall have been initiated or threatened~~purposes, has occurred; ~~and any request of the Commission for additional information~~ (~~to be included in~~ ii) the Registration ~~Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's satisfaction. (b) The Agent~~ Statement and all amendments thereto shall not ~~have advised the Company that the Registration Statement, the Base Prospectus, the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains~~ contain an untrue statement of a material fact ~~which, in the Agent's opinion, is material,~~ or ~~omits~~ omit to state a material fact ~~which, in the Agent's opinion, is material and is~~ required to be stated therein or is necessary to make the statements therein not misleading; (iiii) ~~with respect to~~ none of the ~~Registration Statement, not misleading and (ii) with respect to~~ Basic Prospectus or the ~~Base~~ Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the ~~Prospectus or any Permitted Free Writing Prospectus~~statements therein, in the light of the circumstances under which they ~~were~~ are made, not misleading; (iv) no Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (v) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading. (cb) ~~Except as set forth or contemplated in the Base Prospectus, the Prospectus and any Permitted Free Writing Prospectus, subsequent~~ Subsequent to the respective dates as of which information is given ~~therein~~in the Registration Statement, the ~~Company shall not have incurred any~~ Basic Prospectus, the Prospectus and the Permitted Free Writing Prospectuses, if any, no material ~~liabilities~~ and unfavorable change, financial or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock otherwise (other than as ~~a result of the exercise of any currently outstanding options or warrants that are disclosed~~ referred to in the Registration Statement and Prospectus), ~~or any material change~~ in the ~~short-term~~ business, condition or ~~long-term debt,~~ prospects of the ~~Company, or any Material Adverse Effect or any development that would be reasonably likely to result in~~ Company and its Subsidiaries taken as a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described abovewhole, in the ~~Agent's judgment~~judgment of the Agents, ~~makes it impractical~~ shall occur or ~~inadvisable~~ become known and no transaction which is material and unfavorable to ~~offer~~ the Company (other than as referred to in the Registration Statement and Prospectus) in the judgment of the Agents, shall have been entered into by the Company or ~~deliver~~ any of its Subsidiaries. (c) The Company shall furnish to the ~~Shares~~Agents, at every date specified in Section 4(q) of this Agreement, opinions of Company Counsel, addressed to the Agents, and dated as of such date, and in form satisfactory to the Agents, in substantially the forms set forth in Exhibit B-1, Exhibit B-2 and Exhibit B-3 hereto. (d) The Company shall ~~have performed each~~ furnish to the Agents, at every date specified in Section 4(r) of ~~its obligations under Section 4(p)~~this Agreement, an opinion of Maryland Counsel, addressed to the Agents, and dated as of such date, and in form satisfactory to the Agents, in substantially the form set forth in Exhibit C hereto. (e) ~~The Company~~ At the dates specified in Section 4(u) of this Agreement, the Agents shall have ~~performed each~~ received from the Accountants letters dated the date of ~~its obligations under Section 4(q)~~delivery thereof and addressed to the Agents in form and substance satisfactory to the Agents. (f) The Company shall ~~have~~ deliver to the Agents, at every Representation Date specified in Section 4(q) of this Agreement, a certificate of two of its executive officers to the effect that (i) the representations and warranties of the Company and the Operating Partnership as set forth in this Agreement are true and correct as of the Representation Date, (ii) the Company has performed ~~each~~ in all material respects such of its obligations under this Agreement as are to be performed at or before such Representation Date, and (iii) the conditions set forth in paragraphs (a) and (b) of Section ~~4(r)~~6 have been met. The certificate shall also state that the Shares have been duly and validly authorized by the Company, that all corporate action required to be taken for the issuance and sale of the Shares has been validly and sufficiently taken, and that the Company’s board of directors or any other body with authority has not revoked, rescinded or otherwise modified or withdrawn such authorization or corporate action. (g) ~~FINRA~~ The Agents shall ~~not~~ have ~~raised any objection~~ received, at every date specified in Section 4(t) of this Agreement, the favorable opinion of Mxxxx Xxxxx LLP, counsel to the ~~fairness~~ Agents, dated as of such date, and ~~reasonableness of~~ in form and substance satisfactory to the ~~terms and arrangements under this Agreement~~Agents. (h) The Agents shall have received, at every date specified in Section 4(s) of this Agreement, a certificate of the Secretary of the Company, dated as of such date, and in form and substance satisfactory to the Agents. (i) All filings with the Commission required by Rule 424 or Rule 433 under the ~~Securities~~ Act ~~to have been filed by the Settlement Date~~ shall have been made within the applicable time period prescribed for such filing by Rule ~~424.~~ 424 (iwithout reliance on Rule 424(b)(8)) ~~The Company shall have furnished to Agent~~ and ~~the Agent's counsel such additional documents~~Rule 433, ~~certificates and evidence as they may have reasonably requested~~respectively. (j) ~~Trading in the Common Shares shall not have been suspended on the NASDAQ Capital Market.~~ The Shares shall have been ~~listed and authorized~~ approved for ~~trading~~ listing on the ~~NASDAQ Capital Market~~ NYSE, subject only to notice of issuance at or prior to the ~~first~~ Settlement Date, and satisfactory evidence of such actions shall have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably request.

Appears in 1 contract

Samples: Equity Distribution Agreement (Global Net Lease, Inc.)

Conditions of Agent’s Obligations. The obligations of the ~~Agent~~ Agents hereunder shall be subject, in its discretion, to the condition that all representations and warranties and other statements of the Company herein or in certificates of any officer of the Company delivered pursuant to the provisions hereof are ~~subject to (i) the accuracy of,~~ true and correct as of the time of the execution of this Agreement, the date ~~hereof,~~ of any executed Terms Agreement and as of each ~~Bringdown~~ Representation Date, Applicable Time and ~~each Time of Sale (in each case~~Settlement Date, ~~as if made at such date), and compliance with, all representations, warranties and agreements of~~ to the condition that the Company ~~contained herein, (ii) the performance by the Company~~ shall have performed all of its obligations hereunder theretofore to be performed, and ~~(iii)~~ the following additional conditions: (a) ~~If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company~~ The Prospectus Supplement shall have been filed ~~the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus~~ with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations on or prior to the date hereof and in accordance with Section 3(a) hereof, any other material required to be filed by the ~~manner and~~ Company pursuant to Rule 433(d) of the 1933 Act Regulations shall have been filed with the Commission within the applicable time ~~period so required (without reliance on~~ periods prescribed for such filings by Rule ~~424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective~~433; no stop order suspending the effectiveness of the Registration Statement or any part ~~thereof, any Rule 462(b) Registration Statement,~~ thereof shall have been issued and no proceeding for that purpose shall have been initiated or ~~any amendment thereof, nor~~ threatened by the Commission; no stop order suspending or preventing the use of the ~~Base Prospectus, the~~ Prospectus or any ~~Permitted~~ Issuer Free Writing Prospectus shall have been ~~issued; no proceedings for the issuance of such an order shall have been~~ initiated or ~~threatened~~threatened by the Commission; and ~~any request~~ all requests for additional information on the part of the Commission ~~for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise)~~ shall have been complied with to the ~~Agent's satisfaction~~reasonable satisfaction of the Agents. (b) ~~The Agent~~ On every date specified in Section 3(k) hereof, Sidley Austin llp, counsel for the Agents, shall ~~not~~ have ~~advised~~ furnished to the ~~Company that~~ Agents such written opinion or opinions, dated as of such date, with respect to such matters as the Agents may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters. In giving their opinion, Sidley Austin llp may rely as to matters involving the laws of the State of Maryland upon the opinion of Dentons US LLP or such other counsel reasonably satisfactory to the Agents. (i) On every date specified in Section 3(k) hereof, Dentons US LLP, counsel for the Company, shall have furnished to the Agents written opinions, dated as of such date, substantially in the forms attached hereto as Exhibits A‑1 and A‑2, respectively, and to such further effect as counsel to the Agents may reasonably request; and (ii) on every date specified in Section 3(l) hereof, Dentons US LLP, counsel for the Company, shall have furnished to the Agents a letter, dated as of such date, substantially in the form attached hereto as Exhibits A‑3, and to such further effect as counsel to the Agents may reasonably request. (d) At the dates specified in Section 3(l) hereof, Ernst & Young LLP, and any other independent accountants who have certified the financial statements included or incorporated by reference in the Registration Statement, the ~~Base Prospectus~~General Disclosure Package and the Prospectus shall have furnished to the Agents a letter or letters dated as of the date of delivery thereof and addressed to the Agents in form and substance reasonably satisfactory to the Agents and their counsel, containing statements and information of the ~~Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which,~~ type ordinarily included in ~~the Agent's opinion, is material, or omits~~ accountants’ “comfort letters” to ~~state a fact which, in the Agent's opinion, is material and is required to be stated therein or is necessary to make the statements therein (i)~~ underwriters with respect to the financial statements included or incorporated by reference in the Registration Statement, ~~not misleading~~ the General Disclosure Package and ~~(ii) with respect to~~ the ~~Base~~ Prospectus~~, the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading~~. (ce) ~~Except as set forth or contemplated~~ On each date specified in ~~the Base Prospectus~~Section 3(j) hereof, the ~~Prospectus~~ Agents shall have received a certificate of the President and Chief Executive Officer and the Senior Vice President and Chief Financial Officer of the Company, dated as of the date thereof, to the effect that (A) the Registration Statement has been declared effective under the 1933 Act and no stop order suspending the effectiveness of the Registration Statement or no order preventing or suspending the use of any ~~Permitted~~ Issuer Free Writing ~~Prospectus~~Prospectus or the Prospectus has been issued, ~~subsequent~~ and no proceedings for such purpose or pursuant to Section 8A of the 1933 Act have been taken or are, to his or her knowledge, contemplated or threatened by the Commission; (B) there has been no Material Adverse Effect, or any development or occurrence that would reasonably be expected to have a Material Adverse Effect, since the respective dates as of which information is given ~~therein~~in the Registration Statement, the General Disclosure Package and the Prospectus as each is then amended or supplemented, (C) the representations and warranties of the Company ~~shall not have incurred any material liabilities or obligations, direct or contingent, or~~ contained herein are true and correct as of such date and (D) the Company has complied with all of the agreements entered into in connection with the transactions contemplated herein and in any ~~material transactions,~~ Terms Agreement and satisfied all conditions on its part to be performed or ~~declared~~ satisfied. (f) Since the date of the latest audited financial statements then included or ~~paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change~~ incorporated by reference in the ~~capital stock~~Registration Statement, ~~or any issuance of options, warrants, convertible securities or other rights to purchase~~ the ~~capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in~~ General Disclosure Package and the Prospectus), ~~or any material change in the short-term or long-term debt, of the Company, or any~~ no Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described above, in the Agent's judgment, makes it impractical or inadvisable to offer or deliver the Sharesshall have occurred. (dg) The Company shall have ~~performed each~~ complied with the provisions of ~~its obligations under~~ Section ~~4(p). (e~~3(c) The Company shall have performed each of its obligations under Section 4(q). (f) The Company shall have performed each of its obligations under Section 4(r). (g) FINRA shall not have raised any objection hereof with respect to the ~~fairness and reasonableness~~ timely furnishing of ~~the terms and arrangements under this Agreement~~prospectuses. (h) On such dates as reasonably requested by the Agents, the Company shall have conducted due diligence sessions, in form and substance reasonably satisfactory to the Agents. (i) All filings with the Commission required by Rule 424 ~~under~~ of the ~~Securities~~ 1933 Act Regulations to have been filed by ~~the~~ each Applicable Time or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule ~~424.~~ 424 (~~i) The Company shall have furnished to Agent and the Agent's counsel such additional documents, certificates and evidence as they may have reasonably requested~~without reliance on Rule 424(b)(8)). (j) ~~Trading in the Common Shares shall not have been suspended on the NASDAQ Capital Market.~~ The Shares shall have been ~~listed and authorized~~ approved for ~~trading~~ listing on the ~~NASDAQ Capital Market prior to~~ NYSE as of the ~~first Settlement Date, and satisfactory evidence~~ date of ~~such actions~~ this Agreement. (k) Counsel for the Agents shall have been ~~provided~~ furnished with such documents and opinions as they may reasonably require in order to evidence the ~~Agent and its counsel, which may include oral confirmation from a representative~~ accuracy of any of the ~~NASDAQ Capital Market. All such opinions~~representations or warranties, ~~certificates~~or the fulfillment of any of the conditions, ~~letters~~ contained herein or in any applicable Terms Agreement; and ~~other documents will be~~ all proceedings taken by the Company in ~~compliance~~ connection with the ~~provisions hereof only if they are~~ issuance and sale of the Shares as contemplated herein or in any applicable Terms Agreement and in connection with the other transactions contemplated by this Agreement or any such Terms Agreement shall be reasonably satisfactory in form and substance to ~~Agent~~ the Agents and counsel for the ~~Agent's counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably request~~Agents.

Appears in 1 contract

Samples: Equity Offering Sales Agreement (One Liberty Properties Inc)

Conditions of Agent’s Obligations. The Company, the Mid-Tier Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and the issuance of the Exchange Shares and all obligations of the Agent hereunder are subject to ~~(i)~~ the accuracy ofof the representations and warranties of the Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, ~~each Bringdown Date, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein, (ii)~~ to the performance by the ~~Company~~ Company, the Mid-Tier Company, the MHC and the Bank of ~~its~~ their obligations ~~hereunder~~ hereunder, and ~~(iii)~~ to the following ~~additional~~ further conditions: (a) If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no No stop order suspending the effectiveness of the Registration ~~Statement~~ Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any ~~part thereof, any Rule 462(b)~~ prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or ~~any amendment thereof, nor suspending~~ proceedings therefor initiated or ~~preventing~~ to the ~~use~~ knowledge of the ~~Base Prospectus~~Company threatened by the Commission, the ~~Prospectus~~ FRB or the New York Department and no order suspending the sale of the Securities in any ~~Permitted Free Writing Prospectus~~ jurisdiction shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's satisfaction. (b) ~~The~~ At the Closing Time, the Agent shall ~~not~~ have ~~advised~~ received: (1) The favorable opinion, dated as of the ~~Company~~ Closing Time, of Lxxx Xxxxxx, PC, counsel for the Company, the Mid-Tier Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, as attached hereto as Exhibit A. (2) The favorable opinion, dated as of the Closing Time, of Silver, Fxxxxxxx, Txxx & Txxxxxx LLP, counsel for the Agent, as to such matters as the Agent may reasonably require. (3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Lxxx Xxxxxx, PC and Silver, Fxxxxxxx, Txxx & Txxxxxx LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration ~~Statement~~Statement (except for financial statements and schedules and other financial, pro forma or statistical data included therein, as to which counsel need make no statement), at the ~~Base Prospectus~~time it became effective, ~~the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains~~ contained an untrue statement of a material fact ~~which, in the Agent's opinion, is material,~~ or ~~omits~~ omitted to state a material fact ~~which, in the Agent's opinion, is material and is~~ required to be stated therein or is necessary to make the statements therein not misleading or that the Prospectus (~~i) with respect~~ except for financial statements and schedules and other financial, pro forma or statistical data included therein, as to which counsel need make no statement), at the time the Registration ~~Statement~~Statement became effective, ~~not misleading and (ii) with respect to~~ as of the ~~Base Prospectus,~~ date of the Prospectus or ~~any Permitted Free Writing Prospectus~~at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, Lxxx Xxxxxx, PC and Silver, Fxxxxxxx, Txxx & Txxxxxx LLP may rely as to matters of fact on certificates of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank and certificates of public officials. Silver, Fxxxxxxx, Taff & Txxxxxx LLP may also rely on the opinion of Lxxx Xxxxxx, PC. (c) ~~Except as set forth or contemplated~~ At the Closing Time referred to in ~~the Base Prospectus~~Section 2 hereof, the ~~Prospectus~~ Company, the Mid-Tier Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable FRB Regulations and applicable New York Banking Law and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company, the Mid-Tier Company, the MHC or the Bank by the FRB, the New York Department or any ~~Permitted Free Writing Prospectus~~other regulatory authority other than those which the FRB or any regulatory authority permits to be completed after the Conversion. (d) At the Closing Time, ~~subsequent to~~ there shall not have been, since the date hereof or since the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in Registration Statement and the Prospectus), ~~or any material change in the short-term or long-term debt, of the Company, or~~ any Material Adverse ~~Effect or any development that would be reasonably likely to result in a Material Adverse Effect (~~Effect, whether or not arising in the ordinary course of business), and the Agent shall have received a certificate of the Chief Executive Officer of the Company, the Mid-Tier Company, the MHC and the Bank and the Chief Financial Officer of the Company, the Mid-Tier Company, the MHC and the Bank, dated as of Closing Time, to the effect that (i) there has been no such Material Adverse Effect, (ii) there shall have been no material transaction entered into by the Company, the Mid-Tier Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the Mid-Tier Company, the MHC or the Bank, as set forth in the Registration Statement, the Prospectus and the General Disclosure Package other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice (iii) neither the Company, the Mid-Tier Company, the MHC nor the Bank shall have received from the FRB, the New York Department or the FDIC any order or direction (oral or written) to make any material ~~loss~~ change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the Mid-Tier Company, the MHC or the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the Mid-Tier Company, the MHC and the Bank have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company, the Mid-Tier Company, the MHC or the Bank, threatened by ~~strike~~the Commission, ~~fire~~(vii) no order suspending the FRB’s approval of the Conversion Application, ~~flood~~the Holding Company Application or the transactions contemplated thereby or the New York Department’s approval of the New York Application or the transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, ~~earthquake~~to the knowledge of the Company, ~~accident~~ the Mid-Tier Company, the MHC or the Bank, threatened by the FRB or the New York Department and no person has sought to obtain regulatory or judicial review of the action of the FRB in approving the Plan in accordance with the FRB Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Conversion Application or the Holding Company Application or the New York Department in approving the New York Application, and (viii) no order suspending the Subscription and Community Offering or the Syndicated Community Offering or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the FRB or the New York Department. (e) At the Closing Time, the Agent shall have received a certificate of the Chief Executive Officer of the Mid-Tier Company, the Company and the Bank and the Chief Financial Officer of the Mid-Tier Company, the Company and the Bank, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement, the Prospectus and the General Disclosure Package; (ii) based on each of their knowledge, the Registration Statement, the Prospectus and the General Disclosure Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; (iii) based on each of their knowledge, the financial statements and other ~~calamity~~financial information included in the Registration Statement, the Prospectus and the General Disclosure Package fairly present the financial condition and results of operations of the Mid-Tier Company and the Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus; (iv) they are responsible for establishing and maintaining disclosure controls and procedures; (v) they have designed such disclosure controls and procedures to ensure that material information relating to the Mid-Tier Company and the Bank is made known to them; (vi) they have evaluated the effectiveness of their disclosure controls and procedures as they relate to the Mid-Tier Company and the Bank; and (vii) they have disclosed to Bxxxxxx & Co., LLP and the audit committee (A) all significant deficiencies in the design or operation of disclosure controls and procedures which are reasonably likely to adversely affect the Mid-Tier Company’s and the Bank’s ability to record, process, summarize, and report financial data, and have identified for the Mid-Tier Company’s and the Bank’s independent registered public accounting firm any material weaknesses in disclosure controls and procedures and (B) any fraud, whether or not ~~covered by insurance~~material, ~~incurred by~~ that involves management or other employees who have a significant role in the Mid-Tier Company’s and the Bank’s disclosure controls and procedures. (f) As of the date hereof, the Agent shall have received from Bxxxxxx & Co., LLP a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the Company, the Mid-Tier Company, the MHC and the Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the FRB Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Sxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and Bxxxxxx & Co., LLP set forth in detail in such letters, nothing has come to their attention which causes them to believe that, except as set forth in such letters, (A) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” or under “Recent Developments” in the Prospectus and the General Disclosure Package do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited consolidated financial statements included in the Registration Statement, the Prospectus and the General Disclosure Package, (B) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the Mid-Tier Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or stockholders’ equity of the Mid-Tier Company, in each case as compared with the amounts shown in the March 31, 2016 unaudited consolidated statements of financial condition presented under the “Recent Developments” caption in the Registration Statement or, (C) during the period from March 31, 2016 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Company, except in all instances for increases or decreases which the Registration Statement, the Prospectus and the General Disclosure Package disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information that are included in the Registration Statement, Prospectus and the General Disclosure Package and that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the Mid-Tier Company, the MHC and the Bank identified in such letter. (g) The “lock-up” agreements, each substantially in the form of Exhibit B hereto, between the Agent and the persons set forth on Exhibit C hereto, relating to sales and certain other dispositions of shares of Common Stock, Mid-Tier Company Common Stock or certain other securities, shall be delivered to the Agent on or before the date hereof and shall be in full force and effect on the Closing Time. (h) At the Closing Time, the Agent shall have received from Bxxxxxx & Co., LLP a letter dated as of the Closing Time, to the effect that they reaffirm the statements made in the letters furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time. (i) At the Closing Time, all notices required to be filed to permit the Securities and the Exchange Shares to be quoted on the OTC Pink Marketplace shall have been timely filed. (j) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal. (k) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Exchange Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent. (l) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in ~~any such case described above, in~~ the judgment of the Agent~~'s judgment~~, ~~makes~~ are so material and adverse as to make it ~~impractical~~ impracticable to market the Securities or ~~inadvisable~~ to ~~offer~~ enforce contracts, including subscriptions or ~~deliver~~ orders, for the Shares. (d) The Company shall have performed each of its obligations under Section 4(p). (e) The Company shall have performed each of its obligations under Section 4(q). (f) The Company shall have performed each of its obligations under Section 4(r). (g) FINRA shall not have raised any objection to the fairness and reasonableness sale of the ~~terms~~ Securities, and ~~arrangements under this Agreement.~~ (hii) ~~All filings with~~ trading generally on any of the ~~Commission required by Rule 424 under~~ NYSE MKT, the ~~Securities Act to have been filed by~~ New York Stock Exchange or the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished to Agent and the Agent's counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common Shares Nasdaq shall not have been ~~suspended on the NASDAQ Capital Market. The Shares~~ suspended, and minimum or maximum prices for trading shall not have been ~~listed and authorized~~ fixed, or maximum ranges for ~~trading on~~ prices for securities have been required, by any of said Exchanges or by order of the ~~NASDAQ Capital Market prior to the first Settlement Date~~Commission or any other governmental authority, and ~~satisfactory evidence of such actions~~ a banking moratorium shall not have been ~~provided to the Agent and its counsel~~declared by either Federal, which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably requestMaryland or New York authorities.

Appears in 1 contract

Samples: Agency Agreement (FSB Bancorp, Inc.)

Conditions of Agent’s Obligations. The obligations of the Agent hereunder are subject to (i) the accuracy in all material respects of, as of the date hereof, each Bringdown Date, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein, (ii) the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no stop order suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Base Prospectus, Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, Prospectus Supplement, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's ’s satisfaction. (b) The Agent shall not have advised the Company that the Registration Statement, the Base Prospectus, Prospectus Supplement, the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which, in the Agent's ’s opinion, is material, or omits to state a fact which, in the Agent's ’s opinion, is material and is required to be stated therein or is necessary to make the statements therein (i) with respect to the Registration Statement, not misleading and (ii) with respect to the Base Prospectus, Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading. (c) Except as set forth or contemplated in the Base Prospectus, Prospectus Supplement, the Prospectus and any Permitted Free Writing Prospectus, subsequent to the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding stock options or warrants that are disclosed in the Prospectus), or any material change in the short-term or long-term debt, of the Company, or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake, epidemic, pandemic, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described above, in the Agent's ’s judgment, makes it impractical or inadvisable to offer or deliver the Shares. (d) The Company shall have performed each of its obligations under ~~Section 4(p~~Sections 3(p), (q), (r), (s), (t) and (u). (e~~) The Company shall have performed each of its obligations under Section 4(q). (f) The Company shall have performed each of its obligations under Section 4(r). (g~~) FINRA shall not have raised any objection to the fairness and reasonableness of the terms and arrangements under this Agreement. (hf) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (ig) The Company shall have furnished to the Agent and the Agent's ’s counsel such additional documents, certificates and evidence as they may have reasonably requested. (jh) Trading in the Common ~~Shares~~ Stock shall not have been suspended on the NASDAQ Capital Market. The Shares shall have been listed and authorized for trading on the NASDAQ Capital Market prior to the first Settlement Date, and satisfactory evidence of such actions shall have been provided to the Agent and its counsel, which may include oral confirmation from a representative of Nasdaq. (i) The Company shall have in place a directors and officers insurance policy, in form and substance reasonably satisfactory to the ~~NASDAQ Capital Market~~Agent. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Agent and the Agent's ’s counsel. The Company will furnish the Agent with such conformed copies of such opinions, certificates, letters and other documents as the Agent shall reasonably request.

Appears in 1 contract

Samples: At the Market Issuance Sales Agreement (Eightco Holdings Inc.)

Conditions of Agent’s Obligations. The obligations of the Agent hereunder are subject to (i) the accuracy of, as of the date hereof, each Bringdown Date, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein, (ii) the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no stop order suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's ’s satisfaction. (b) The Agent shall not have advised the Company that the Registration Statement, the Base Prospectus, the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which, in the Agent's ’s opinion, is material, or omits to state a fact which, in the Agent's ’s opinion, is material and is required to be stated therein or is necessary to make the statements therein (i) with respect to the Registration Statement, not misleading and (ii) with respect to the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading. (c) Except as set forth or contemplated in the Base Prospectus, the Prospectus and any Permitted Free Writing Prospectus, subsequent to the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in the Prospectus), or any material change in the short-term or long-term debt, of the Company, or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described above, in the Agent's ’s judgment, makes it impractical or inadvisable to offer or deliver the Shares. (d) The Company shall have performed each of its obligations under Section 4(p). (e) The Company shall have performed each of its obligations under Section 4(q). (f) The Company shall have performed each of its obligations under Section 4(r). (g) FINRA shall not have raised any objection to the fairness and reasonableness of the terms and arrangements under this Agreement. (h) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished to Agent and the Agent's ’s counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common Shares shall not have been suspended on the ~~NASDAQ Capital Market~~NYSE American. The Shares shall have been listed and authorized for trading on the ~~NASDAQ Capital Market~~ NYSE American prior to the first Settlement Date, and satisfactory evidence of such actions shall have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the ~~NASDAQ Capital Market~~NYSE American. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's ’s counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably request.

Appears in 1 contract

Samples: Equity Distribution Agreement (Top Ships Inc.)

Conditions of Agent’s Obligations. The obligations of the Agent hereunder are subject to (i) the accuracy of, as of the date hereof, each Bringdown Date, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein, (ii) the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no stop order suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's ’s satisfaction. (b) The Agent shall not have advised the Company that the Registration Statement, the Base Prospectus, the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which, in the Agent's ’s opinion, is material, or omits to state a fact which, in the Agent's ’s opinion, is material and is required to be stated therein or is necessary to make the statements therein (i) with respect to the Registration Statement, not misleading and (ii) with respect to the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading. (c) Except as set forth or contemplated in the Base Prospectus, the Prospectus and any Permitted Free Writing Prospectus, subsequent to the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in the Registration Statement or the Prospectus), or any material change in the short-term or long-term debt, of the Company, or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described above, in the Agent's ’s judgment, makes it impractical or inadvisable to offer or deliver the Shares. (d) The Company shall have performed each of its obligations under Section 4(p). (e) The Company shall have performed each of its obligations under Section 4(q). (f) The Company shall have performed each of its obligations under Section 4(r). (g) FINRA shall not have raised any objection to the fairness and reasonableness of the terms and arrangements under this Agreement. (h) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished to Agent and the Agent's ’s counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common Shares shall not have been suspended on the NASDAQ Capital Market. The Shares shall have been listed and authorized for trading on the NASDAQ Capital Market prior to the first Settlement Date, and satisfactory evidence of such actions shall have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's ’s counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably request.

Appears in 1 contract

Samples: Equity Distribution Agreement (Castor Maritime Inc.)

Conditions of Agent’s Obligations. The obligations of the Agent hereunder are subject to ~~(i)~~ the ~~accuracy of~~accuracy, as when made and on the date of this Agreement, each Registration Statement Amendment Date, each Company Periodic Report Date, each Request Date, each Applicable Time and each Delivery Date, of the ~~date hereof, each Bringdown Date,~~ representations and ~~each Time of Sale (in each case, as if made at such date), and compliance with, all representations,~~ warranties ~~and agreements~~ of the Company contained herein, ~~(ii)~~ to the performance by the Company of its obligations ~~hereunder~~ hereunder, and ~~(iii)~~ to each of the following additional terms and conditions: (a) If The Prospectus shall have been filed with the ~~filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required~~ Commission pursuant to Rule 424(b) under the Securities Act on or prior to the ~~Rules~~ date hereof and ~~Regulations,~~ the Company shall have ~~filed~~ complied with all other requirements applicable to the Prospectus or any supplement thereto under Rule 424(b) (~~or such amendment or supplement) or such Permitted~~ without giving effect to Rule 424(b)(8)). The Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus ~~with~~ used or referred to after the ~~Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no~~ date hereof. No stop order suspending the effectiveness of the Registration Statement or ~~any part thereof, any Rule 462(b) Registration Statement,~~ preventing or ~~any amendment thereof, nor~~ suspending ~~or preventing~~ the use of the ~~Base Prospectus, the~~ Prospectus or any ~~Permitted~~ Issuer Free Writing Prospectus shall have been ~~issued;~~ issued and no ~~proceedings~~ proceeding or examination for ~~the issuance of~~ such ~~an order~~ purpose shall have been initiated or ~~threatened~~threatened by the Commission; and any request of the Commission for inclusion of additional information ~~(to be included~~ in the Registration ~~Statement~~Statement or the Prospectus (including, ~~the Base Prospectus~~without limitation, ~~the Prospectus,~~ in any ~~Permitted Free Writing Prospectus~~ document incorporated by reference therein) or ~~otherwise)~~ otherwise shall have been complied ~~with~~ with; and the Commission shall not have notified the Company of any objection to the ~~Agent's satisfaction~~use of the form of the Registration Statement or any post-effective amendment thereto. (b) The Agent shall not have ~~advised~~ discovered and disclosed to the Company that the Registration Statement, the ~~Base Prospectus,~~ Prospectus or the ~~Prospectus~~Pricing Disclosure Package, or any amendment or supplement thereto, ~~or any Permitted Free Writing Prospectus,~~ contains an untrue statement of a fact which, in the opinion of Sidley Austin LLP, counsel for the Agent~~'s opinion~~, is ~~material,~~ material or omits to state a fact which, in the ~~Agent's opinion~~opinion of such counsel, is material ~~and~~ or is required to be stated therein or is necessary to make the statements therein (i) with respect to the Registration Statement, not misleading and (ii) with respect to the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading. (c) ~~Except as set forth or contemplated in~~ All corporate proceedings and other legal matters incident to the ~~Base Prospectus~~authorization, form and validity of this Agreement, the Stock, the Registration Statement, the Prospectus and any ~~Permitted~~ Issuer Free Writing ~~Prospectus, subsequent~~ Prospectus and all other legal matters relating to this Agreement and the ~~respective dates as of which information is given therein, the Company~~ transactions contemplated hereby shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in the Prospectus), or any material change in the short-term or long-term debt, of the Company, or any Material Adverse Effect or any development that would be reasonably ~~likely~~ satisfactory in all material respects to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described above, in counsel for the Agent~~'s judgment~~, ~~makes it impractical or inadvisable to offer or deliver~~ and the Shares. (d) The Company shall have performed each of its obligations under Section 4(p). (e) The Company shall have performed each of its obligations under Section 4(q). (f) The Company shall have performed each of its obligations under Section 4(r). (g) FINRA shall not have raised any objection to the fairness and reasonableness of the terms and arrangements under this Agreement. (h) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished to ~~Agent~~ such counsel all documents and ~~the Agent's counsel such additional documents, certificates and evidence as~~ information that they may ~~have~~ reasonably ~~requested~~request to enable them to pass upon such matters. (j) Trading in the Common Shares shall not have been suspended on the NASDAQ Capital Market. The Shares shall have been listed and authorized for trading on the NASDAQ Capital Market prior to the first Settlement Date, and satisfactory evidence of such actions shall have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably request.

Appears in 1 contract

Samples: Sales Agreement (Delphi Financial Group Inc/De)

Conditions of Agent’s Obligations. The Company, the Bank, the MHC and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to ~~(i)~~ the accuracy ofof the representations and warranties of the Company, the Bank and the MHC herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Bank and the MHC made pursuant to the provisions hereof, ~~each Bringdown Date, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein, (ii)~~ to the performance by the Company and the Bank of ~~its~~ their obligations ~~hereunder~~ hereunder, and ~~(iii)~~ to the following ~~additional~~ further conditions: (a) If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no No stop order suspending the effectiveness of the Registration ~~Statement~~ Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any ~~part thereof, any Rule 462(b)~~ prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or ~~any amendment thereof~~proceedings therefor initiated or, ~~nor suspending or preventing~~ to the ~~use~~ knowledge of the ~~Base Prospectus~~Company, threatened by the ~~Prospectus~~ Commission or the FRB and no order suspending the sale of the Securities in any ~~Permitted Free Writing Prospectus~~ jurisdiction shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's satisfaction. (b) ~~The~~ At the Closing Time, the Agent shall ~~not~~ have ~~advised~~ received: (1) The favorable opinion, dated as of the ~~Company~~ Closing Time, of Xxxx Xxxxxx, PC, counsel for the Company, the Bank and the MHC, in form and substance satisfactory to counsel for the Agent, as attached hereto as Exhibit A. (2) In addition to giving their opinion required by subsections (b)(l) of this Section, Xxxx Xxxxxx, PC shall additionally state that nothing has come to their attention that would lead them to believe that the Registration ~~Statement~~Statement (except for financial statements and schedules and other financial, pro forma or statistical data included therein, as to which counsel need make no statement), at the ~~Base Prospectus~~time it became effective, ~~the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains~~ contained an untrue statement of a material fact ~~which, in the Agent's opinion, is material,~~ or ~~omits~~ omitted to state a material fact ~~which, in the Agent's opinion, is material and is~~ required to be stated therein or is necessary to make the statements therein not misleading or that the Prospectus (~~i) with respect~~ except for financial statements and schedules and other financial, pro forma or statistical data included therein, as to which counsel need make no statement), at the time the Registration ~~Statement~~Statement became effective, ~~not misleading and (ii) with respect to~~ as of the ~~Base Prospectus,~~ date of the Prospectus or ~~any Permitted Free Writing Prospectus~~at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving its opinion, Xxxx Xxxxxx, PC may rely as to matters of fact on certificates of officers and directors of the Company, the MHC and the Bank and certificates of public officials. (c) ~~Except as set forth or contemplated~~ At the Closing Time referred to in ~~the Base Prospectus~~Section 2 hereof, the ~~Prospectus~~ Company, the Bank and the MHC shall have completed in all material respects the conditions precedent to the Reorganization in accordance with the Plan, the applicable MHC Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Reorganization imposed upon the Company, the Bank or the MHC by the FRB, the WDFI or the FDIC or any ~~Permitted Free Writing Prospectus~~other regulatory authority other than those which the FRB, ~~subsequent~~ the WDFI or the FDIC or any such other regulatory authority permit to be completed after the Reorganization. (d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in Registration Statement and the Prospectus), ~~or any material change in the short-term or long-term debt, of the Company, or~~ any Material Adverse ~~Effect or any development that would be reasonably likely to result in a Material Adverse Effect (~~Effect, whether or not arising in the ordinary course of business), and the Agent shall have received a certificate of the Chief Executive Officer of the Company, the Bank and the MHC and the Chief Financial Officer of the Company, the Bank and the MHC, dated as of Closing Time, to the effect that (i) there has been no such Material Adverse Effect, (ii) there shall have been no material transaction entered into by the Company, the Bank or the MHC from the latest date as of which the financial condition of the Company or the Bank, as set forth in the Registration Statement, the Prospectus and the General Disclosure Package other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) none of the Company, the Bank or the MHC shall have received from the FRB, the WDFI or the FDIC any order or direction (oral or written) to make any material ~~loss~~ change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the Bank or the MHC, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the Bank and the MHC have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company, the Bank or the MHC, threatened by ~~strike~~the Commission, ~~fire~~(vii) no order suspending the FRB’s approval of the Holding Company Application, ~~flood~~the WDFI’s approval of the WDFI Applications and the FDIC’s approval or non-objection of the FDIC Applications or the transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, ~~earthquake~~to the knowledge of the Company, ~~accident~~ the Bank or the MHC, threatened by the FRB, the WDFI or the FDIC and no person has sought to obtain regulatory or judicial review of the action of the WDFI in approving the Plan in accordance with the MHC Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Holding Company Application, and (viii) no order suspending the Offerings or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the WDFI. (e) At the Closing Time, the Agent shall have received a certificate of the Chief Executive Officer of the Company, the Bank and the MHC and the Chief Financial Officer of the Company, the Bank and the MHC, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement, the Prospectus and the General Disclosure Package; (ii) based on each of their knowledge, the Registration Statement, the Prospectus and the General Disclosure Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; (iii) based on each of their knowledge, the financial statements and other ~~calamity~~financial information included in the Registration Statement, the Prospectus and the General Disclosure Package fairly present the financial condition and results of operations of the Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus; (iv) they are responsible for establishing and maintaining disclosure controls and procedures; (v) they have designed such disclosure controls and procedures to ensure that material information relating to the Company and the Bank is made known to them; (vi) they have evaluated the effectiveness of their disclosure controls and procedures; and (vii) they have disclosed to Xxxxxxx and the audit committee (A) all significant deficiencies in the design or operation of disclosure controls and procedures which are reasonably likely to adversely affect the Bank’s ability to record, process, summarize, and report financial data, and have identified for the Company’s and the Bank’s independent registered public accounting firm any material weaknesses in disclosure controls and procedures and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s and the Bank’s disclosure controls and procedures. (f) As of the date hereof, the Agent shall have received from Xxxxxxx a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHC, the Company and the Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the MHC Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act; (ii) it is their opinion that the financial statements and supporting schedules included in the Registration Statement and covered by ~~insurance~~their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) stating in effect that, ~~incurred~~ on the basis of certain agreed upon procedures (but not an audit in accordance with generally accepted auditing standards) consisting of a review (in accordance with Auditing Standard No. 4105) of the latest available unaudited interim financial statements of the Bank prepared by the Company and the Bank, a reading of the minutes of the meetings of the Board of Directors of the Bank and committees thereof and consultations with officers of the Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited financial statements included in the Prospectus are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (B) except as stated in such letter, during the period from the date of the latest unaudited financial statements included in the Prospectus to a specified date not more than three (3) business days prior to the date of the Prospectus, there was any increase in borrowings (defined as securities sold under agreements to repurchase and any other form of debt other than deposits), non-performing loans or special mention loans or decrease in the deposits, total assets, total loans, the allowance for loan losses or equity, or there was any decrease in total interest income, net interest income, net interest income after the provision for loan losses, income (loss) before income taxes, or net income (loss) of the Bank for the period commencing immediately after the period covered by the latest unaudited income statement included in the Prospectus and ended not more than three (3) business days prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iv) stating that, in addition to the audit referred to in its opinion included in the Prospectus and the performance of the procedures referred to in clause (iii) of this subsection (f), they have compared with the general accounting records of the Bank, which are subject to the internal controls of the accounting system of the Bank and other data prepared by the Bank from accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request, and they have found such amounts and percentages to be in agreement therewith (subject to rounding). (g) At the Closing Time, the Agent shall have received from Xxxxxxx a letter dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than three (3) days prior to the Closing Time. (h) At the Closing Time, the Securities shall have been approved for quotation on the OTC Pink Marketplace. (i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, (i) confirming that said firm is independent of the Company, the Bank and the MHC and is experienced and expert in the area of corporate appraisals, (ii) stating in effect that the Appraisal complies in all material respects with the applicable requirements of the MHC Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Company, the Bank and the MHC expressed in the Appraisal as most recently updated, remains in effect.. (j) At or prior to the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to advise the Agent with respect to the issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities shall be satisfactory in form and substance to the Agent and counsel for the Agent. (k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in ~~any such case described above, in~~ the judgment of the Agent~~'s judgment~~, ~~makes~~ are so material and adverse as to make it ~~impractical~~ impracticable to market the Securities or ~~inadvisable~~ to ~~offer~~ enforce contracts, including subscriptions or ~~deliver~~ orders, for the Shares. (d) The Company shall have performed each of its obligations under Section 4(p). (e) The Company shall have performed each of its obligations under Section 4(q). (f) The Company shall have performed each of its obligations under Section 4(r). (g) FINRA shall not have raised any objection to the fairness and reasonableness sale of the ~~terms~~ Securities, and ~~arrangements under this Agreement.~~ (hii) ~~All filings with~~ trading generally on any of the ~~Commission required by Rule 424 under~~ NYSE MKT, the ~~Securities Act to have been filed by~~ New York Stock Exchange, the ~~Settlement Date shall have been made within~~ Nasdaq Stock Market or the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished to Agent and the Agent's counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common Shares OTC Pink Marketplace shall not have been ~~suspended on the NASDAQ Capital Market. The Shares~~ suspended, and minimum or maximum prices for trading shall not have been ~~listed and authorized~~ fixed, or maximum ranges for ~~trading on~~ prices for securities have been required, by any of said Exchanges or by order of the ~~NASDAQ Capital Market prior to the first Settlement Date~~Commission or any other governmental authority, and ~~satisfactory evidence of such actions~~ a banking moratorium shall not have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably requestdeclared by either Federal or Wisconsin authorities.

Appears in 1 contract

Samples: Agency Agreement (Marathon Bancorp, Inc. /MD/)

Conditions of Agent’s Obligations. The obligations of the ~~Agent~~ Agents hereunder are subject to (i) the accuracy of, as of the date hereof, the date of the first Transaction Notice, each Bringdown Date, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein, (ii) the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no stop order suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the ~~Agent's~~ Agents’ satisfaction. (b) The ~~Agent~~ Agents shall not have advised the Company that the Registration Statement, the Base Prospectus, the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which, in the ~~Agent's~~ Agents’ opinion, is material, or omits to state a fact which, in the ~~Agent's~~ Agents’ opinion, is material and is required to be stated therein or is necessary to make the statements therein (i) with respect to the Registration Statement, not misleading and (ii) with respect to the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading. (c) Except as set forth or contemplated in the Base Prospectus, the Prospectus and any Permitted Free Writing Prospectus, subsequent to the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants or equity awards granted under the Company’s equity compensation plans, in each case that are disclosed in the Prospectus), or any material change in the short-term or long-term ~~debt~~debt outside the ordinary course of business, of the Company, or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described above, in the ~~Agent's~~ Agents’ judgment, makes it impractical or inadvisable to offer or deliver the Shares. (d) The Company shall have performed each of its obligations under Section 4(p). (e) The Company shall have performed each of its obligations under Section 4(q). (f) The Company shall have performed each of its obligations under Section 4(r). (g) FINRA shall not have raised any objection to the fairness and reasonableness of the terms and arrangements under this Agreement. (h) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished to ~~Agent~~ Agents and the ~~Agent's~~ Agents’ counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common ~~Shares~~ Stock shall not have been suspended on the NASDAQ Capital Market. The Shares shall have been listed and authorized for trading on the NASDAQ Capital Market prior to the first Settlement Date, and satisfactory evidence of such actions shall have been provided to the ~~Agent~~ Agents and ~~its~~ their counsel, which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to ~~Agent~~ Agents and the ~~Agent's~~ Agents’ counsel. The Company will furnish ~~Agent~~ Agents with such conformed copies of such opinions, certificates, letters and other documents as ~~Agent~~ Agents shall reasonably request.

Appears in 1 contract

Samples: Equity Distribution Agreement (Imperial Petroleum Inc./Marshall Islands)

Conditions of Agent’s Obligations. The obligations of the Agent hereunder are subject to (i) the accuracy ~~of, as~~ of the ~~date hereof, each Bringdown Date,~~ representations and ~~each Time of Sale (in each case, as if made at such date), and compliance with, all representations,~~ warranties ~~and agreements~~ on the part of the Company ~~contained herein~~on the date hereof and as of each Registration Statement Amendment Date, Company Earnings Report Date, Company Periodic Report Date, Applicable Time and Settlement Date, (ii) the performance by the Company of its obligations hereunder and (iii) the following additional ~~conditions~~conditions precedent: (ai) If No stop order with respect to the ~~filing~~ effectiveness of the ~~Prospectus~~Registration Statement shall have been issued under the 1933 Act or the 1933 Act Regulations or proceedings initiated under Section 8(d) or 8(e) of the 0000 Xxx and no order directed at any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or to the knowledge of the Company or the Agent of the initiation or threatening of any ~~amendment or supplement~~ proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto, or ~~any Permitted Free Writing Prospectus~~modifications thereof, is if any, shall 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 not misleading; (iii) the Prospectus and all amendments or supplements thereto, or modifications thereof, if any, and the General Disclosure Package shall 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 the light of the circumstances under ~~the Securities Act or the Rules and Regulations~~which they are made, not misleading; (iv) the Company shall have filed the ~~Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus~~ Prospectus, and any amendments and supplements thereto, with the Commission (including the information required by Rule 430B) in the manner and within the time period so required ~~(without reliance on~~ by the 1933 Act and the 1933 Act Regulations, and any post-effective amendment thereto containing the information required by Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no stop order suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus 430B shall have ~~been issued; no proceedings for the issuance of such an order shall have been initiated or threatened;~~ become effective and ~~any request of the Commission for additional information~~ (v) all material required to be ~~included in~~ filed by the ~~Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise~~Company pursuant to Rule 433(d) shall have been ~~complied~~ filed with to the ~~Agent's satisfaction~~Commission within the applicable time periods prescribed for such filings under Rule 433. (b) ~~The Agent~~ In the judgment of the Agent, there shall not have ~~advised the Company that the Registration Statement, the Base Prospectus, the Prospectus, or~~ occurred any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which, in the Agent's opinion, is material, or omits to state a fact which, in the Agent's opinion, is material and is required to be stated therein or is necessary to make the statements therein (i) with respect to the Registration Statement, not misleading and (ii) with respect to the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleadingMaterial Adverse Effect. (c) ~~Except~~ The Company shall cause to be furnished to the Agent, on every date specified in Section 3(n) hereof (except as ~~set forth or contemplated~~ provided in the ~~Base Prospectus~~last sentence of Section 3(n)), the ~~Prospectus~~ opinion and ~~any Permitted Free Writing Prospectus~~negative assurance letter of Ropes & Xxxx LLP, ~~subsequent~~ or other counsel reasonably satisfactory to the ~~respective dates~~ Agent, addressed to the Agent, dated as of ~~which information is given therein~~such date, in form reasonably satisfactory to the ~~Company shall not have incurred any material liabilities or obligations~~Agent and its counsel, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change substantially in the ~~capital stock, or any issuance~~ form of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in the Prospectus), or any material change in the short-term or long-term debt, of the Company, or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described above, in the Agent's judgment, makes it impractical or inadvisable to offer or deliver the SharesExhibit C-1 and Exhibit C-2 attached hereto. (d) The Company shall ~~have performed each~~ cause to be furnished to the Agent, on every date specified in Section 3(o) hereof (except as provided in the last sentence of Section 3(o)), from PricewaterhouseCoopers LLP (and any other independent registered public accounting firm whose report is incorporated by reference into the Registration Statement), letters dated the date of delivery thereof and addressed to the Agent in form and substance satisfactory to the Agent, its ~~obligations under Section 4(p~~counsel, PricewaterhouseCoopers LLP (and, as applicable, the independent registered public accounting firm(s)), containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements of the Company and its subsidiaries included or incorporated by reference in the Registration Statement. (e) The Company shall furnish to the Agent, on each date specified in Section 3(m) hereof (except as provided in the last sentence of Section 3(m)), a certificate of two of its executive officers to the effect that (i) the representations and warranties of the Company as set forth in this Agreement are true and correct as of the date of such certificate (the “Certificate Date”), (ii) the Company shall have performed ~~each~~ such of its obligations under this Agreement as are to be performed at or before each such Certificate Date and (iii) the conditions set forth in paragraphs (a) and (b) of this Section ~~4(q)~~4 have been met. (f) On the date hereof, the Agent shall have received the opinion of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, or other counsel reasonably satisfactory to the Agent, dated the date hereof and addressed to the Agent in form and substance reasonably satisfactory to the Agent. On every date specified in Section 3(n) hereof, the Agent shall have received a negative assurance letter of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, or other counsel reasonably satisfactory to the Agent, dated as of such date, in form and substance satisfactory to the Agent. (g) All filings with the Commission required by Rule 424 of the 1933 Act Regulations to have been filed by each Applicable Time or related Settlement Date, as the case may be, shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)). (h) The Settlement Shares shall have been approved for listing on the NYSE, subject to official notice of issuance. The Agent acknowledges that as of the date of this Agreement, 4,500,000 shares of Common Stock have been approved for listing on the NYSE. (i) The Company shall have ~~performed~~ furnished to the Agent such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement, the Prospectus and the General Disclosure Package as of each ~~of its obligations under Section 4(r)~~Settlement Date as the Agent may reasonably request. (gj) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the 1933 Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations. (k) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. (hl) ~~All filings with~~ No amendment or supplement to the ~~Commission required~~ Registration Statement or Prospectus, including documents deemed to be incorporated by ~~Rule 424 under~~ reference therein, shall be filed to which the ~~Securities Act to have been filed by the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424~~Agent objects in writing. (im) ~~The Company shall have furnished to Agent~~ Except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the ~~Agent's counsel such additional documents~~Prospectus, ~~certificates~~ since the later of the time of execution of this Agreement and ~~evidence as they may have reasonably requested. (j) Trading in~~ the ~~Common Shares~~ most recent Applicable Time, there shall not have ~~been suspended on the NASDAQ Capital Market. The Shares~~ occurred any downgrading, nor shall any notice, announcement or written indication have been ~~listed and authorized for trading on~~ given or made of any intended or potential downgrading in the ~~NASDAQ Capital Market prior to~~ rating accorded any securities of or guaranteed by the ~~first Settlement Date, and satisfactory evidence of such actions shall have been provided to the Agent and its counsel, which may include oral confirmation from a representative~~ Company by any “nationally recognized statistical rating organization,” as that term is defined in Rule 436(g)(2) of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably request1933 Act Regulations.

Appears in 1 contract

Samples: Equity Distribution Agreement (Affiliated Managers Group, Inc.)

Conditions of Agent’s Obligations. The Company, the Bank, the MHC and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to ~~(i)~~ the accuracy ofof the representations and warranties of the Company, the Bank and the MHC herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Bank and the MHC made pursuant to the provisions hereof, ~~each Bringdown Date, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein, (ii)~~ to the performance by the Company and the Bank of ~~its~~ their obligations ~~hereunder~~ hereunder, and ~~(iii)~~ to the following ~~additional~~ further conditions: (a) If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no No stop order suspending the effectiveness of the Registration ~~Statement~~ Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any ~~part thereof, any Rule 462(b)~~ prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or ~~any amendment thereof~~proceedings therefor initiated or, ~~nor suspending or preventing~~ to the ~~use~~ knowledge of the ~~Base Prospectus~~Company, threatened by the ~~Prospectus~~ Commission or the FRB and no order suspending the sale of the Securities in any ~~Permitted Free Writing Prospectus~~ jurisdiction shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's satisfaction. (b) ~~The~~ At the Closing Time, the Agent shall ~~not~~ have ~~advised~~ received: (1) The favorable opinion, dated as of the ~~Company~~ Closing Time, of Lxxx Xxxxxx, PC, counsel for the Company, the Bank and the MHC, in form and substance satisfactory to counsel for the Agent, as attached hereto as Exhibit A. (2) In addition to giving their opinion required by subsections (b)(l) of this Section, Lxxx Xxxxxx, PC shall additionally state that nothing has come to their attention that would lead them to believe that the Registration ~~Statement~~Statement (except for financial statements and schedules and other financial, pro forma or statistical data included therein, as to which counsel need make no statement), at the ~~Base Prospectus~~time it became effective, ~~the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains~~ contained an untrue statement of a material fact ~~which, in the Agent's opinion, is material,~~ or ~~omits~~ omitted to state a material fact ~~which, in the Agent's opinion, is material and is~~ required to be stated therein or is necessary to make the statements therein not misleading or that the Prospectus (~~i) with respect~~ except for financial statements and schedules and other financial, pro forma or statistical data included therein, as to which counsel need make no statement), at the time the Registration ~~Statement~~Statement became effective, ~~not misleading and (ii) with respect to~~ as of the ~~Base Prospectus,~~ date of the Prospectus or ~~any Permitted Free Writing Prospectus~~at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinion, Lxxx Xxxxxx, PC may rely as to matters of fact on certificates of officers and directors of the Company, the MHC and the Bank and certificates of public officials. (c) ~~Except as set forth or contemplated~~ At the Closing Time referred to in ~~the Base Prospectus~~Section 2 hereof, the ~~Prospectus~~ Company, the Bank and the MHC shall have completed in all material respects the conditions precedent to the Reorganization in accordance with the Plan, the applicable MHC Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Reorganization imposed upon the Company, the Bank or the MHC by the FRB, the WDFI or the FDIC or any ~~Permitted Free Writing Prospectus~~other regulatory authority other than those which the FRB, ~~subsequent~~ the WDFI or the FDIC or any such other regulatory authority permit to be completed after the Reorganization. (d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in Registration Statement and the Prospectus), ~~or any material change in the short-term or long-term debt, of the Company, or~~ any Material Adverse ~~Effect or any development that would be reasonably likely to result in a Material Adverse Effect (~~Effect, whether or not arising in the ordinary course of business), and the Agent shall have received a certificate of the Chief Executive Officer of the Company, the Bank and the MHC and the Chief Financial Officer of the Company, the Bank and the MHC, dated as of Closing Time, to the effect that (i) there has been no such Material Adverse Effect, (ii) there shall have been no material transaction entered into by the Company, the Bank or the MHC from the latest date as of which the financial condition of the Company or the Bank, as set forth in the Registration Statement, the Prospectus and the General Disclosure Package other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) none of the Company, the Bank or the MHC shall have received from the FRB, the WDFI or the FDIC any order or direction (oral or written) to make any material ~~loss~~ change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the Bank or the MHC, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the Bank and the MHC have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company, the Bank or the MHC, threatened by ~~strike~~the Commission, ~~fire~~(vii) no order suspending the FRB’s approval of the Holding Company Application, ~~flood~~the WDFI’s approval of the WDFI Applications and the FDIC’s approval of the FDIC Applications or the transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, ~~earthquake~~to the knowledge of the Company, ~~accident~~ the Bank or the MHC, threatened by the FRB, the WDFI or the FDIC and no person has sought to obtain regulatory or judicial review of the action of the FRB in approving the Plan in accordance with the MHC Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Holding Company Application, and (viii) no order suspending the Offerings or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the FRB. (e) At the Closing Time, the Agent shall have received a certificate of the Chief Executive Officer of the Company, the Bank and the MHC and the Chief Financial Officer of the Company, the Bank and the MHC, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement, the Prospectus and the General Disclosure Package; (ii) based on each of their knowledge, the Registration Statement, the Prospectus and the General Disclosure Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; (iii) based on each of their knowledge, the financial statements and other ~~calamity~~financial information included in the Registration Statement, the Prospectus and the General Disclosure Package fairly present the financial condition and results of operations of the Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus; (iv) they are responsible for establishing and maintaining disclosure controls and procedures; (v) they have designed such disclosure controls and procedures to ensure that material information relating to the Company and the Bank is made known to them; (vi) they have evaluated the effectiveness of their disclosure controls and procedures; and (vii) they have disclosed to Bxxxxxx and the audit committee (A) all significant deficiencies in the design or operation of disclosure controls and procedures which are reasonably likely to adversely affect the Bank’s ability to record, process, summarize, and report financial data, and have identified for the Company’s and the Bank’s independent registered public accounting firm any material weaknesses in disclosure controls and procedures and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s and the Bank’s disclosure controls and procedures. (f) As of the date hereof, the Agent shall have received from Bxxxxxx a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the Company and the Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the MHC Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Sxxxxxxx-Xxxxx Act; (ii) it is their opinion that the financial statements and supporting schedules included in the Registration Statement and covered by ~~insurance~~their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) stating in effect that, ~~incurred~~ on the basis of certain agreed upon procedures (but not an audit in accordance with generally accepted auditing standards) consisting of a review (in accordance with Auditing Standard No. 4105) of the latest available unaudited interim financial statements of the Bank prepared by the Company and the Bank, a reading of the minutes of the meetings of the Board of Directors of the Bank and committees thereof and consultations with officers of the Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited financial statements included in the Prospectus are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (B) except as stated in such letter, during the period from the date of the latest unaudited financial statements included in the Prospectus to a specified date not more than three (3) business days prior to the date of the Prospectus, there was any increase in borrowings (defined as securities sold under agreements to repurchase and any other form of debt other than deposits), non-performing loans or special mention loans or decrease in the deposits, total assets, total loans, the allowance for loan losses or equity, or there was any decrease in total interest income, net interest income, net interest income after the provision for loan losses, income (loss) before income taxes, or net income (loss) of the Bank for the period commencing immediately after the period covered by the latest unaudited income statement included in the Prospectus and ended not more than three (3) business days prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (iv) stating that, in addition to the audit referred to in its opinion included in the Prospectus and the performance of the procedures referred to in clause (iii) of this subsection (f), they have compared with the general accounting records of the Bank, which are subject to the internal controls of the accounting system of the Bank and other data prepared by the Bank from accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request, and they have found such amounts and percentages to be in agreement therewith (subject to rounding). (g) At the Closing Time, the Agent shall have received from Bxxxxxx a letter dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than three (3) days prior to the Closing Time. (h) At the Closing Time, the Securities shall have been approved for quotation on the OTC Pink Marketplace. (i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, (i) confirming that said firm is independent of the Company, the Bank and the MHC and is experienced and expert in the area of corporate appraisals, (ii) stating in effect that the Appraisal complies in all material respects with the applicable requirements of the MHC Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Company, the Bank and the MHC expressed in the Appraisal as most recently updated, remains in effect.. (j) At or prior to the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to advise the Agent with respect to the issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities shall be satisfactory in form and substance to the Agent and counsel for the Agent. (k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in ~~any such case described above, in~~ the judgment of the Agent~~'s judgment~~, ~~makes~~ are so material and adverse as to make it ~~impractical~~ impracticable to market the Securities or ~~inadvisable~~ to ~~offer~~ enforce contracts, including subscriptions or ~~deliver~~ orders, for the Shares. (d) The Company shall have performed each of its obligations under Section 4(p). (e) The Company shall have performed each of its obligations under Section 4(q). (f) The Company shall have performed each of its obligations under Section 4(r). (g) FINRA shall not have raised any objection to the fairness and reasonableness sale of the ~~terms~~ Securities, and ~~arrangements under this Agreement.~~ (hii) ~~All filings with~~ trading generally on any of the ~~Commission required by Rule 424 under~~ NYSE MKT, the ~~Securities Act to have been filed by~~ New York Stock Exchange, the ~~Settlement Date shall have been made within~~ Nasdaq Stock Market or the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished to Agent and the Agent's counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common Shares OTC Pink Marketplace shall not have been ~~suspended on the NASDAQ Capital Market. The Shares~~ suspended, and minimum or maximum prices for trading shall not have been ~~listed and authorized~~ fixed, or maximum ranges for ~~trading on~~ prices for securities have been required, by any of said Exchanges or by order of the ~~NASDAQ Capital Market prior to the first Settlement Date~~Commission or any other governmental authority, and ~~satisfactory evidence of such actions~~ a banking moratorium shall not have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably requestdeclared by either Federal or Wisconsin authorities.

Appears in 1 contract

Samples: Agency Agreement (Marathon Bancorp, Inc. /MD/)

Conditions of Agent’s Obligations. The obligations of the Agent hereunder are subject to (i) the accuracy ofin all material respects of all representations and warranties of the Company contained herein, as of the date hereof, as of the date of the first Transaction Notice, each Bringdown Date, and each Time of Sale (in each case, as if made at such date), except that such representations and warranties shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented relating to such Shares on such date, and ~~compliance with,~~ except that representations and warranties made as of a specific date shall be accurate in all ~~representations, warranties and agreements~~ material respects as of ~~the Company contained herein~~such specific date), (ii) the performance by the Company of its obligations ~~hereunder~~ hereunder, (iii) the completion by the Agent of a due diligence review satisfactory to the Agent in its reasonable judgment and (~~iii~~iv) the following additional conditions: (a) If ~~the~~ filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall have become and remain effective; no stop order suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's ’s satisfaction. (b) The Agent shall not have advised the Company that the Registration Statement, the Base Prospectus, the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which, in the Agent's ’s opinion, is material, or omits to state a fact which, in the Agent's ’s opinion, is material and is required to be stated therein or is necessary to make the statements therein (i) with respect to the Registration Statement, not misleading and (ii) with respect to the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading. (c) Except as set forth or contemplated in the ~~Base Prospectus, the~~ Prospectus and any Permitted Free Writing Prospectus, as amended and supplemented, subsequent to the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, not in the ordinary course of business, or declared or paid any dividends or made any distribution of any kind with respect to its capital ~~stock~~ stock, and there shall not have been any material change in the capital stock, or any material issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding ~~options~~ options, preferred stock, notes or warrants that are disclosed in the Registration Statement or the Prospectus or the issuance of securities pursuant to the Company’s equity incentive plans or employee stock purchase plans described in the Registration Statement or the Prospectus), or any material change in the short-term or long-term debt, of the Company, or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described above, in the Agent's ’s judgment, makes it impractical or inadvisable to offer or deliver the Shares. (d) The Company shall have performed each of its obligations under Section ~~4(p~~3(q). (e) The Company shall have performed each of its obligations under Section ~~4(q~~3(r). (f) The Company shall have performed each of its obligations under Section ~~4(r~~3(s). (g) FINRA shall ~~not~~ have raised ~~any~~ no objection to the fairness and reasonableness of the sales terms and ~~arrangements under this Agreement~~arrangements. (h) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished to Agent and the Agent's ’s counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the ~~Common~~ Ordinary Shares shall not have been suspended on the ~~NASDAQ Capital Market~~Exchange. The Shares shall have been listed and authorized for trading on the ~~NASDAQ Capital Market~~ Exchange prior to the first Settlement Date, and satisfactory evidence of such actions shall have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the ~~NASDAQ Capital Market~~Exchange. (k) On the date of the first Transaction Notice and thereafter on each Bringdown Date, Xxxxx Xxxxxx LLP, counsel for the Agent, shall not have reasonably determined that the Base Prospectus, the Prospectus, or any Permitted Free Writing Prospectus, as of such date, includes an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's ’s counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably request.

Appears in 1 contract

Samples: Equity Distribution Agreement (VivoPower International PLC)

Conditions of Agent’s Obligations. The obligations of the Agent hereunder are subject to (i) the accuracy of, as of the date hereof, each Bringdown Date, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein, (ii) the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) If ~~the~~ filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no stop order suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's satisfaction. (b) The Agent shall not have advised the Company that the Registration Statement, the Base Prospectus, the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which, in the Agent's opinion, is material, or omits to state a fact which, in the Agent's opinion, is material and is required to be stated therein or is necessary to make the statements therein (i) with respect to the Registration Statement, not misleading and (ii) with respect to the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading. (c) Except as set forth or contemplated in the ~~Base Prospectus, the~~ Prospectus and any Permitted Free Writing Prospectus, subsequent to the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of ~~the exercise of any currently outstanding options or warrants that are disclosed in the Prospectus~~Exempt Issuances), or any material change in the short-term or long-term debt, of the Company, or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described above, in the Agent's judgment, makes it impractical or inadvisable to offer or deliver the Shares. (d) The Company shall have performed each of its obligations under Section ~~4(p~~3(q). (e) The Company shall have performed each of its obligations under Section ~~4(q~~3(r). (f) The Company shall have performed each of its obligations under Section ~~4(r~~3(s). (g) The Company shall have performed each of its obligations under Section 3(t). (h) FINRA shall ~~not~~ have raised ~~any~~ no objection to the fairness and reasonableness of the underwriting terms and ~~arrangements under this Agreement~~arrangements. (hi) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (ij) The Company shall have furnished to Agent and the Agent's counsel such additional documents, certificates and evidence as they may have reasonably requested. (jk) Trading in the Common ~~Shares~~ Stock shall not have been suspended on the NASDAQ Capital Market. The Shares shall have been listed and authorized for trading on the NASDAQ Capital Market prior to the first Settlement Date, and satisfactory evidence of such actions shall have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably request.

Appears in 1 contract

Samples: Equity Distribution Agreement (MGO Global Inc.)

Conditions of Agent’s Obligations. The obligations of the --------------------------------- Agent ~~hereunder are~~ to sell the Stock as provided herein shall be subject to ~~(i)~~ the ~~accuracy of~~accuracy, as of the date hereof, and as of each ~~Bringdown Date~~Closing Date for any Pricing Period contemplated under this Agreement, of the representations and ~~each Time of Sale (in each case, as if made at such date), and compliance with, all representations,~~ warranties ~~and agreements~~ of the Company ~~contained~~ herein, ~~(ii)~~ to the performance by the Company of its obligations hereunder and ~~(iii)~~ to the following additional conditions: (a) If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no No stop order suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus shall have been ~~issued;~~ issued and no ~~proceedings~~ proceeding for ~~the issuance of such an order~~ that purpose shall have been ~~initiated~~ instituted or, to the knowledge of the Company or ~~threatened;~~ the Agent, threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration ~~Statement,~~ Statement or the ~~Base Prospectus, the Prospectus, any Permitted Free Writing~~ Prospectus or otherwise) shall have been complied with to the Agent's satisfaction. (b) The Agent shall not have advised the Company that the Registration ~~Statement, the Base Prospectus, the~~ Statement or Prospectus, or any amendment or supplement thereto, ~~or any Permitted Free Writing Prospectus,~~ contains an untrue statement of fact ~~which,~~ that in the Agent's ~~opinion,~~ reasonable opinion is material, or omits to state a fact ~~which,~~ that in the Agent's ~~opinion,~~ reasonable opinion is material and is required to be stated therein or is necessary to make the statements therein (i) with respect to the Registration Statement, not misleading and (ii) with respect to the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading. (c) Except as ~~set forth or~~ contemplated in the ~~Base Prospectus, the Prospectus and any Permitted Free Writing~~ Prospectus, subsequent to the respective dates as of which information is given ~~therein~~in the Registration Statement and the Prospectus, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any ~~change~~ material change, on a consolidated basis, in the capital ~~stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital~~ stock ~~(other than as a result~~ of the ~~exercise of any currently outstanding options or warrants that are disclosed in the Prospectus)~~Company and its subsidiaries, or any material ~~change in the short-term or long-term debt~~adverse change, ~~of the Company, or any Material Adverse Effect~~ or any development that ~~would~~ may reasonably be ~~reasonably likely~~ expected to ~~result in~~ cause a ~~Material Adverse Effect (whether or not arising~~ material adverse change, in the ~~ordinary course~~ condition (financial or other), business, prospects, net worth or results of ~~business)~~operations of the Company and its subsidiaries, or any ~~material loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred by~~ change in the rating assigned to any securities of the Company~~, the effect of which, in any such case described above, in the Agent's judgment, makes it impractical or inadvisable to offer or deliver the Shares~~. (d) The ~~Company~~ Agent shall have ~~performed each~~ received at the date of ~~its obligations under~~ the commencement of the first Pricing Period hereunder (the "Commencement Date") and at every other date specified in Section ~~4(p). (e~~4(m) ~~The~~ hereof, opinions of Company ~~shall have performed each~~ Counsel, dated as of ~~its obligations under Section 4(q). (f) The Company shall have performed each~~ the Commencement Date and dated as of ~~its obligations under Section 4(r). (g) FINRA shall not have raised any objection~~ such other date, respectively, to the fairness and reasonableness of the terms and arrangements under this Agreement. (h) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424.effect that: (i) The Company ~~shall~~ has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation, has full corporate power and authority to conduct its business as described in the Registration Statement and Prospectus and is duly qualified to do business in each jurisdiction set forth on a schedule thereto; to their knowledge, such jurisdictions are the only jurisdictions in which the Company's ownership or leasing of real property or conduct of its business requires such qualification; (ii) Each subsidiary of the Company has been duly incorporated and is validly existing as a corporation (or partnership, as the case may be) in good standing under the laws of the jurisdiction of its incorporation, has corporate (or partnership) power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement and Prospectus, and is duly qualified as a foreign corporation (or partnership) to transact business and is in good standing in each jurisdiction set forth on a schedule thereto; to their knowledge, such jurisdictions are the only jurisdictions in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business; all of the issued outstanding capital stock (or other equity interests) of each such subsidiary has been duly authorized and validly issued, is fully paid and nonassessable (except for the general partner interests in CMC Investment Partnership, which are assessable in accordance with its partnership agreement and applicable law), and, except for (A) a 1% general partner interest in CMC Investment Partnership held by Capstead Inc. and (B) shares of Capstead Inc. which are owned by parties other than the Company (which will be set forth in a schedule to the opinion), is owned by the Company, directly or indirectly, free and clear of any mortgage, pledge, lien, encumbrance, claim or equity; (iii) The shares of Stock have ~~furnished~~ been duly and validly authorized, and, when issued and delivered to ~~Agent~~ and paid for by the purchasers thereof pursuant to this Agreement, will be fully paid and nonassessable and conform to the description thereof in the Prospectus; and the ~~Agent's counsel such additional documents~~shareholders of the Company have no preemptive rights with respect to the Stock; all corporate action required to be taken for the authorization, ~~certificates~~ issue and ~~evidence as they may have reasonably requested.~~sale of the Stock has been validly and sufficiently taken; and the shares of Stock are the subject of an effective registration statement permitting their sale in the manner contemplated by this Agreement; (jiv) ~~Trading~~ The Registration Statement has become effective under the Act; (if applicable, the filing of the Prospectus Supplements pursuant to Rule 424(b) have been made in the ~~Common Shares shall not have~~ manner and within the time period required by Rule 424(b)); to the knowledge of such counsel no stop order suspending the effectiveness of the Registration Statement has been ~~suspended~~ issued and no proceeding for that purpose has been instituted or threatened by the Commission; (v) The Registration Statement, when it became effective, and the Prospectus and any amendment or supplement thereto, on the ~~NASDAQ Capital Market. The Shares shall have been listed~~ date of filing thereof with the Commission (and ~~authorized for trading~~ at each Closing Date on ~~the NASDAQ Capital Market~~ or prior to the ~~first Settlement Date~~date of the opinion), complied as to form in all material respects with the requirements of the Act and the Rules and Regulations; and the documents incorporated by reference in the Registration Statement or Prospectus or any amendment or supplement thereto, when filed with the Commission under the Exchange Act, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and ~~satisfactory evidence of such actions shall have been provided to~~ the ~~Agent~~ rules and ~~its counsel, which may include oral confirmation from a representative~~ regulations of the ~~NASDAQ Capital Market. All such opinions~~Commission thereunder; (vi) The description in the Registration Statement and Prospectus of statutes, ~~certificates~~legal and governmental proceedings, ~~letters~~ contracts and other documents are accurate in all material respects and fairly present the information required to be shown; and such counsel do not know of any statutes or legal or governmental proceedings required to be described in the Prospectus that are not described as required, or of any contracts or documents of a character required to be described in the Registration Statement or Prospectus (or required to be filed under the Exchange Act if upon such filing they would be incorporated by reference therein) or to be filed as exhibits to the Registration Statement that are not described and filed as required; (vii) This Agreement has been duly authorized, executed and delivered by the Company; (viii) The execution, delivery and performance of this Agreement by the Company and the consummation of the transactions contemplated herein by the Company do not and will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any agreement or instrument known to such counsel to which the Company or any of its subsidiaries is a party or by which it is bound or to which any of the property of the Company or any of its subsidiaries is subject except for such breaches or defaults that would not in the aggregate have a material adverse effect on the Company's ability to perform its obligations under this Agreement or on the condition, financial or otherwise, or the earnings business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, nor will such action result in the violation of the Company's charter or by-laws, or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of its properties; and no consent, approval, authorization or order of, or filing with, any court or governmental agency or body is required for the consummation of the transactions contemplated by this Agreement in connection with the issuance or sale of the Stock by the Company, except such as have been obtained under the Act and such as may be required under state securities or blue sky laws in connection with the sale and distribution of the Stock by the Agent; (ix) Except for permits and similar authorizations required under the securities or blue sky laws of certain states, no consent, waiver, approval, authorization or other order of any regulatory body, administrative agency or other governmental body is legally required for the sale of the Stock by the Agent as contemplated hereby and by the Prospectus; (x) Such counsel knows of no actions, suits or proceedings pending or threatened against or affecting the Company or any of its subsidiaries or the business, properties, business prospects, condition (financial or otherwise) or results of operations of the Company or any of its subsidiaries, or any of their respective officers in their capacities as such, before or by any Federal or state or foreign court, commission, regulatory body, wherein an unfavorable ruling, decision or finding might materially and adversely affect the Company or any of its subsidiaries or its business, properties, business prospects, condition (financial or otherwise) or results of operations; and (xi) For all taxable years beginning September 5, 1985 (the date of the Company's initial public offering of common stock) and ending December 31, 1994, Capstead REIT (as defined below) has met the requirements for qualification as a REIT under the Code. Capstead REIT will be able to qualify as a REIT for the taxable year beginning January 1, 1995, provided that after the date hereof, Capstead REIT continues to be organized and operated as described in ~~compliance~~ the Registration Statement and according to representations made to us in a certificate of an officer of the Company and therefore continues to satisfy the income tests, and distribution, shareholder, recordkeeping and other applicable REIT requirements under the Code. "Capstead REIT" means the Company, as aggregated with such wholly- owned subsidiaries as were in existence during the period for which reference is made. The information presented in the Registration Statement under the caption "Taxation," to the extent it constitutes matters of law or legal conclusions, is accurate in all material respects. In addition, such counsel shall state that such counsel has no reason to believe that either the Registration Statement, at the time it (including each Post-Effective Amendment thereto) became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus and any amendments or supplements thereto, on the date of filing thereof with the ~~provisions hereof only if~~ Commission and at the Commencement Date and at each Closing Date on or prior to the date of the opinion, included an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they ~~are reasonably satisfactory~~ were made, not misleading; it being understood that such counsel need express no opinion as to the financial statements or other financial and statistical data included in ~~form and substance to Agent and~~ any of the ~~Agent's counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other~~ documents ~~as Agent shall reasonably request~~mentioned in this paragraph.

Appears in 1 contract

Samples: Sales Agency Agreement (Capstead Mortgage Corp)

Conditions of Agent’s Obligations. The obligations of the Agent hereunder are subject to (i) the accuracy of, as of the date hereof, each Bringdown Date, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein, (ii) the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) If ~~the~~ filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no stop order suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's ’s satisfaction. (b) The Agent shall not have advised the Company that the Registration Statement, the Base Prospectus, the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which, in the Agent's ’s opinion, is material, or omits to state a fact which, in the Agent's ’s opinion, is material and is required to be stated therein or is necessary to make the statements therein (i) with respect to the Registration Statement, not misleading and (ii) with respect to the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading. (c) Except as set forth or contemplated in ~~the Base Prospectus,~~ the Prospectus and any Permitted Free Writing Prospectus, subsequent to the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding ~~options~~ options, preferred stock, notes or warrants that are disclosed in the Registration Statement or the Prospectus or the issuance of securities pursuant to the Company’s equity incentive plans or employee stock purchase plans described in the Registration Statement or the 11097250.1 210679-10009 29 Prospectus), or any material change in the short-term or long-term debt, of the Company, or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described above, in the Agent's ’s judgment, makes it impractical or inadvisable to offer or deliver the Shares. (d) The Company shall have performed each of its obligations under Section ~~4(p~~3(q). (e) The Company shall have performed each of its obligations under Section ~~4(q~~3(r). (f) The Company shall have performed each of its obligations under Section ~~4(r~~3(s). (g) FINRA shall ~~not~~ have raised ~~any~~ no objection to the fairness and reasonableness of the underwriting terms and ~~arrangements under this Agreement~~arrangements. (h) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished to Agent and the Agent's ’s counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common ~~Shares~~ Stock shall not have been suspended on the NASDAQ Capital Market. The Shares shall have been listed and authorized for trading on the NASDAQ Capital Market prior to the first Settlement Date, and satisfactory evidence of such actions shall have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's ’s counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably request.

Appears in 1 contract

Samples: Equity Distribution Agreement (Cerecor Inc.)

Conditions of Agent’s Obligations. The Company, the Mid-Tier Company, the Bank, the MHC and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to ~~(i)~~ the accuracy ofof the representations and warranties of the Company, the Mid-Tier Company, the Bank and the MHC herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Mid-Tier Company, the Bank and the MHC made pursuant to the provisions hereof, ~~each Bringdown Date, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein, (ii)~~ to the performance by the ~~Company~~ Company, the Mid-Tier Company, the Bank and the MHC of ~~its~~ their obligations ~~hereunder~~ hereunder, and ~~(iii)~~ to the following ~~additional~~ further conditions: (a) If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no No stop order suspending the effectiveness of the Registration ~~Statement~~ Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any ~~part thereof, any Rule 462(b)~~ prospectus included in a post- effective amendment to the Registration Statement, shall have been issued or ~~any amendment thereof~~proceedings therefor initiated or, ~~nor suspending or preventing~~ to the ~~use~~ knowledge of the ~~Base Prospectus~~Company, threatened by the Commission, the ~~Prospectus~~ Department or the FRB and no order suspending the sale of the Securities in any ~~Permitted Free Writing Prospectus~~ jurisdiction shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's satisfaction. (b) ~~The~~ At the Closing Time, the Agent shall ~~not~~ have ~~advised~~ received: (1) The favorable opinion, dated as of the ~~Company~~ Closing Time, of Xxxx Xxxxxx, PC, counsel for the Company, the Mid-Tier Company, the Bank and the MHC, in form and substance satisfactory to counsel for the Agent, as attached hereto as Exhibit A. (2) The favorable opinion, dated as of the Closing Time, of Silver, Xxxxxxxx, Xxxx & Xxxxxxx LLP, counsel for the Agent, as to such matters as the Agent may reasonably require. (3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Xxxx Xxxxxx, PC and Silver, Xxxxxxxx, Xxxx & Xxxxxxx LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration ~~Statement~~Statement (except for financial statements and schedules and other financial, pro forma, appraisal or statistical data included therein, as to which counsel need make no statement), at the ~~Base Prospectus~~time it became effective, ~~the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains~~ contained an untrue statement of a material fact ~~which, in the Agent's opinion, is material,~~ or ~~omits~~ omitted to state a material fact ~~which, in the Agent's opinion, is material and is~~ required to be stated therein or is necessary to make the statements therein not misleading or that the Prospectus (~~i) with respect~~ except for financial statements and schedules and other financial, pro forma, appraisal or statistical data included therein, as to which counsel need make no statement), at the time the Registration ~~Statement~~Statement became effective, ~~not misleading and (ii) with respect to~~ as of the ~~Base Prospectus,~~ date of the Prospectus or ~~any Permitted Free Writing Prospectus~~at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, Xxxx Xxxxxx, PC and Xxxxxx, Xxxxxxxx, Xxxx & Xxxxxxx LLP may rely as to matters of fact on certificates of officers and directors of the Company and the Bank and certificates of public officials. Silver, Xxxxxxxx, Xxxx & Xxxxxxx LLP may also rely on the opinion of Xxxx Xxxxxx, PC. (c) ~~Except as set forth or contemplated~~ At the Closing Time referred to in ~~the Base Prospectus~~Section 2 hereof, the ~~Prospectus~~ Company, the Mid-Tier Company, the Bank and the MHC shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations, the applicable FRB Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company, the Mid-Tier Company, the Bank or the MHC by the Department, the FRB or any ~~Permitted Free Writing Prospectus~~other regulatory authority other than those which the Department, ~~subsequent~~ the FRB or any such other regulatory authority permit to be completed after the consummation of the Conversion. (d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in Registration Statement and the Prospectus), ~~or any material change in the short-term or long-term debt, of the Company, or~~ any Material Adverse ~~Effect or any development that would be reasonably likely to result in a Material Adverse Effect (~~Effect, whether or not arising in the ordinary course of business), ~~or any~~ and the Agent shall have received a certificate of the Chief Executive Officer of the Company, the Mid-Tier Company, the Bank and the MHC and the Treasurer of the Company, the Mid-Tier Company, the Bank and the MHC, dated as of Closing Time, to the effect that (i) there has been no such Material Adverse Effect, (ii) there shall have been no material ~~loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred~~ transaction entered into by the Company, the Mid-Tier Company, the Bank or the MHC from the latest date as of which the financial condition of the Company, the Mid-Tier Company, the Bank or the MHC, as set forth in the Registration Statement, the Prospectus and the General Disclosure Package other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) none of the Company, the Mid-Tier Company, the Bank or the MHC shall have received from the FRB, the Department or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which would materially and adversely affect the business, financial condition, results of operations or prospects of the Company, the Mid-Tier Company, the Bank or the MHC, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the Mid-Tier Company, the Bank and the MHC have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company, the Mid-Tier Company, the Bank and the MHC, threatened by the Commission, (vii) no order suspending the FRB’s approval of the Holding Company Application or the transactions contemplated thereby or the Department’s or the FRB’s approval of the Conversion Applications, as applicable, or the transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company, the Mid-Tier Company, the Bank or the MHC, threatened by the FRB or the Department and no person has sought to obtain regulatory or judicial review of the action of the Department or the FRB in approving the Plan in accordance with the Conversion Regulations nor has any person sought to obtain regulatory or judicial review of the action of the Department or the FRB in approving the Conversion Applications, as applicable, or the FRB in approving the Holding Company Application, and (viii) no order suspending the Subscription and Community Offerings or the Syndicated Offering or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the Department or the FRB. (e) At the Closing Time, the Agent shall have received a certificate of the Chief Executive Officer of the Company, the Mid-Tier Company, the Bank and the MHC and the Treasurer of the Company, the Mid-Tier Company, the Bank and the MHC, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement, the Prospectus and the General Disclosure Package; (ii) based on each of their knowledge, the Registration Statement, the Prospectus and the General Disclosure Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the consolidated financial statements and other financial information included in the Registration Statement, the Prospectus and the General Disclosure Package fairly present the financial condition and results of operations of the MHC, the Mid-Tier Company and the Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus. (f) As of the date hereof, the Agent shall have received from Xxxxxx Xxxxx a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the Company, the Mid-Tier Company, the Bank and the MHC within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the Conversion Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinion therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and Xxxxxx Xxxxx set forth in detail in such letter, nothing has come to their attention which causes them to believe that, except as set forth in such letter, (A) the unaudited amounts of net interest income and net loss set forth under “Selected Financial and Other Data” or under “Recent Developments” in the Prospectus and the General Disclosure Package do not agree with the amounts set forth in unaudited financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited consolidated financial statements included in the Registration Statement, the Prospectus and the General Disclosure Package, (B) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the long-term or short-term debt of the Mid-Tier Company, the Bank or the MHC or any decrease in total assets, the allowance for credit losses, total deposits or equity of the Mid-Tier Company, the Bank or the MHC, in each case as compared with the amounts shown in the December 31, 2023 audited consolidated balance sheets or, (C) during the period from December 31, 2023 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for credit losses, income (loss) before income tax expense (benefit) or net income (loss) of the MHC or increases in interest expense or the provision for credit losses, except in all instances for increases or decreases which the Registration Statement, the Prospectus and the General Disclosure Package disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information that are included in the Registration Statement, Prospectus and the General Disclosure Package and that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the Mid-Tier Company, the Bank and the MHC identified in such letter. (g) At the Closing Time, the Agent shall have received from Xxxxxx Xxxxx a letter dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time. (h) At the Closing Time, the Securities shall have been approved for quotation on the OTCQB. (i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal. (j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent. (k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in ~~any such case described above, in~~ the judgment of the Agent~~'s judgment~~, ~~makes~~ are so material and adverse as to make it ~~impractical~~ impracticable to market the Securities or ~~inadvisable~~ to ~~offer~~ enforce contracts, including subscriptions or ~~deliver~~ orders, for the Shares. (d) The Company shall have performed each of its obligations under Section 4(p). (e) The Company shall have performed each of its obligations under Section 4(q). (f) The Company shall have performed each of its obligations under Section 4(r). (g) FINRA shall not have raised any objection to the fairness and reasonableness sale of the ~~terms~~ Securities, and ~~arrangements under this Agreement.~~ (hii) ~~All filings with~~ trading generally on any of the ~~Commission required by Rule 424 under~~ NYSE MKT, the ~~Securities Act to have been filed by~~ New York Stock Exchange or the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished to Agent and the Agent's counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common Shares Nasdaq Stock Market shall not have been ~~suspended on the NASDAQ Capital Market. The Shares~~ suspended, and minimum or maximum prices for trading shall not have been ~~listed and authorized~~ fixed, or maximum ranges for ~~trading on~~ prices for securities have been required, by any of said exchanges or by order of the ~~NASDAQ Capital Market prior to the first Settlement Date~~Commission or any other governmental authority, and ~~satisfactory evidence of such actions~~ a banking moratorium shall not have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably requestdeclared by either Federal or Wisconsin authorities.

Appears in 1 contract

Samples: Agency Agreement (EWSB Bancorp, Inc. /MD/)

Conditions of Agent’s Obligations. The obligations of the ~~Agent~~ Agents to act and continue to act as Agents hereunder ~~are~~ shall be subject to ~~(i)~~ the accuracy ~~of, as~~ of the ~~date hereof, each Bringdown Date,~~ representations and ~~each Time of Sale (in each case, as if~~ warranties made ~~at such date), and compliance with, all representations, warranties and agreements~~ herein on the part of the Company ~~contained herein~~at the date of this agreement and any Settlement Date, ~~(ii)~~ to the performance by the Company of its obligations ~~hereunder~~ to be performed hereunder, and ~~(iii)~~ to the following ~~additional~~ conditions: (a) If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no No stop order suspending the effectiveness of the Registration Statement ~~or any part thereof~~shall be in effect, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus shall have been issued; and no proceedings for that purpose shall be pending before, or threatened by, the ~~issuance of such an order~~ Commission; and the Agents shall have ~~been initiated or threatened;~~ received a certificate, dated the date of this agreement and ~~any request~~ signed by an officer of the ~~Commission~~ Company, to the effect that no such stop order is in effect and that no proceedings for ~~additional information (~~such purpose are pending before, or to ~~be included in~~ the ~~Registration Statement~~knowledge of the Company threatened by, the ~~Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's satisfaction~~Commission. (b) ~~The Agent~~ At the date of this agreement the Agents shall ~~not~~ have ~~advised~~ received from Xxxxxxx, Xxxxxxxx & Xxxxxxxxxx, L.L.P., general counsel for the ~~Company that~~ Company, Xxxx & Priest LLP, of counsel to the ~~Registration Statement~~Company, and Winthrop, Xxxxxxx, Xxxxxx & Xxxxxxx, Counsel for the ~~Base Prospectus~~Agents, opinions in substantially the ~~Prospectus~~form and substance prescribed in Schedules I, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which, in the Agent's opinion, is material, or omits to state a fact which, in the Agent's opinion, is material II and ~~is required to be stated therein or is necessary to make the statements therein~~ III hereto (i) with ~~respect to~~ such changes therein as may be agreed upon by the ~~Registration Statement~~Company and the Agents, ~~not misleading~~ with the approval of Counsel for the Agents, and (ii) ~~with respect~~ if the Prospectus relating to the ~~Base Prospectus~~Securities shall be supplemented or amended after the Prospectus shall have been filed with, or transmitted for filing to, the ~~Prospectus or any Permitted Free Writing Prospectus, in light~~ Commission pursuant to Rule 424 of the ~~circumstances~~ General Rules and Regulations under ~~which they were made~~the Securities Act (Rule 424), ~~not misleading~~with any changes therein necessary to reflect such supplementation or amendment. (c) ~~Except as set forth~~ At the date of this agreement, the Agents shall have received from Deloitte & Touche LLP a letter to the effect that (i) they are independent certified public accountants with respect to the Company, within the meaning of the Securities Act and the applicable published rules and regulations thereunder, (ii) in their opinion, the financial statements audited by them and included or ~~contemplated~~ incorporated by reference in the ~~Base Prospectus~~Prospectus comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the published rules and regulations thereunder, (iii) on the basis of a reading of the unaudited amounts of operating revenues and net income included or incorporated by reference in the Prospectus and ~~any Permitted Free Writing~~ the related financial statements from which these amounts were derived, the latest available unaudited financial statements of the Company, the minute books of the Company, and inquiries of officers of the Company who have respon- sibility for financial and accounting matters (it being understood that the foregoing procedures do not constitute an audit made in accordance with generally accepted auditing standards and they would not necessarily reveal matters of significance with respect to the comments made in such letter, and accordingly that Deloitte & Touche LLP makes no representation as to the sufficiency of such procedures for the Agents' purposes), nothing has come to their attention which caused them to believe that (A) the unaudited financial statements incorporated by reference in the Prospectus were not determined in accordance with generally accepted accounting principles applied on a basis substantially consistent with that of the corresponding amounts in the latest available audited financial statements, (B) the unaudited amounts of operating revenues and net income of the Company included or incorporated by reference in the Prospectus were not determined on a basis substantially consistent with that of the corresponding amounts in the audited statements of income incorporated by reference in the Prospectus, ~~subsequent~~ (C) for the twelve months ended as of the date of the latest available financial statements of the Company, there were any decreases in operating revenues or net income as compared with the comparable period of the preceding year, and (D) at a specified date not more than seven days prior to the ~~respective~~ date of such letter, there was any change in the capital stock of the Company, short-term bank loans, commercial paper, notes payable to Texas Utilities Company or long-term debt of the Company or decrease in its net assets, in each case as compared with amounts shown in the most recent balance sheet incorporated by reference in the Prospectus, except in all instances for changes or decreases that the Prospectus discloses have occurred or may occur, or which are occasioned by the decla- ration of a regular quarterly dividend or the acquisition of long-term debt for sinking fund purposes, or which are de- scribed in such letter, and (iv) they have compared the dollar amounts (or percentages or ratios derived from such dollar amounts) and other financial information included or incorporated by reference in the Registration Statement and the Prospectus as reasonably requested by the Agents (in each case to the extent that such dollar amounts, percentages and other financial information are derived from the general accounting records of the Company subject to the internal controls of the Company's accounting system or are derived indirectly from such records by analysis or computation) with the results obtained from inquiries, a reading of such general accounting records and other procedures specified in such letter, and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in such letter. (d) Since the most recent dates as of which information is given ~~therein,~~ in the ~~Company shall not have incurred any material liabilities~~ Registration Statement or ~~obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and~~ the Prospectus there shall not have been any material adverse change in the ~~capital stock~~business, property or ~~any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result~~ financial condition of the ~~exercise of any currently outstanding options or warrants that are disclosed in the Prospectus)~~Company and, or since such dates, there shall not have been any material ~~change in the short-term or long-term debt, of~~ transaction entered into by the Company, ~~or any Material Adverse Effect or any development that would be reasonably likely to result~~ in ~~a Material Adverse Effect (whether or not arising~~ each case other than transactions in the ordinary course of ~~business),~~ business or ~~any material loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred~~ transactions contemplated by the ~~Company,~~ Registration Statement or Prospectus and at the ~~effect~~ date of ~~which, in any such case described above, in~~ this agreement the ~~Agent's judgment, makes it impractical or inadvisable to offer or deliver the Shares. (d) The Company~~ Agents shall have ~~performed each~~ received a certificate to such effect, signed by an officer of ~~its obligations under Section 4(p)~~the Company. (e) ~~The Company~~ On and as of each Settlement Date, the Agents shall have ~~performed each~~ received (i) from Xxxxxxx, Xxxxxxxx & Xxxxxxxxxx, L.L.P. their opinion confirming the matters set forth in paragraph 5 of ~~its obligations under Section 4(q)~~Schedule I hereto, and (ii) a certificate of an officer of the Company to the effect that the resolutions of the Company's Board of Directors adopted at a meeting held are still in full force and effect and have not been altered, amended or rescinded or certifying any amendments or alterations thereto or any resolutions superseding such prior resolutions. (f) ~~The Company shall have performed each of its obligations under Section 4(r). (g) FINRA shall not have raised any objection~~ All legal proceedings to be taken in connection with the ~~fairness~~ issuance and ~~reasonableness~~ sale of the ~~terms and arrangements under this Agreement. (h) All filings with the Commission required by Rule 424 under the~~ Securities ~~Act to have been filed by the Settlement Date~~ shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished to Agent and the Agent's counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common Shares shall not have been suspended on the NASDAQ Capital Market. The Shares shall have been listed and authorized for trading on the NASDAQ Capital Market prior to the first Settlement Date, and satisfactory evidence of such actions shall have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to ~~Agent and~~ Counsel for the ~~Agent's counsel~~Agents. ~~The Company will furnish Agent~~ In case any of the conditions specified above in this Section 7 shall not have been fulfilled, the Agents shall have no further obligation to proceed with ~~such conformed copies~~ any offering, sale, or any solicitation of ~~such opinions~~purchase, ~~certificates, letters and other documents as Agent shall reasonably request~~of the Securities.

Appears in 1 contract

Samples: Distribution Agreement (Texas Utilities Electric Co)

Conditions of Agent’s Obligations. The obligations of the Agent hereunder are subject to (i) the accuracy ~~of, as~~ of the ~~date hereof, each Bringdown Date,~~ representations and ~~each Time of Sale (in each case, as if made at such date), and compliance with, all representations,~~ warranties ~~and agreements~~ on the part of the Company ~~contained herein~~on the date hereof and as of each Registration Statement Amendment Date, Company Earnings Report Date, Company Periodic Report Date, Applicable Time and Settlement Date, (ii) the performance by the Company of its obligations hereunder and (iii) the following additional ~~conditions~~conditions precedent: (ai) If No stop order with respect to the ~~filing~~ effectiveness of the ~~Prospectus~~Registration Statement shall have been issued under the 1933 Act or the 1933 Act Regulations or proceedings initiated under Section 8(d) or 8(e) of the 0000 Xxx and no order directed at any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or to the knowledge of the Company or the Agent of the initiation or threatening of any ~~amendment or supplement~~ proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto, or ~~any Permitted Free Writing Prospectus~~modifications thereof, is if any, shall 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 not misleading; (iii) the Prospectus and all amendments or supplements thereto, or modifications thereof, if any, and the General Disclosure Package shall 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 the light of the circumstances under ~~the Securities Act or the Rules and Regulations~~which they are made, not misleading; (iv) the Company shall have filed the ~~Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus~~ Prospectus, and any amendments and supplements thereto, with the Commission (including the information required by Rule 430B) in the manner and within the time period so required ~~(without reliance on~~ by the 1933 Act and the 1933 Act Regulations, and any post-effective amendment thereto containing the information required by Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no stop order suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus 430B shall have ~~been issued; no proceedings for the issuance of such an order shall have been initiated or threatened;~~ become effective and ~~any request of the Commission for additional information~~ (v) all material required to be ~~included in~~ filed by the ~~Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise~~Company pursuant to Rule 433(d) shall have been ~~complied~~ filed with to the ~~Agent's satisfaction~~Commission within the applicable time periods prescribed for such filings under Rule 433. (b) ~~The Agent~~ In the judgment of the Agent, there shall not have ~~advised the Company that the Registration Statement, the Base Prospectus, the Prospectus, or~~ occurred any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which, in the Agent's opinion, is material, or omits to state a fact which, in the Agent's opinion, is material and is required to be stated therein or is necessary to make the statements therein (i) with respect to the Registration Statement, not misleading and (ii) with respect to the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleadingMaterial Adverse Effect. (c) ~~Except~~ The Company shall cause to be furnished to the Agent, on every date specified in Section 3(n) hereof (except as ~~set forth or contemplated~~ provided in the ~~Base Prospectus~~last sentence of Section 3(n)), the ~~Prospectus~~ opinion and ~~any Permitted Free Writing Prospectus~~negative assurance letter of Ropes & Xxxx LLP, ~~subsequent~~ or other counsel reasonably satisfactory to the ~~respective dates~~ Agent, addressed to the Agent, dated as of ~~which information is given therein~~such date, in form reasonably satisfactory to the ~~Company shall not have incurred any material liabilities or obligations~~Agent and its counsel, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change substantially in the ~~capital stock, or any issuance~~ form of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in the Prospectus), or any material change in the short-term or long-term debt, of the Company, or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described above, in the Agent's judgment, makes it impractical or inadvisable to offer or deliver the SharesExhibit C-1 and Exhibit C-2 attached hereto. (d) The Company shall ~~have performed each~~ cause to be furnished to the Agent, on every date specified in Section 3(o) hereof (except as provided in the last sentence of Section 3(o)), from PricewaterhouseCoopers LLP (and any other independent registered public accounting firm whose report is incorporated by reference into the Registration Statement), letters dated the date of delivery thereof and addressed to the Agent in form and substance satisfactory to the Agent, its ~~obligations under Section 4(p~~counsel, PricewaterhouseCoopers LLP (and, as applicable, the independent registered public accounting firm(s)), containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements of the Company and its subsidiaries included or incorporated by reference in the Registration Statement. (e) The Company shall furnish to the Agent, on each date specified in Section 3(m) hereof (except as provided in the last sentence of Section 3(m)), a certificate of two of its executive officers to the effect that (i) the representations and warranties of the Company as set forth in this Agreement are true and correct as of the date of such certificate (the “Certificate Date”), (ii) the Company shall have performed ~~each~~ such of its obligations under this Agreement as are to be performed at or before each such Certificate Date and (iii) the conditions set forth in paragraphs (a) and (b) of this Section ~~4(q)~~4 have been met. (f) On the date hereof, the Agent shall have received the opinion of O’Melveny & Xxxxx LLP, or other counsel reasonably satisfactory to the Agent, dated the date hereof and addressed to the Agent in form and substance reasonably satisfactory to the Agent. On every date specified in Section 3(n) hereof, the Agent shall have received a negative assurance letter of O’Melveny & Xxxxx LLP, or other counsel reasonably satisfactory to the Agent, dated as of such date, in form and substance satisfactory to the Agent. (g) All filings with the Commission required by Rule 424 of the 1933 Act Regulations to have been filed by each Applicable Time or related Settlement Date, as the case may be, shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)). (h) The Settlement Shares shall have been approved for listing on the NYSE, subject to official notice of issuance. The Agent acknowledges that as of the date of this Agreement, 4,500,000 shares of Common Stock have been approved for listing on the NYSE. (i) The Company shall have ~~performed~~ furnished to the Agent such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement, the Prospectus and the General Disclosure Package as of each ~~of its obligations under Section 4(r)~~Settlement Date as the Agent may reasonably request. (gj) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the 1933 Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations. (k) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. (hl) ~~All filings with~~ No amendment or supplement to the ~~Commission required~~ Registration Statement or Prospectus, including documents deemed to be incorporated by ~~Rule 424 under~~ reference therein, shall be filed to which the ~~Securities Act to have been filed by the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424~~Agent objects in writing. (im) ~~The Company shall have furnished to Agent~~ Except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the ~~Agent's counsel such additional documents~~Prospectus, ~~certificates~~ since the later of the time of execution of this Agreement and ~~evidence as they may have reasonably requested. (j) Trading in~~ the ~~Common Shares~~ most recent Applicable Time, there shall not have ~~been suspended on the NASDAQ Capital Market. The Shares~~ occurred any downgrading, nor shall any notice, announcement or written indication have been ~~listed and authorized for trading on~~ given or made of any intended or potential downgrading in the ~~NASDAQ Capital Market prior to~~ rating accorded any securities of or guaranteed by the ~~first Settlement Date, and satisfactory evidence of such actions shall have been provided to the Agent and its counsel, which may include oral confirmation from a representative~~ Company by any “nationally recognized statistical rating organization,” as that term is defined in Rule 436(g)(2) of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably request1933 Act Regulations.

Appears in 1 contract

Samples: Equity Distribution Agreement (Affiliated Managers Group, Inc.)

Conditions of Agent’s Obligations. The obligations of the Agent hereunder and under any Terms Agreement are subject to (i) the ~~accuracy of~~accuracy, as of the ~~date hereof~~Effective Time, each Bringdown Date, ~~and~~ each Time of ~~Sale~~ Sale, each execution and delivery by the Company of a Terms Agreement, and each Filing Date (in each case, as if made at such date), ) of and compliance ~~with,~~ with all representations, warranties and agreements of the Company contained herein, (ii) the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) If ~~the~~ filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no stop order suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's ’s satisfaction. (b) The Agent shall not have advised the Company that the Registration Statement, the Base Prospectus, the Prospectus, or any amendment thereof or supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which, in the Agent's ’s opinion, is material, or omits to state a fact which, in the Agent's ’s opinion, is material and is required to be stated therein or is necessary to make the statements therein (i) with respect to the Registration Statement, not misleading and (ii) with respect to the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading. (c) Except as ~~set forth or~~ contemplated in the Base Prospectus, the ~~Prospectus~~ Prospectus, and any Permitted Free Writing Prospectus, subsequent to the respective dates as of which information is given ~~therein~~in the Base Prospectus, neither the Company nor any of its subsidiaries shall ~~not~~ have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital ~~stock~~ stock; and there shall not have been any change in the capital ~~stock~~stock (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants), or any material change in the short-term or long-term debt of the Company, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock ~~(other than as a result~~ of the ~~exercise of any currently outstanding options or warrants that are disclosed in the Prospectus),~~ Company or any ~~material change in the short-term or long-term debt,~~ of ~~the Company~~its subsidiaries, or any Material Adverse ~~Effect~~ Change or any development ~~that would be reasonably likely to result in~~ involving a prospective Material Adverse ~~Effect~~ Change (whether or not arising in the ordinary course of business), or any ~~material~~ loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred by the ~~Company~~Company or any subsidiary, the effect of which, in any such case described above, in the Agent's ’s judgment, makes it impractical or inadvisable to offer or deliver the ~~Shares~~Shares on the terms and in the manner contemplated in the Base Prospectus, the Prospectus, and any Permitted Free Writing Prospectus. (d) ~~The Company~~ On or after the Time of Sale (i) no downgrading shall have ~~performed each~~ occurred in the rating accorded any of the Company’s securities by any “nationally recognized statistical organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its ~~obligations under Section 4(p)~~rating of any of the Company’s securities. (e) The Company shall have performed each of its obligations under Section ~~4(q~~3(o) — 3(q). (f) ~~The Company~~ On each Bringdown Date to which a waiver does not apply, there shall have ~~performed each of its obligations under~~ been furnished to the Agent such counsel opinion as required by Section ~~4(r~~3(o), and such counsel shall have received such papers and information as they request to enable them to pass upon such matters. (g) ~~FINRA~~ The Financial Industry Regulatory Authority, Inc. shall ~~not~~ have raised ~~any~~ no objection to the fairness and reasonableness of the underwriting terms and ~~arrangements under this Agreement~~arrangements. (h) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Settlement ~~Date~~ Date, as the case may be, shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished to Agent and the Agent's ’s counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common Shares shall not have been suspended on the NASDAQ Capital Market. The Shares shall have been listed and authorized for trading on the NASDAQ Capital Market prior to the first Settlement Date, and satisfactory evidence of such actions shall have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are ~~reasonably~~ satisfactory in form and substance to Agent and the Agent's ’s counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably request.

Appears in 1 contract

Samples: Equity Distribution Agreement (Xencor Inc)

Conditions of Agent’s Obligations. The obligations of the Agent hereunder are subject to (i) the accuracy of, as of the date hereof, each Bringdown Date, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein, (ii) the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) If ~~the~~ filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no stop order suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's satisfaction. (b) The Agent shall not have advised the Company that the Registration Statement, the Base Prospectus, the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which, in the Agent's opinion, is material, or omits to state a fact which, in the Agent's opinion, is material and is required to be stated therein or is necessary to make the statements therein (i) with respect to the Registration Statement, not misleading and (ii) with respect to the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading. (c) Except as set forth or contemplated in the ~~Base Prospectus, the~~ Prospectus and any Permitted Free Writing Prospectus, subsequent to the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding ~~options~~ options, preferred stock, notes or warrants that are disclosed in the Registration Statement or the Prospectus or the issuance of securities pursuant to the Company's equity incentive plans or employee stock purchase plans described in the Registration Statement or the Prospectus), or any material change in the short-term or long-term debt, of the Company, or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described above, in the Agent's judgment, makes it impractical or inadvisable to offer or deliver the Shares. (d) The Company shall have performed each of its obligations under Section ~~4(p~~3(q). (e) The Company shall have performed each of its obligations under Section ~~4(q~~3(r). (f) The Company shall have performed each of its obligations under Section ~~4(r~~3(s). (g) FINRA shall ~~not~~ have raised ~~any~~ no objection to the fairness and reasonableness of the underwriting terms and ~~arrangements under this Agreement~~arrangements. (h) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished to Agent and the Agent's counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common ~~Shares~~ Stock shall not have been suspended on the ~~NASDAQ Capital Market~~Exchange. The Shares shall have been listed and authorized for trading on the ~~NASDAQ Capital Market~~ Exchange prior to the first Settlement Date, and satisfactory evidence of such actions shall have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the ~~NASDAQ Capital Market~~Exchange. (k) On each Bringdown Date, Ellenoff Xxxxxxxx & Schole LLP, counsel for the Agent, shall not have reasonably determined that the Base Prospectus, the Prospectus, or any Permitted Free Writing Prospectus, as of such date, includes an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably request.

Appears in 1 contract

Samples: Equity Distribution Agreement (Artelo Biosciences, Inc.)

Conditions of Agent’s Obligations. The obligations of the Agent hereunder are subject to (i) the accuracy of, as of the date hereof, each Bringdown Date, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein, (ii) the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) If ~~the~~ filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no stop order suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's ’s satisfaction. (b) The Agent shall not have advised the Company that the Registration Statement, the Base Prospectus, the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which, in the Agent's ’s opinion, is material, or omits to state a fact which, in the Agent's ’s opinion, is material and is required to be stated therein or is necessary to make the statements therein (i) with respect to the Registration Statement, not misleading and (ii) with respect to the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading. (c) Except as set forth or contemplated in ~~the Base Prospectus,~~ the Prospectus and any Permitted Free Writing Prospectus, subsequent to the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding ~~options~~ options, preferred stock, notes or warrants that are disclosed in the Registration Statement or the Prospectus or the issuance of securities pursuant to the Company’s equity incentive plans or employee stock purchase plans described in the Registration Statement or the Prospectus), or any material change in the short-term or long-term debt, of the Company, or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described above, in the Agent's ’s judgment, makes it impractical or inadvisable to offer or deliver the Shares. (d) The Company shall have performed each of its obligations under Section ~~4(p~~3(q). (e) The Company shall have performed each of its obligations under Section ~~4(q~~3(r). (f) The Company shall have performed each of its obligations under Section ~~4(r~~3(s). (g) FINRA shall ~~not~~ have raised ~~any~~ no objection to the fairness and reasonableness of the underwriting terms and ~~arrangements under this Agreement~~arrangements. (h) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished to Agent and the Agent's ’s counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common ~~Shares~~ Stock shall not have been suspended on the ~~NASDAQ Capital Market~~NYSE American. The Shares shall have been listed and authorized for trading on the ~~NASDAQ Capital Market~~ NYSE American prior to the first Settlement Date, and satisfactory evidence of such actions shall have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the ~~NASDAQ Capital Market~~NYSE American. (k) On each Bringdown Date, Exxxxxxx Gxxxxxxx & Schole LLP, counsel for the Agent, shall not have reasonably determined that the Base Prospectus, the Prospectus, or any Permitted Free Writing Prospectus, as of such date, includes an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's ’s counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably request.

Appears in 1 contract

Samples: Equity Distribution Agreement (AIM ImmunoTech Inc.)

Conditions of Agent’s Obligations. The obligations of the Agent hereunder are subject to (i) the accuracy of, as of the date hereof, each Bringdown Date, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein, (ii) the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule ~~164(b));~~ 164(b)); the Registration Statement shall remain ~~effective;~~ effective; no stop order suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus shall have been ~~issued;~~ issued; no proceedings for the issuance of such an order shall have been initiated or ~~threatened;~~ threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's ’s satisfaction. (b) The Agent shall not have advised the Company that the Registration Statement, the Base Prospectus, the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which, in the Agent's ’s opinion, is material, or omits to state a fact which, in the Agent's ’s opinion, is material and is required to be stated therein or is necessary to make the statements therein (i) with respect to the Registration Statement, not misleading and (ii) with respect to the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading. (c) Except as set forth or contemplated in the Base Prospectus, the Prospectus and any Permitted Free Writing Prospectus, subsequent to the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in the Prospectus), or any material change in the ~~short-term or~~ long-term debt, of the Company, or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described above, in the Agent's ’s judgment, makes it impractical or inadvisable to offer or deliver the Shares. (d) The Company shall have performed each of its obligations under Section ~~4(p~~3(q). (e) The Company shall have performed each of its obligations under Section ~~4(q~~3(r). (f) The Company shall have performed each of its obligations under Section ~~4(r~~3(s). (g) FINRA shall not have raised any objection to the fairness and reasonableness of the terms and arrangements under this Agreement. (h) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished to Agent and the Agent's ’s counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common ~~Shares~~ Stock shall not have been suspended on the ~~NASDAQ~~ Nasdaq Capital Market. The Shares shall have been listed and authorized for trading on the ~~NASDAQ~~ Nasdaq Capital Market prior to the first Settlement Date, and satisfactory evidence of such actions shall have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the ~~NASDAQ~~ Nasdaq Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's ’s counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably request.

Appears in 1 contract

Samples: Equity Distribution Agreement (MacKenzie Realty Capital, Inc.)

Conditions of Agent’s Obligations. The obligations of the ~~Agent~~ Agents hereunder shall be subject, in each of their sole discretion, to the condition that all representations and warranties and other statements of the Company herein or in certificates of any officer of the Company delivered pursuant to the provisions hereof are ~~subject to (i) the accuracy of,~~ true and correct as of the time of the execution of this Agreement, the date ~~hereof,~~ of any executed Terms Agreement and as of each ~~Bringdown~~ Representation Date, Applicable Time and ~~each Time of Sale (in each case~~Settlement Date, ~~as if made at such date), and compliance with, all representations, warranties and agreements of~~ to the condition that the Company ~~contained herein, (ii) the performance by the Company~~ shall have performed all of its obligations hereunder theretofore to be performed, and ~~(iii)~~ the following additional conditions: (a) If The Prospectus Supplement shall have been filed with the ~~filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required~~ Commission pursuant to Rule 424(b) under the Securities Act on or prior to the ~~Rules~~ date hereof and ~~Regulations~~in accordance with Section 3(a) hereof, any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act shall have been filed ~~the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus~~ with the Commission ~~in the manner and~~ within the applicable time ~~period so required (without reliance on~~ periods prescribed for such filings by Rule ~~424(b)(8) or Rule 164(b))~~433; the Registration Statement shall ~~remain effective;~~ have been filed by the Company with the Commission not earlier than three years prior to the date hereof and became effective upon filing in accordance with Rule 462(e) of the Securities Act Regulations, and no stop order suspending the effectiveness of the Registration Statement or any part ~~thereof, any Rule 462(b)~~ thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the form of the Registration ~~Statement,~~ Statement or any post-effective amendment ~~thereof, nor~~ thereto pursuant to Rule 401(g)(2) under the Securities Act shall have been received; no stop order suspending or preventing the use of the ~~Base Prospectus, the~~ Prospectus or any ~~Permitted~~ Issuer Free Writing Prospectus shall have been ~~issued; no proceedings for the issuance of such an order shall have been~~ initiated or ~~threatened~~threatened by the Commission; and ~~any request~~ all requests for additional information on the part of the Commission ~~for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise)~~ shall have been complied with to the ~~Agent's satisfaction~~reasonable satisfaction of the Agents. (b) ~~The Agent~~ On every date specified in Section 3(k) hereof (including, without limitation, on every Request Date), Sidley Austin LLP, counsel for the Agents, shall ~~not~~ have ~~advised~~ furnished to the Agents such written opinion or opinions, dated as of such date, with respect to such matters as the Agents may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters. In said opinion, Sidley Austin LLP may rely as to all matters of Maryland law on the opinion of Xxxxxxx LLP. (c) On every date specified in Section 3(k) hereof (including, without limitation, on every Request Date), Xxxxxxx Procter LLP, counsel for the Company, shall have furnished to the Agents a written opinion or opinions, dated as of such date, substantially in the forms set forth in Exhibits A-1-A and A-1-B attached hereto and in form and substance satisfactory to the Agents. (d) On every date specified in Section 3(k) hereof (including, without limitation, on every Request Date), Xxxxx Xxxxxxxxxx, Esq., General Counsel for the Company, shall have furnished to the Agents a written opinion or opinions, dated as of such date, substantially in the form set forth in Exhibit A-2 attached hereto and in form and substance satisfactory to the Agents. (e) On every date specified in Section 3(k) hereof (including, without limitation, on every Request Date), Seyfarth Xxxx LLP, counsel for the Company, shall have furnished to the Agents a written opinion or opinions, dated as of such date, substantially in the form set forth in Exhibit A-3 attached hereto and in form and substance satisfactory to the Agents. (f) On every date specified in Section 3(k) hereof (including, without limitation, on every Request Date), Xxxxxxx LLP, Maryland counsel for the Company, shall have furnished to the Agents a written opinion or opinions, dated as of such date, substantially in the form set forth in Exhibit A-4 attached hereto and in form and substance satisfactory to the Agents. (g) At the dates specified in Section 3(l) hereof (including, without limitation, on every Request Date), BDO USA LLP, the independent accountants of the Company ~~that~~ who have certified the financial statements of the Company and its subsidiaries included or incorporated by reference in the Registration Statement, the ~~Base Prospectus,~~ Disclosure Package and the Prospectus, ~~or any amendment or supplement thereto~~shall have furnished to the Agents a letter dated as of the date of delivery thereof and addressed to the Agents in form and substance reasonably satisfactory to the Agents and their counsel, ~~or any Permitted Free Writing Prospectus, contains an untrue statement~~ containing statements and information of ~~fact which,~~ the type ordinarily included in ~~the Agent's opinion, is material, or omits~~ accountants’ “comfort letters” to ~~state a fact which, in the Agent's opinion, is material~~ Agents and ~~is required to be stated therein or is necessary to make the statements therein (i)~~ underwriters with respect to the financial statements of the Company and its subsidiaries included or incorporated by reference in the Registration Statement, ~~not misleading~~ the Disclosure Package and the Prospectus. (i) Upon commencement of the offering of Shares under this Agreement and on such other dates as reasonably requested by the Agents, the Company will furnish or cause to be furnished promptly to the Agents a placement notice in the form attached hereto as Annex II stating the minimum gross sales price per share for the sale of such Shares pursuant to this Agreement and the maximum number of Shares that may be issued and sold pursuant to this Agreement or, alternatively, maximum gross proceeds from such sales, as authorized from time to time by the Company’s board of trustees or a duly authorized committee thereof, and the number of Shares that have been approved for listing on the NYSE or, in connection with any amendment, revision or modification of such minimum price or maximum Share number or amount, a new certificate with respect thereto and (ii) ~~with respect~~ on each date specified in Section 3(j) (including, without limitation, on every Request Date), the Agents shall have received a certificate of executive officers of the Company, one of whom shall be the Chief Financial Officer, Chief Accounting Officer, Treasurer, or Executive Vice President in the area of capital markets and investments, dated as of the date thereof, to the ~~Base Prospectus,~~ effect that (A) there has been no Material Adverse Change since the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading. (c) Except as set forth or contemplated in the Base Prospectus, the Prospectus and any Permitted Free Writing Prospectus, subsequent to the respective dates date as of which information is given ~~therein~~in the Prospectus as then amended or supplemented or the Disclosure Package, (B) the representations and warranties in Section 1 hereof are true and correct as of such date. (C) the Company ~~shall not have incurred any material liabilities or obligations, direct or contingent, or~~ has complied with all of the agreements entered into ~~any material transactions,~~ in connection with the transaction contemplated herein and satisfied all conditions on its part to be performed or ~~declared or paid any dividends or made any distribution of any kind with respect to its capital stock~~ satisfied and ~~there shall not have~~ (D) the condition set forth in Section 6(a) has been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in the Prospectus), or any material change in the short-term or long-term debt, of the Company, or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described above, in the Agent's judgment, makes it impractical or inadvisable to offer or deliver the Sharessatisfied. (di) Since the date of the latest audited financial statements then included or incorporated by reference in the Prospectus and the Disclosure Package, no Material Adverse Change shall have occurred. (j) The Company shall have ~~performed each~~ complied with the provisions of ~~its obligations under~~ Section ~~4(p)~~3(c) hereof with respect to the timely furnishing of prospectuses. (ek) ~~The~~ On such dates as reasonably requested by the Agents, the Company shall have ~~performed each of its obligations under Section 4(q)~~conducted due diligence sessions, in form and substance satisfactory to the Agents. (f) The Company shall have performed each of its obligations under Section 4(r). (g) FINRA shall not have raised any objection to the fairness and reasonableness of the terms and arrangements under this Agreement. (hl) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by ~~the~~ each Applicable Time or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule ~~424~~424 (without reliance on Rule 424(b)(8)). (im) The Company shall have furnished to Agent and the Agent's counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common Shares shall not have been suspended on the NASDAQ Capital Market. The Shares shall have ~~been listed and authorized~~ received approval for ~~trading~~ listing on the ~~NASDAQ Capital Market~~ NYSE prior to the first Settlement Date~~, and satisfactory evidence of such actions~~ . (n) Counsel for the Agents shall have been ~~provided~~ furnished with such documents and opinions as they may require in order to evidence the ~~Agent and its counsel, which may include oral confirmation from a representative~~ accuracy of any of the ~~NASDAQ Capital Market. All such opinions~~representations or warranties, ~~certificates~~or the fulfillment of any of the conditions, ~~letters~~ contained herein or in any applicable Terms Agreement; and ~~other documents will be~~ all proceedings taken by the Company in ~~compliance~~ connection with the ~~provisions hereof only if they are~~ issuance and sale of the Shares as contemplated herein or in any applicable Terms Agreement and in connection with the other transactions contemplated by this Agreement or any such Terms Agreement shall be reasonably satisfactory in form and substance to ~~Agent~~ the Agents and counsel for the ~~Agent's counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably request~~Agents.

Appears in 1 contract

Samples: Atm Equity Offering Sales Agreement (Acadia Realty Trust)

Conditions of Agent’s Obligations. The Company, the Mid-Tier Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and the issuance of the Exchange Shares and all obligations of the Agent hereunder are subject to ~~(i)~~ the accuracy ofof the representations and warranties of the Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, ~~each Bringdown Date, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein, (ii)~~ to the performance by the ~~Company~~ Company, the Mid-Tier Company, the MHC and the Bank of ~~its~~ their obligations ~~hereunder~~ hereunder, and ~~(iii)~~ to the following ~~additional~~ further conditions: (a) If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no No stop order suspending the effectiveness of the Registration ~~Statement~~ Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or the authorization for final use of the Prospectus, including any ~~part thereof, any Rule 462(b)~~ prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or ~~any amendment thereof~~proceedings therefor initiated or, ~~nor suspending or preventing~~ to the ~~use~~ knowledge of the ~~Base Prospectus~~Company, threatened by the Commission, the ~~Prospectus~~ FRB or the Pennsylvania Banking Department, and no order suspending the sale of the Securities in any ~~Permitted Free Writing Prospectus~~ jurisdiction shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's satisfaction. (b) ~~The~~ At Closing Time, the Agent shall ~~not~~ have ~~advised~~ received: (i) The written opinion contained in Exhibit B hereof, dated as of Closing Time, of Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP, counsel for the ~~Company~~ Company, the Mid-Tier Company, the MHC and the Bank, in form and substance reasonably satisfactory to the Agent. (ii) The favorable opinion, dated as of Closing Time, of Silver, Xxxxxxxx, Taff & Xxxxxxx LLP, counsel for the Agent, in form and substance reasonably satisfactory to the Agent. (iii) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP and Silver, Xxxxxxxx, Taff & Xxxxxxx LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration ~~Statement~~Statement (except for financial statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the ~~Base Prospectus~~time it became effective, ~~the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains~~ contained an untrue statement of a material fact ~~which, in the Agent's opinion, is material,~~ or ~~omits~~ omitted to state a material fact ~~which, in the Agent's opinion, is material and is~~ required to be stated therein or is necessary to make the statements therein not misleading or that the Prospectus (~~i) with respect~~ except for financial statements and schedules and other financial, pro forma, appraisal or statistical data included therein, as to which counsel need make no statement), at the time the Registration ~~Statement~~Statement became effective or at the Closing Time, ~~not misleading and~~ or (iiif applicable) ~~with respect~~ that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted to state a material fact necessary in order to make the ~~Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus~~statements therein, in the light of the circumstances under which they were made, not misleading. The opinions may be limited to matters governed by the laws of the United States, the State of Maryland, the Commonwealth of Pennsylvania and the State of New Jersey. In giving their opinions, Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP may rely as to matters of fact on certificates of officers and directors of the Company, the Mid-Tier Company, the MHC, the Bank and the Subsidiaries, as applicable, and certificates of public officials, and Silver, Xxxxxxxx, Taff & Xxxxxxx LLP may also rely on the opinion of Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP. (c) ~~Except as set forth or contemplated~~ At the Closing Time referred to in ~~the Base Prospectus~~Section 2 hereof, the ~~Prospectus~~ Company, the Mid-Tier Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable FRB Regulations, the Pennsylvania Banking Code and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company, the Mid-Tier Company, the MHC or the Bank by the FRB, the Pennsylvania Banking Department or any ~~Permitted Free Writing Prospectus~~other regulatory authority, ~~subsequent~~ other than those which the FRB, Pennsylvania Banking Department or such other regulatory authority permits to be completed after the Conversion. (d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in Registration Statement and the Prospectus), ~~or any material change in the short-term or long-term debt, of the Company, or~~ any Material Adverse Effect ~~or any development that would be reasonably likely to result in a Material Adverse Effect (~~whether or not arising in the ordinary course of ~~business)~~business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, the Mid-Tier Company, the MHC and the Bank and the Chief Financial or ~~any~~ Chief Accounting Officer of the Company, the Mid-Tier Company, the MHC and the Bank, dated as of Closing Time, to the effect that (i) there has been no such Material Adverse Effect, (ii) there has been no material ~~loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred~~ transaction entered into by the Company, the Mid-Tier Company, the MHC, or the Bank from the latest date as of which the financial condition of the Company, the Mid-Tier Company, the MHC or the Bank is set forth in the Registration Statement and the Prospectus, other than transactions referred to or contemplated therein and transactions in the ordinary course of business substantially consistent with past practice, except as disclosed in the Prospectus, (iii) neither the Company, the Mid-Tier Company, the MHC, nor the Bank has received from the Pennsylvania Banking Department, the FRB or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the Mid-Tier Company, the MHC or the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the Mid-Tier Company, the MHC and the Bank has complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to their knowledge, threatened by the Commission, and (vii) no order suspending the FRB’s approvals of the Holding Company Application or the Conversion Application or the Pennsylvania Banking Department’s approval of the Pennsylvania Application, or the transactions contemplated thereby, has been issued and no proceedings for that purpose have been initiated or, to their knowledge, threatened by the FRB or the Pennsylvania Banking Department and, to their knowledge, no person has sought to obtain regulatory or judicial review of the action of the FRB in approving the Plan in accordance with the FRB Regulations, as applicable, nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Holding Company Application or the Conversion Application or the Pennsylvania Banking Department in approving the Pennsylvania Application. (e) At the Closing Time, the Agent shall have received a certificate of the Chief Executive Officer and President of the Company, the Mid-Tier Company, the MHC and the Bank and the Chief Financial Officer of the Company, the Mid-Tier Company, the MHC and the Bank, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the Prospectus fairly present the financial condition and results of operations of the Mid-Tier Company and the Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus. (f) As of the date hereof, the Agent shall have received from S.R. Xxxxxxxxx, P.C. a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the Mid-Tier Company and the Bank within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC; (ii) it is their opinion that the consolidated financial statements included in the Registration Statement and covered by their opinion therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and S.R. Xxxxxxxxx, P.C. set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements of the Mid-Tier Company included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations, or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” in the Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited consolidated financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term borrowings of the Mid-Tier Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or total stockholders’ equity of the Mid-Tier Company, in each case as compared with the amounts shown in the consolidated statements of financial condition included in the Registration Statement or, (D) during the period from September 30, 2020 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Company or increase in interest expense or the provision for loan losses, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinion and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information that are included in the Registration Statement and Prospectus and that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Mid-Tier Company, identified in such letter. (g) At Closing Time, the Agent shall have received from S.R. Xxxxxxxxx, P.C. a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to Closing Time. (h) The “lock-up” agreements, each substantially in the form of Exhibit C hereto, between the Agent and the persons set forth on Exhibit E hereto, relating to sales and certain other dispositions of shares of Common Stock, Mid-Tier Company Common Stock or certain other securities, shall be delivered to the Agent on or before the date hereof and shall be in full force and effect on the Closing Time. (i) At Closing Time, the Securities and the Exchange Shares shall have been approved for quotation on the Nasdaq Capital Market upon notice of issuance. (j) At Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its Appraisal. (k) At Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Exchange Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent. (l) At any time prior to Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in ~~any such case described above, in~~ the judgment of the Agent~~'s judgment~~, ~~makes~~ are so material and adverse as to make it ~~impractical~~ impracticable to market the Securities or ~~inadvisable~~ to ~~offer~~ enforce contracts, including subscriptions or ~~deliver~~ orders, for the Shares. (d) The Company shall have performed each of its obligations under Section 4(p). (e) The Company shall have performed each of its obligations under Section 4(q). (f) The Company shall have performed each of its obligations under Section 4(r). (g) FINRA shall not have raised any objection to the fairness and reasonableness sale of the ~~terms~~ Securities, and ~~arrangements under this Agreement.~~ (hii) ~~All filings with~~ trading generally on either the ~~Commission required by Rule 424 under~~ NYSE MKT, the ~~Securities Act to have been filed by~~ New York Stock Exchange or the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished to Agent and the Agent's counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common Shares Nasdaq Stock Market shall not have been ~~suspended on the NASDAQ Capital Market. The Shares~~ suspended, and minimum or maximum prices for trading shall not have been ~~listed and authorized~~ fixed, or maximum ranges for ~~trading on~~ prices for securities have been required, by any of said Exchanges or by order of the ~~NASDAQ Capital Market prior to the first Settlement Date~~Commission or any other governmental authority, and ~~satisfactory evidence of such actions~~ a banking moratorium shall not have been ~~provided to the Agent and its counsel~~declared by either Federal, which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably requestPennsylvania or New York authorities.

Appears in 1 contract

Samples: Agency Agreement (William Penn Bancorporation)

Conditions of Agent’s Obligations. The Company, the Mid-Tier Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and the issuance of the Exchange Shares and all obligations of the Agent hereunder are subject to ~~(i)~~ the accuracy ofof the representations and warranties of the Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, ~~each Bringdown Date, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein, (ii)~~ to the performance by the ~~Company~~ Company, the Mid-Tier Company, the MHC and the Bank of ~~its~~ their obligations ~~hereunder~~ hereunder, and ~~(iii)~~ to the following ~~additional~~ further conditions: (a) If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no No stop order suspending the effectiveness of the Registration ~~Statement~~ Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or the authorization for final use of the Prospectus, including any ~~part thereof, any Rule 462(b)~~ prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or ~~any amendment thereof~~proceedings therefor initiated or, ~~nor suspending or preventing~~ to the ~~use~~ knowledge of the ~~Base Prospectus~~Company, threatened by the Commission, the ~~Prospectus~~ FRB or the Division, and no order suspending the sale of the Securities in any ~~Permitted Free Writing Prospectus~~ jurisdiction shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's satisfaction. (b) ~~The~~ At Closing Time, the Agent shall ~~not~~ have ~~advised~~ received: (i) The written opinion contained in Exhibit B hereof, dated as of Closing Time, of Xxxx Xxxxxx, PC, counsel for the ~~Company~~ Company, the Mid-Tier Company, the MHC and the Bank, in form and substance reasonably satisfactory to the Agent. (ii) The favorable opinion contained in Exhibit C hereof, dated as of Closing Time, of Xxxxxx, XxXxxxxxx & Fish LLP, counsel for the Agent, in form and substance reasonably satisfactory to the Agent. (iii) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Xxxx Xxxxxx, PC and Xxxxxx, XxXxxxxxx & Fish, LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration ~~Statement~~Statement (except for financial statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the ~~Base Prospectus~~time it became effective, ~~the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains~~ contained an untrue statement of a material fact ~~which, in the Agent's opinion, is material,~~ or ~~omits~~ omitted to state a material fact ~~which, in the Agent's opinion, is material and is~~ required to be stated therein or is necessary to make the statements therein not misleading or that the Prospectus (~~i) with respect~~ except for financial statements and schedules and other financial, pro forma, appraisal or statistical data included therein, as to which counsel need make no statement), at the time the Registration ~~Statement~~Statement became effective or at the Closing Time, ~~not misleading and~~ or (iiif applicable) ~~with respect~~ that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted to state a material fact necessary in order to make the ~~Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus~~statements therein, in the light of the circumstances under which they were made, not misleading. The opinions may be limited to matters governed by the laws of the United States, the State of Maryland and the Commonwealth of Massachusetts. In giving their opinions, Xxxx Xxxxxx, PC, and Xxxxxx, XxXxxxxxx & Fish, LLP may rely as to matters of fact on certificates of officers and directors of the Company, the Mid-Tier Company, the MHC, the Bank and the Subsidiaries, as applicable, and certificates of public officials, and Xxxxxx, XxXxxxxxx & Fish, LLP may also rely on the opinion of Xxxx Xxxxxx, PC with respect to matters set forth in paragraphs (iv), (x), (xiv), (xv) and (xvii) therein. (c) ~~Except as set forth or contemplated~~ At the Closing Time referred to in ~~the Base Prospectus~~Section 2 hereof, the ~~Prospectus~~ Company, the Mid-Tier Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Massachusetts Regulations, FRB Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company, the Mid-Tier Company, the MHC or the Bank by the Division, the FRB or any ~~Permitted Free Writing Prospectus~~other regulatory authority, ~~subsequent~~ other than those which the Division, the FRB or such other regulatory authority permits to be completed after the Conversion. (d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in Registration Statement and the Prospectus), ~~or any material change in the short-term or long-term debt, of the Company, or~~ any Material Adverse Effect ~~or any development that would be reasonably likely to result in a Material Adverse Effect (~~whether or not arising in the ordinary course of ~~business)~~business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, the Mid-Tier Company, the MHC and the Bank and the Chief Financial or ~~any~~ Chief Accounting Officer of the Company, the Mid-Tier Company, the MHC and the Bank, dated as of Closing Time, to the effect that (i) there has been no such Material Adverse Effect, (ii) there has been no material ~~loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred~~ transaction entered into by the Company, the Mid-Tier Company, the MHC, or the Bank from the latest date as of which the financial condition of the Company, the Mid-Tier Company, the MHC or the Bank is set forth in the Registration Statement and the Prospectus, other than transactions referred to or contemplated therein and transactions in the ordinary course of business substantially consistent with past practice, except as disclosed in the Prospectus, (iii) neither the Company, the Mid-Tier Company, the MHC, nor the Bank has received from the Division, the FRB or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the Mid-Tier Company, the MHC or the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the Mid-Tier Company, the MHC and the Bank has complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to their knowledge, threatened by the Commission, and (vii) no order suspending the FRB’s approval of the Holding Company Application or the Division’s approval of the Massachusetts Conversion Application, or the transactions contemplated thereby, has been issued and no proceedings for that purpose have been initiated or, to their knowledge, threatened by the FRB or the Division and, to their knowledge, no person has sought to obtain regulatory or judicial review of the action of the FRB or the Division in approving the Plan in accordance with the FRB Regulations or the Massachusetts Regulations, as applicable, nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Holding Company Application or the Division in approving the Massachusetts Conversion Application. (e) At the Closing Time, the Agent shall have received a certificate of the Chief Executive Officer and President of the Company, the Mid-Tier Company, the MHC and the Bank and the Chief Financial Officer of the Company, the Mid-Tier Company, the MHC and the Bank, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the Prospectus fairly present the financial condition and results of operations of the Mid-Tier Company and the Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus. (f) As of the date hereof, the Agent shall have received from Xxxxxxxxxx PC a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the Mid-Tier Company and the Bank within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC; (ii) it is their opinion that the consolidated financial statements included in the Registration Statement and covered by their opinion therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and Xxxxxxxxxx PC set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements of the Mid-Tier Company included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations, or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” or under “Recent Developments” in the Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited consolidated financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated borrowings of the Mid-Tier Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or total stockholders’ equity of the Mid-Tier Company, in each case as compared with the amounts shown in the consolidated statements of financial condition included in the Registration Statement or, (D) during the period from March 31, 2019 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Company, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinion and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information that are included in the Registration Statement and Prospectus and that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Mid-Tier Company, identified in such letter. (g) At Closing Time, the Agent shall have received from Xxxxxxxxxx PC a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to Closing Time. (h) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between the Agent and the persons set forth on Exhibit E hereto, relating to sales and certain other dispositions of shares of Common Stock, Mid-Tier Company Common Stock or certain other securities, shall be delivered to the Agent on or before the date hereof and shall be in full force and effect on the Closing Time. (i) At Closing Time, the Securities and the Exchange Shares shall have been approved for quotation on the Nasdaq Capital Market upon notice of issuance. (j) At Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its Appraisal. (k) At Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Exchange Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent. (l) At any time prior to Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in ~~any such case described above, in~~ the judgment of the Agent~~'s judgment~~, ~~makes~~ are so material and adverse as to make it ~~impractical~~ impracticable to market the Securities or ~~inadvisable~~ to ~~offer~~ enforce contracts, including subscriptions or ~~deliver~~ orders, for the Shares. (d) The Company shall have performed each of its obligations under Section 4(p). (e) The Company shall have performed each of its obligations under Section 4(q). (f) The Company shall have performed each of its obligations under Section 4(r). (g) FINRA shall not have raised any objection to the fairness and reasonableness sale of the ~~terms~~ Securities, and ~~arrangements under this Agreement.~~ (hii) ~~All filings with~~ trading generally on either the ~~Commission required by Rule 424 under~~ American Stock Exchange, the ~~Securities Act to have been filed by~~ New York Stock Exchange or the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished to Agent and the Agent's counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common Shares Nasdaq Stock Market shall not have been ~~suspended on the NASDAQ Capital Market. The Shares~~ suspended, and minimum or maximum prices for trading shall not have been ~~listed and authorized~~ fixed, or maximum ranges for ~~trading on~~ prices for securities have been required, by any of said Exchanges or by order of the ~~NASDAQ Capital Market prior to the first Settlement Date~~Commission or any other governmental authority, and ~~satisfactory evidence of such actions~~ a banking moratorium shall not have been ~~provided to the Agent and its counsel~~declared by either Federal, which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably requestMassachusetts or New York authorities.

Appears in 1 contract

Samples: Agency Agreement (Provident Bancorp, Inc. /MD/)

Conditions of Agent’s Obligations. The obligations of the Agent hereunder are subject to (i) the accuracy of, as of the date hereof, each Bringdown Date, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein, (ii) the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) If ~~the~~ filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no stop order suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's ’s satisfaction. (b) The Agent shall not have advised the Company that the Registration Statement, the Base Prospectus, the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which, in the Agent's ’s opinion, is material, or omits to state a fact which, in the Agent's ’s opinion, is material and is required to be stated therein or is necessary to make the statements therein (i) with respect to the Registration Statement, not misleading and (ii) with respect to the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading. (c) Except as set forth or contemplated in the ~~Base Prospectus, the~~ Prospectus and any Permitted Free Writing Prospectus, subsequent to the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its share capital ~~stock~~ and there shall not have been any change in the ~~capital stock~~share capital, or any issuance of options, warrants, convertible securities or other rights to purchase the ~~capital stock~~ shares (other than as a result of the exercise of any currently outstanding ~~options~~ options, preferred shares, notes or warrants that are disclosed in the Registration Statement or the Prospectus or the issuance of securities pursuant to the Company’s equity incentive plans or employee share purchase plans described in the Registration Statement or the Prospectus), or any material change in the short-term or long-term debt, of the Company, or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described above, in the Agent's ’s judgment, makes it impractical or inadvisable to offer or deliver the Shares. (d) The Company shall have performed each of its obligations under Section ~~4(p~~3(q). (e) The Company shall have performed each of its obligations under Section ~~4(q~~3(r). (f) The Company shall have performed each of its obligations under Section ~~4(r~~3(s). (g) The Company shall have performed each of its obligations under Section 3(t). (h) The Company shall have performed each of its obligations under Section 3(u). (i) The Company shall have performed each of its obligations under Section 3(v). (j) FINRA shall not have raised any objection to the fairness and reasonableness of the underwriting terms and ~~arrangements under this Agreement~~arrangements. (hk) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (il) The Company shall have furnished to Agent and the Agent's ’s counsel such additional documents, certificates and evidence as they may have reasonably requested. (jm) Trading in the ~~Common~~ Ordinary Shares shall not have been suspended on the ~~NASDAQ Capital Market~~Exchange. The Shares shall have been listed and authorized for trading on the ~~NASDAQ Capital Market~~ Exchange prior to the first Settlement Date, and satisfactory evidence of such actions shall have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the ~~NASDAQ Capital Market~~Exchange. (n) On each Bringdown Date, Polsinelli PC, counsel for the Agent, shall not have reasonably determined that the Base Prospectus, the Prospectus, or any Permitted Free Writing Prospectus, as of such date, includes an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's ’s counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably request.

Appears in 1 contract

Samples: Equity Distribution Agreement (OXBRIDGE RE HOLDINGS LTD)

Conditions of Agent’s Obligations. The obligations of the Agent hereunder are subject to (i) the accuracy of, as of the date hereof, each Bringdown Date, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein, (ii) the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no stop order suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's ’s satisfaction. (b) The Agent shall not have advised the Company that the Registration Statement, the Base Prospectus, the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which, in the Agent's ’s opinion, is material, or omits to state a fact which, in the Agent's ’s opinion, is material and is required to be stated therein or is necessary to make the statements therein (i) with respect to the Registration Statement, not misleading and (ii) with respect to the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading. (c) Except as set forth or contemplated in the Base Prospectus, the Prospectus and any Permitted Free Writing Prospectus, subsequent to the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in the Prospectus), or any material change in the short-term or long-term debt, of the Company, or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described above, in the Agent's ’s judgment, makes it impractical or inadvisable to offer or deliver the Shares. (d) The Company shall have performed each of its obligations under ~~Section 4(p).~~Section (e) The Company shall have performed each of its obligations under ~~Section 4(q).~~Section (f) The Company shall have performed each of its obligations under Section 4(r). (g) FINRA shall not have raised any objection to the fairness and reasonableness of the terms and arrangements under this Agreement. (h) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished to Agent and the Agent's ’s counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common Shares shall not have been suspended on the NASDAQ Capital Market. The Shares shall have been listed and authorized for trading on the NASDAQ Capital Market prior to the first Settlement Date, and satisfactory evidence of such actions shall have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's ’s counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably request.

Appears in 1 contract

Samples: Equity Distribution Agreement (Euroseas Ltd.)

Conditions of Agent’s Obligations. The Primary Parties and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to ~~(i)~~ the accuracy ~~of,~~ of the representations and warranties of the Primary Parties herein contained as of the date hereof and the Closing Time, to the accuracy in of the statements of the officers and directors of the MHC, Company, the Mid-Tier and the Bank made pursuant to the provisions hereof, ~~each Bringdown Date, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein, (ii)~~ to the performance by the ~~Company~~ Primary Parties of ~~its~~ their obligations ~~hereunder~~ hereunder, and ~~(iii)~~ to the following ~~additional~~ further conditions: (a) If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no No stop order suspending the effectiveness of the Registration ~~Statement~~ Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission; no order suspending the Offerings or authorization for final use of the Prospectus, including any ~~part thereof, any Rule 462(b)~~ prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or ~~any amendment thereof~~proceedings therefor initiated or, ~~nor suspending or preventing~~ to the ~~use~~ knowledge of the ~~Base Prospectus~~Company, threatened by the ~~Prospectus~~ Commission, or the FRB; and no order suspending the sale of the Securities in any ~~Permitted Free Writing Prospectus~~ jurisdiction shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's satisfaction. (b) ~~The~~ At the Closing Time, the Agent shall ~~not~~ have ~~advised~~ received: (1) The favorable opinion, dated as of the ~~Company~~ Closing Time, of Lxxx Xxxxxx, PC, counsel for the Primary Parties, in form and substance satisfactory to counsel for the Agent, as attached hereto as Exhibit B. (2) The favorable opinion, dated as of the Closing Time, of Gxxxxxx Xxxxxxx, LLP, counsel for the Agent, as to such matters as the Agent may reasonably require. (3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Lxxx Xxxxxx, PC and Gxxxxxx Procter LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration ~~Statement~~Statement (except for financial statements and schedules and other financial, pro forma, appraisal or statistical data included therein, as to which counsel need make no statement), at the ~~Base Prospectus~~time it became effective, ~~the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains~~ contained an untrue statement of a material fact ~~which, in the Agent's opinion, is material,~~ or ~~omits~~ omitted to state a material fact ~~which, in the Agent's opinion, is material and is~~ required to be stated therein or is necessary to make the statements therein not misleading or that the Prospectus (~~i) with respect~~ except for financial statements and schedules and other financial, pro forma, appraisal or statistical data included therein, as to which counsel need make no statement), at the time the Registration ~~Statement~~Statement became effective, ~~not misleading and (ii) with respect to~~ as of the ~~Base Prospectus,~~ date of the Prospectus or ~~any Permitted Free Writing Prospectus~~at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, Lxxx Xxxxxx, PC and Gxxxxxx Procter LLP may rely as to matters of fact on certificates of officers and directors of the Primary Parties and certificates of public officials. Gxxxxxx Procter LLP may also rely on the opinion of Lxxx Xxxxxx, PC. (c) ~~Except as set forth or contemplated~~ At the Closing Time referred to in ~~the Base Prospectus~~Section 2 hereof, the ~~Prospectus~~ Primary Parties shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the FRB Regulations, Massachusetts Banking Law and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company, the Mid-Tier, the MHC or the Bank by the FRB, the Division or any ~~Permitted Free Writing Prospectus~~other regulatory authority other than those which the FRB, ~~subsequent~~ the Division or any such other regulatory authority permit to be completed after the Conversion. (d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in Registration Statement and the Prospectus), ~~or any material change in the short-term or long-term debt, of the Company, or~~ any Material Adverse ~~Effect or any development that would be reasonably likely to result in a Material Adverse Effect (~~Effect, whether or not arising in the ordinary course of business), and the Agent shall have received a certificate of the Chief Executive Officer of the MHC, the Mid-Tier, the Company and the Bank and the Chief Financial Officer of the MHC, the Mid-Tier, the Company and the Bank, dated as of Closing Time, to the effect that (i) there has been no such Material Adverse Effect, (ii) there has been no material transaction entered into by the MHC, the Mid-Tier, the Company or the Bank from the latest date as of which the financial condition of the MHC, the Company, the Mid-Tier or the Bank, as set forth in the Registration Statement, the Prospectus and the General Disclosure Package other than transactions referred to or contemplated therein and transactions in the ordinary course of business substantially consistent with past practice, (iii) none of the Primary Parties shall have received from the FRB, the Division or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or that would materially and adversely affect the business, financial condition, results of operations or prospects of the Company, the MHC, the Mid-Tier and the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Primary Parties shall have complied with all agreements and satisfied all conditions in all material respects on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the Knowledge of the Company, the MHC, the Mid-Tier or the Bank, threatened by the Commission, (vii) no order suspending the FRB’s approval of the Holding Company Application and the FRB Application or the transactions contemplated thereby or the Division’s approval of the Massachusetts Application or the transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company, the MHC, the Mid-Tier or the Bank, threatened by the FRB or the Division and no person has sought to obtain regulatory or judicial review of the action of the FRB or the Division in approving the Plan in accordance with the FRB Regulations and Massachusetts Banking Law nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Holding Company Application and the FRB Application or the Division approving the Massachusetts Application, and (viii) no order suspending the Subscription and Community Offering, or the Syndicated Community Offering or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the FRB or the Division. (e) At the Closing Time, the Agent shall have received a certificate of the Chief Executive Officer of the MHC, the Mid-Tier, the Company and the Bank and the Chief Financial Officer of the MHC, the Mid-Tier, the Company and the Bank, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement, the Prospectus and the General Disclosure Package; (ii) based on each of their knowledge, the Registration Statement, the Prospectus and the General Disclosure Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement, the Prospectus, the Information Statement, the and the General Disclosure Package fairly present the financial condition and results of operations of the Company as of and for the dates and periods covered by the Registration Statement and the Prospectus; (iv) they are responsible for establishing and maintaining disclosure controls and procedures; (v) they have designed such disclosure controls and procedures to ensure that material information relating to the Company, the MHC, the Mid-Tier and the Bank is made known to them; (vi) they have evaluated the effectiveness of their disclosure controls and procedures; and (vii) they have disclosed to Exxxxxx Xxxxx, LLC and the audit committee (A) all significant deficiencies in the design or operation of disclosure controls and procedures that are reasonably likely to adversely affect the Mid-Tier’s ability to record, process, summarize, and report financial data, and have identified for the Mid-Tier’s and the Bank’s independent registered public accounting firm any material ~~loss by strike, fire, flood, earthquake, accident or other calamity~~weaknesses in disclosure controls and procedures and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s, the MHC’s, the Mid-Tier’s and the Bank’s disclosure controls and procedures. (f) As of the date hereof, the Agent shall have received from Exxxxxx Xxxxx, LLC a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHC, the Mid-Tier, the Company and the Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the FRB Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Sxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by ~~insurance, incurred~~ their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the ~~Company~~Agent and Exxxxxx Xxxxx, LLC set forth in detail in such letter, nothing has come to their attention that causes them to believe that, except as set forth in such letter, (A) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” or under “Recent Developments” in the Prospectus and the General Disclosure Package do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited consolidated financial statements included in the Registration Statement, the Prospectus and the General Disclosure Package, (B) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the Primary Parties or any decrease in consolidated total assets, the allowance for loan losses, total deposits or total stockholders’ equity of the MHC, in each case as compared with the amounts shown in the December 31, 2022 audited consolidated statements of financial condition presented in the Registration Statement or, (C) during the period from December 31, 2022 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in consolidated total interest and dividend income, net interest income, net interest income after provision for loan losses, income before provision for income taxes or net income of the MHC, except in all instances for increases or decreases which the Registration Statement, the Prospectus and the General Disclosure Package disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinion and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information that are included in the Registration Statement, Prospectus and the General Disclosure Package and that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company and the Bank identified in such letter. (g) At the Closing Time, the Agent shall have received from Exxxxxx Xxxxx, LLC a letter dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than three (3) business days prior to the Closing Time. (h) At the Closing Time, the Securities and the Foundation Shares shall have been approved for listing on the Nasdaq Stock Market. (i) At the Closing Time, the Company and the Bank shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal. (j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent. (k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in ~~any such case described above, in~~ the judgment of the Agent~~'s judgment~~, ~~makes~~ are so material and adverse as to make it ~~impractical~~ impracticable to market the Securities or ~~inadvisable~~ to ~~offer~~ enforce contracts, including subscriptions or ~~deliver~~ orders, for the Shares. (d) The Company shall have performed each of its obligations under Section 4(p). (e) The Company shall have performed each of its obligations under Section 4(q). (f) The Company shall have performed each of its obligations under Section 4(r). (g) FINRA shall not have raised any objection to the fairness and reasonableness sale of the ~~terms~~ Securities, and ~~arrangements under this Agreement.~~ (hii) ~~All filings with~~ trading generally on any of the ~~Commission required by Rule 424 under~~ NYSE MKT, the ~~Securities Act to have been filed by~~ New York Stock Exchange or the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished to Agent and the Agent's counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common Shares Nasdaq Stock Market shall not have been ~~suspended on the NASDAQ Capital Market. The Shares~~ suspended, and minimum or maximum prices for trading shall not have been ~~listed and authorized~~ fixed, or maximum ranges for ~~trading on~~ prices for securities have been required, by any of said Exchanges or by order of the ~~NASDAQ Capital Market prior to the first Settlement Date~~Commission or any other governmental authority, and ~~satisfactory evidence of such actions~~ a banking moratorium shall not have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably requestdeclared by either Federal or New York authorities.

Appears in 1 contract

Samples: Agency Agreement (NB Bancorp, Inc.)

Conditions of Agent’s Obligations. The MHC, the Company, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to ~~(i)~~ the accuracy ofof the representations and warranties of the MHC, the Company and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Bank, the MHC and the Company made pursuant to the provisions hereof, ~~each Bringdown Date, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein, (ii)~~ to the performance by the MHC, the Company and the Bank of ~~its~~ their obligations ~~hereunder~~ hereunder, and ~~(iii)~~ to the following ~~additional~~ further conditions: (a) If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no No stop order suspending the effectiveness of the Registration ~~Statement~~ Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any ~~part thereof, any Rule 462(b)~~ prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or ~~any amendment thereof~~proceedings therefor initiated or, ~~nor suspending or preventing~~ to the ~~use~~ knowledge of the ~~Base Prospectus~~Company, threatened by the ~~Prospectus or~~ Commission and no order suspending the sale of the Securities in any ~~Permitted Free Writing Prospectus~~ jurisdiction shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's satisfaction. (b) ~~The~~ At the Closing Time, the Agent shall ~~not~~ have ~~advised~~ received: (1) The favorable opinion, dated as of the Closing Time, of Xxxx Xxxxxx, PC, counsel for the MHC, the Company and the Bank, in form and substance satisfactory to counsel for the Agent, as attached hereto as Exhibit B. (2) The favorable opinion, dated as of the Closing Time, of Xxxxxxx Procter LLP, counsel for the Agent, as to such matters as the Agent may reasonably require. (3) In addition to giving their opinions required by subsections 5(b)(1) and 5(b)(2), respectively, of this Section, Xxxx Xxxxxx, PC and Xxxxxxx Procter LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration ~~Statement~~Statement (except for financial statements and schedules and other financial, pro forma, appraisal or statistical data included therein, as to which counsel need make no statement), at the ~~Base Prospectus~~time it became effective, ~~the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains~~ contained an untrue statement of a material fact ~~which, in the Agent's opinion, is material,~~ or ~~omits~~ omitted to state a material fact ~~which, in the Agent's opinion, is material and is~~ required to be stated therein or is necessary to make the statements therein not misleading or that the Prospectus (~~i) with respect~~ except for financial statements and schedules and other financial, pro forma, appraisal or statistical data included therein, as to which counsel need make no statement), at the time the Registration ~~Statement~~Statement became effective, ~~not misleading and (ii) with respect to~~ as of the ~~Base Prospectus,~~ date of the Prospectus or ~~any Permitted Free Writing Prospectus~~at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, Xxxx Xxxxxx, PC and Xxxxxxx Procter LLP may rely as to matters of fact on certificates of officers and directors of the MHC, the Company and the Bank and certificates of public officials. Xxxxxxx Procter LLP may also rely on the opinion of Xxxx Xxxxxx, PC. (c) ~~Except as set forth or contemplated~~ At the Closing Time referred to in ~~the Base Prospectus~~Section 2 hereof, the ~~Prospectus~~ Company, the Bank and the MHC shall have completed in all material respects the conditions precedent to the Reorganization in accordance with the Plan, the applicable provisions of New Jersey Conversion Law, the Conversion Regulations, FRB Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Reorganization imposed upon the Company, the MHC or the Bank by the FRB, the NJDBI, the FDIC or any ~~Permitted Free Writing Prospectus~~other regulatory authority other than those which the FRB, ~~subsequent~~ the NJDBI or any such other regulatory authority permit to be completed after the Offerings. (d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in Registration Statement and the Prospectus), ~~or any material change in the short-term or long-term debt, of the Company, or~~ any Material Adverse ~~Effect or any development that would be reasonably likely to result in a Material Adverse Effect (~~Effect, whether or not arising in the ordinary course of business), and the Agent shall have received a certificate of the Chief Executive Officer of the MHC, the Company and the Bank and the Chief Financial Officer of the MHC, the Company and the Bank, dated as of Closing Time, to the effect that (i) there has been no such Material Adverse Effect, (ii) there shall have been no material transaction entered into by the MHC, the Company or the Bank from the latest date as of which the financial condition of the Company or the Bank, as set forth in the Registration Statement, the Prospectus and the General Disclosure Package other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) none of the Company, the MHC or the Bank shall have received from the FRB, the NJDBI or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which would materially and adversely affect the business, financial condition, results of operations or prospects of the Company, the MHC and the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC and the Bank have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company, the MHC or the Bank, threatened by the Commission, (vii) no order suspending the FRB’s approval of the Holding Company Application or the transactions contemplated thereby or the NJDBI’s approval of the Conversion Application or the FDIC’s non-objection to the Conversion Application or the transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company, the MHC or the Bank, threatened by the FRB, the NJDBI or the FDIC and no person has sought to obtain regulatory or judicial review of the action of the NJDBI in approving the Plan in accordance with the New Jersey Conversion Law nor has any person sought to obtain regulatory or judicial review of the action of the FRB or the NJDBI in approving the Holding Company Application or the NJDBI approving or the FDIC issuing its non-objection to the Conversion Applications, and (viii) no order suspending the Subscription and Community Offering or the Syndicated Offering, if any, or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the FRB, the NJDBI or the FDIC. (e) At the Closing Time, the Agent shall have received a certificate of the Chief Executive Officer of the MHC, the Company and the Bank and the Chief Financial Officer of the MHC, the Company and the Bank, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement, the Prospectus and the General Disclosure Package; (ii) based on each of their knowledge, the Registration Statement, the Prospectus and the General Disclosure Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement, the Prospectus and the General Disclosure Package fairly present the financial condition and results of operations of the Company as of and for the dates and periods covered by the Registration Statement and the Prospectus; (iv) they are responsible for establishing and maintaining disclosure controls and procedures; (v) they have designed such disclosure controls and procedures to ensure that material information relating to the Company, the MHC and the Bank is made known to them; (vi) they have evaluated the effectiveness of their disclosure controls and procedures; and (vii) they have disclosed to Xxxxx LLP and the audit committee (A) all significant deficiencies in the design or operation of disclosure controls and procedures which are reasonably likely to adversely affect the Bank’s ability to record, process, summarize, and report financial data, and have identified for the Company’s and the Bank’s independent registered public accounting firm any material ~~loss by strike, fire, flood, earthquake, accident or other calamity~~weaknesses in disclosure controls and procedures and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s and the Bank’s disclosure controls and procedures. (f) As of the date hereof, the Agent shall have received from Xxxxx LLP a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the MHC, the Company and the Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the FRB Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by ~~insurance, incurred~~ their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the ~~Company~~Agent and Xxxxx LLP set forth in detail in such letters, nothing has come to their attention which causes them to believe that, except as set forth in such letters, (A) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” or under “Recent Developments” in the Prospectus and the General Disclosure Package do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited consolidated financial statements included in the Registration Statement, the Prospectus and the General Disclosure Package, (B) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the Bank or any decrease in consolidated total assets, investment securities, total loans, the allowance for loan losses, total deposits or total equity of the Bank, in each case as compared with the amounts shown in the September 30, 2019 unaudited consolidated statements of financial condition presented under the “Recent Developments” caption in the Registration Statement or, (C) during the period from September 30, 2019 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Bank, or increases in interest expense, or the provisions for loan losses, except in all instances for increases or decreases which the Registration Statement, the Prospectus and the General Disclosure Package disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information that are included in the Registration Statement, Prospectus and the General Disclosure Package and that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company and the Bank identified in such letter. (g) At the Closing Time, the Agent shall have received from Xxxxx LLP a letter dated as of the Closing Time, to the effect that they reaffirm the statements made in the letters furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than three (3) business days prior to the Closing Time. (h) At the Closing Time, the Securities and the Foundation Shares shall have been approved for listing on the Nasdaq Stock Market. (i) At the Closing Time, the Bank shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal. (j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the issuance and contribution of the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent. (k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in ~~any such case described above, in~~ the judgment of the Agent~~'s judgment~~, ~~makes~~ are so material and adverse as to make it ~~impractical~~ impracticable to market the Securities or ~~inadvisable~~ to ~~offer~~ enforce contracts, including subscriptions or ~~deliver~~ orders, for the Shares. (d) The Company shall have performed each of its obligations under Section 4(p). (e) The Company shall have performed each of its obligations under Section 4(q). (f) The Company shall have performed each of its obligations under Section 4(r). (g) FINRA shall not have raised any objection to the fairness and reasonableness sale of the ~~terms~~ Securities, and ~~arrangements under this Agreement.~~ (hii) ~~All filings with~~ trading generally on any of the ~~Commission required by Rule 424 under~~ NYSE MKT, the ~~Securities Act to have been filed by~~ New York Stock Exchange or the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished to Agent and the Agent's counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common Shares Nasdaq Stock Market shall not have been ~~suspended on the NASDAQ Capital Market. The Shares~~ suspended, and minimum or maximum prices for trading shall not have been ~~listed and authorized~~ fixed, or maximum ranges for ~~trading on~~ prices for securities have been required, by any of said Exchanges or by order of the ~~NASDAQ Capital Market prior to the first Settlement Date~~Commission or any other governmental authority, and ~~satisfactory evidence of such actions~~ a banking moratorium shall not have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably requestdeclared by either Federal or New Jersey authorities.

Appears in 1 contract

Samples: Agency Agreement (Bogota Financial Corp.)

Conditions of Agent’s Obligations. The Company, the Mid-Tier Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and the issuance of the Exchange Shares and all obligations of the Agent hereunder are subject to ~~(i)~~ the accuracy ofof the representations and warranties of the Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, ~~each Bringdown Date, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein, (ii)~~ to the performance by the ~~Company~~ Company, the Mid-Tier Company, the MHC and the Bank of ~~its~~ their obligations ~~hereunder~~ hereunder, and ~~(iii)~~ to the following ~~additional~~ further conditions: (a) If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no No stop order suspending the effectiveness of the Registration ~~Statement~~ Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any ~~part thereof, any Rule 462(b)~~ prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or ~~any amendment thereof~~proceedings therefor initiated or, ~~nor suspending or preventing~~ to the ~~use~~ knowledge of the ~~Base Prospectus~~Company, threatened by the ~~Prospectus~~ Commission or the FRB and no order suspending the sale of the Securities in any ~~Permitted Free Writing Prospectus~~ jurisdiction shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's satisfaction. (b) ~~The~~ At the Closing Time, the Agent shall ~~not~~ have ~~advised~~ received: (1) The favorable opinion, dated as of the ~~Company~~ Closing Time, of Xxxx Xxxxxx, PC, counsel for the Company, the Mid-Tier Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, as attached hereto as Exhibit B. (2) The favorable opinion, dated as of the Closing Time, of Xxxxx Xxxxxx, LLP, counsel for the Agent, as to such matters as the Agent may reasonably require. (3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Xxxx Xxxxxx, PC and Xxxxx Xxxxxx, LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration ~~Statement~~Statement (except for financial statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the ~~Base Prospectus~~time it became effective, ~~the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains~~ contained an untrue statement of a material fact ~~which, in the Agent's opinion, is material,~~ or ~~omits~~ omitted to state a material fact ~~which, in the Agent's opinion, is material and is~~ required to be stated therein or is necessary to make the statements therein not misleading or that the Prospectus (~~i) with respect~~ except for financial statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration ~~Statement~~Statement became effective, ~~not misleading and (ii) with respect to~~ as of the ~~Base Prospectus,~~ date of the Prospectus or ~~any Permitted Free Writing Prospectus~~at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, Xxxx Xxxxxx, PC and Xxxxx Xxxxxx, LLP may rely as to matters of fact on certificates of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank and certificates of public officials. Xxxxx Xxxxxx, LLP may also rely on the opinion of Xxxx Xxxxxx, PC. (c) ~~Except as set forth or contemplated~~ At the Closing Time referred to in ~~the Base Prospectus~~Section 2 hereof, the ~~Prospectus~~ Company, the Mid-Tier Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable FRB Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company, the Mid-Tier Company, the MHC or the Bank by the FRB, or any ~~Permitted Free Writing Prospectus~~other regulatory authority other than those which the FRB permits to be completed after the Conversion. (d) At the Closing Time, ~~subsequent to~~ there shall not have been, since the date hereof or since the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in Registration Statement and the Prospectus), ~~or any material change in the short-term or long-term debt, of the Company, or~~ any Material Adverse ~~Effect or any development that would be reasonably likely to result in a Material Adverse Effect (~~Effect, whether or not arising in the ordinary course of business), ~~or any~~ and the Agent shall have received a certificate of the Chief Executive Officer of the Company, the Mid-Tier Company, the MHC and the Bank and the Chief Financial Officer of the Company, the Mid-Tier Company, the MHC and the Bank, dated as of Closing Time, to the effect that (i) there has been no such Material Adverse Effect, (ii) there shall have been no material ~~loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred~~ transaction entered into by the Company, the Mid-Tier Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the Mid-Tier Company, the MHC or the Bank, as set forth in the Registration Statement and the Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice (iii) neither the Company, the Mid-Tier Company, the MHC nor the Bank shall have received from the FRB, the OCC or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the Mid-Tier Company, the MHC or the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the Mid-Tier Company, the MHC and the Bank have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission and (vii) no order suspending the FRB’s approval of the Conversion Application, the Holding Company Application or the transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or threatened by the FRB and no person has sought to obtain regulatory or judicial review of the action of the FRB in approving the Plan in accordance with the FRB Regulations nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Conversion Application or the Holding Company Application. (e) At the Closing Time, the Agent shall have received a certificate of the Chief Executive Officer of the Mid-Tier Company, the Company and the Bank and the Chief Financial Officer of the Mid-Tier Company, the Company and the Bank, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the Prospectus fairly present the financial condition and results of operations of the Mid-Tier Company and the Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus. (f) As of the date hereof, the Agent shall have received from BDO USA, LLP and Xxxxx Xxxxx Xxxxxxx Xxxxxx, LLP letters dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the Company, the Mid-Tier Company, the MHC and the Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the FRB Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and BDO USA, LLP and Xxxxx Xxxxx Xxxxxxx Xxxxxx, LLP set forth in detail in such letters, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the Mid-Tier Company included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations and the FRB Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” in the Prospectus and the General Disclosure Package do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited consolidated financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long-term or short-term debt of the Mid-Tier Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or net worth of the Mid-Tier Company, in each case as compared with the amounts shown in the December 31, 2014 consolidated statements of financial condition included in the Registration Statement or, (D) during the period from December 31, 2014 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Company, except in all instances for increases or decreases which the Registration Statement, the Prospectus and the General Disclosure Package disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information that are included in the Registration Statement, the Prospectus and the General Disclosure Package and that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the Mid-Tier Company, the MHC and the Bank identified in such letter. (g) The “lock-up” agreements, each substantially in the form of Exhibit C hereto, between the Agent and the persons set forth on Exhibit D hereto, relating to sales and certain other dispositions of shares of Common Stock, Mid-Tier Company Common Stock or certain other securities, shall be delivered to the Agent on or before the date hereof and shall be in full force and effect on the Closing Time. (h) At the Closing Time, the Agent shall have received from BDO USA, LLP and Xxxxx Xxxxx Xxxxxxx Xxxxxx, LLP letters, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letters furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time. (i) At the Closing Time, all notices required to be filed to permit the Securities, the Foundation Shares and the Exchange Shares to be quoted on the Nasdaq Global Select Market upon notice of issuance shall have been timely filed. (j) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal. (k) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities, the Foundation Shares and the Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities, the Foundation Shares and the Exchange Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent. (l) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in ~~any such case described above, in~~ the judgment of the Agent~~'s judgment~~, ~~makes~~ are so material and adverse as to make it ~~impractical~~ impracticable to market the Securities or ~~inadvisable~~ to ~~offer~~ enforce contracts, including subscriptions or ~~deliver~~ orders, for the Shares. (d) The Company shall have performed each of its obligations under Section 4(p). (e) The Company shall have performed each of its obligations under Section 4(q). (f) The Company shall have performed each of its obligations under Section 4(r). (g) FINRA shall not have raised any objection to the fairness and reasonableness sale of the ~~terms~~ Securities, and ~~arrangements under this Agreement.~~ (hii) ~~All filings with~~ trading generally on either the ~~Commission required by Rule 424 under~~ NYSE MKT, the ~~Securities Act to have been filed by~~ New York Stock Exchange or the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished to Agent and the Agent's counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common Shares Nasdaq shall not have been ~~suspended on the NASDAQ Capital Market. The Shares~~ suspended, and minimum or maximum prices for trading shall not have been ~~listed and authorized~~ fixed, or maximum ranges for ~~trading on~~ prices for securities have been required, by any of said Exchanges or by order of the ~~NASDAQ Capital Market prior to the first Settlement Date~~Commission or any other governmental authority, and ~~satisfactory evidence of such actions~~ a banking moratorium shall not have been ~~provided to the Agent and its counsel~~declared by either Federal, ~~which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions~~Maryland, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably requestNew Jersey or New York authorities.

Appears in 1 contract

Samples: Agency Agreement (Kearny Financial Corp.)

Conditions of Agent’s Obligations. The obligations of the Agent hereunder shall be subject, in its discretion, to the condition that all representations and warranties and other statements of the Company herein or in certificates of any officer of the Company delivered pursuant to the provisions hereof are ~~subject to (i) the accuracy of,~~ true and correct as of the time of the execution of this Agreement, the date ~~hereof,~~ of any executed Terms Agreement and as of each ~~Bringdown~~ Registration Statement Amendment Date, Company Periodic Report Date, Applicable Time and ~~each Time of Sale (in each case~~Settlement Date, ~~as if made at such date), and compliance with, all representations, warranties and agreements of~~ to the condition that the Company ~~contained herein, (ii) the performance by the Company~~ shall have performed all of its obligations hereunder theretofore to be performed, and ~~(iii)~~ the following additional conditions: (a) ~~If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company~~ The Prospectus Supplement shall have been filed ~~the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus~~ with the Commission pursuant to Rule 424(b) under the 1933 Act on or prior to the date hereof and in accordance with Section 3(a) hereof, any other material required to be filed by the ~~manner and~~ Company pursuant to Rule 433(d) under the 1933 Act shall have been filed with the Commission within the applicable time ~~period so required (without reliance on~~ periods prescribed for such filings by Rule ~~424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective~~433; no stop order suspending the effectiveness of the Registration Statement or any part ~~thereof, any Rule 462(b)~~ thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the form of the Registration ~~Statement,~~ Statement or any post-effective amendment ~~thereof, nor~~ thereto pursuant to Rule 401(g)(2) under the 1933 Act shall have been received; no stop order suspending or preventing the use of the ~~Base Prospectus, the~~ Prospectus or any ~~Permitted~~ Issuer Free Writing Prospectus shall have been ~~issued; no proceedings for the issuance of such an order shall have been~~ initiated or ~~threatened~~threatened by the Commission; and ~~any request~~ all requests for additional information on the part of the Commission ~~for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise)~~ shall have been complied with to the reasonable satisfaction of the Agent~~'s satisfaction~~. (b) ~~The~~ On every date specified in Section 3(k) hereof and on such other dates as reasonably requested by Agent, Xxxxx Xxxxxx LLP, counsel for the Agent, shall have furnished to the Agent such written opinion or opinions, dated as of such date, with respect to such matters as the Agent may reasonably request, and such counsel shall ~~not~~ have ~~advised~~ received such papers and information as they may reasonably request to enable them to pass upon such matters. (c) On every date specified in Section 3(k) hereof and on such other dates as reasonably requested by Agent, Bass, Xxxxx & Xxxx PLC, counsel for the Company, shall have furnished to the Agent written opinion or opinions, dated as of such date, in form and substance reasonably satisfactory to the Agent. (d) At the dates specified in Section 3(l) hereof and on such other dates as reasonably requested by Agent, the independent accountants of the Company ~~that~~ who have certified the financial statements of the Company and its Subsidiaries included or incorporated by reference in the Registration Statement, the ~~Base Prospectus~~General Disclosure Package and the Prospectus shall have furnished to the Agent a letter dated as of the date of delivery thereof and addressed to the Agent in form and substance reasonably satisfactory to the Agent and its counsel, containing statements and information of the ~~Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which,~~ type ordinarily included in ~~the Agent's opinion, is material, or omits~~ accountants’ “comfort letters” to ~~state a fact which, in the Agent's opinion, is material and is required to be stated therein or is necessary to make the statements therein (i)~~ underwriters with respect to the financial statements of the Company and its Subsidiaries included or incorporated by reference in the Registration Statement, ~~not misleading~~ the General Disclosure Package and the Prospectus. (e) Prior to commencement of the offering of Shares under this Agreement, the Agent shall have received a certificate, signed on behalf of the Company by its corporate Secretary, in form and substance satisfactory to the Agent and its counsel. (i) Upon commencement of the offering of Shares under this Agreement and on such other dates as reasonably requested by Agent, the Company will furnish or cause to be furnished promptly to the Agent a certificate of an officer in a form satisfactory to the Agent stating the minimum price for the sale of such Shares pursuant to this Agreement and the maximum number of Shares that may be issued and sold pursuant to this Agreement or, alternatively, maximum gross proceeds from such sales, as authorized from time to time by the Company’s board of directors or a duly authorized committee thereof or, in connection with any amendment, revision or modification of such minimum price or maximum Share number or amount, a new certificate with respect thereto and (ii) ~~with respect~~ on each date specified in Section 3(j) and on such other dates as reasonably requested by Agent, the Agent shall have received a certificate of executive officers of the Company, one of whom shall be the Chief Financial Officer, Chief Accounting Officer, Treasurer, or Executive Vice President in the area of capital markets and investments, dated as of the date thereof, to the ~~Base Prospectus,~~ effect that (A) there has been no Material Adverse Effect since the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading. (c) Except as set forth or contemplated in the Base Prospectus, the Prospectus and any Permitted Free Writing Prospectus, subsequent to the respective dates date as of which information is given ~~therein~~in the General Disclosure Package and the Prospectus as then amended or supplemented, (B) the representations and warranties in Section 1 hereof are true and correct as of such date and (C) the Company ~~shall not have incurred any material liabilities or obligations, direct or contingent, or~~ has complied with all of the agreements entered into ~~any material transactions,~~ in connection with the transaction contemplated herein and satisfied all conditions on its part to be performed or ~~declared~~ satisfied. (g) Since the date of the latest audited financial statements then included or ~~paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change~~ incorporated by reference in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in General Disclosure Package and the Prospectus), ~~or any material change in the short-term or long-term debt, of the Company, or any~~ no Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described above, in the Agent's judgment, makes it impractical or inadvisable to offer or deliver the Sharesshall have occurred. (dh) The Company shall have ~~performed each~~ complied with the provisions of ~~its obligations under~~ Section ~~4(p)~~3(c) hereof with respect to the timely furnishing of prospectuses. (ei) ~~The~~ On such dates as reasonably requested by the Agent, the Company shall have ~~performed each of its obligations under Section 4(q)~~conducted due diligence sessions, in form and substance satisfactory to the Agent. (f) The Company shall have performed each of its obligations under Section 4(r). (g) FINRA shall not have raised any objection to the fairness and reasonableness of the terms and arrangements under this Agreement. (hj) All filings with the Commission required by Rule 424 under the ~~Securities~~ 1933 Act to have been filed by ~~the~~ each Applicable Time or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule ~~424~~424 (without reliance on Rule 424(b)(8)). (ik) The Company shall have furnished to Agent and the Agent's counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common Shares shall not have been suspended on the NASDAQ Capital Market. The Shares shall have ~~been listed and authorized~~ received approval for ~~trading~~ listing or quotation on ~~the NASDAQ Capital Market~~ Nasdaq prior to the first Settlement Date. (l) Prior to any Settlement Date, ~~and satisfactory evidence of such actions~~ the Company shall have ~~been provided~~ furnished to the Agent ~~and its counsel~~such further information, ~~which~~ documents or certificates as the Agent may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably request.

Appears in 1 contract

Samples: At the Market Equity Offering Sales Agreement (ClearPoint Neuro, Inc.)

Conditions of Agent’s Obligations. The Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to ~~(i)~~ the accuracy ofof the representations and warranties of the Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the MHC and the Bank made pursuant to the provisions hereof, ~~each Bringdown Date, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein, (ii)~~ to the performance by the ~~Company~~ Company, the MHC and the Bank of ~~its~~ their obligations ~~hereunder~~ hereunder, and ~~(iii)~~ to the following ~~additional~~ further conditions: (a) If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or ~~any part thereof~~proceedings therefor initiated or, ~~any Rule 462(b) Registration Statement~~to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or ~~any amendment thereof, nor suspending or preventing~~ the authorization for final use of the ~~Base Prospectus, the Prospectus or any Permitted Free Writing~~ Prospectus shall have been ~~issued;~~ issued or proceedings therefor initiated or threatened by the Commission or the FRB, and no ~~proceedings for~~ order suspending the ~~issuance~~ sale of ~~such an order~~ the Securities in any jurisdiction shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's satisfactionissued. (b) ~~The~~ At Closing Time, the Agent shall ~~not~~ have ~~advised~~ received: (i) The written opinion contained in Exhibit 1 hereof, dated as of Closing Time, of Xxxxxxx Procter LLP, special counsel for the ~~Company~~ Company, the MHC and the Bank, in form and substance satisfactory for the Agent. (ii) The favorable opinion contained in Exhibit 2 hereof, dated as of Closing Time, of Xxxx Xxxxxx, PC, counsel for the Agent, in form and substance satisfactory to the Agent. (iii) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Xxxxxxx Procter LLP and Xxxx Xxxxxx, PC shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration ~~Statement~~Statement (except for financial statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the ~~Base Prospectus~~time it became effective, ~~the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains~~ contained an untrue statement of a material fact ~~which, in the Agent's opinion, is material,~~ or ~~omits~~ omitted to state a material fact ~~which, in the Agent's opinion, is material and is~~ required to be stated therein or is necessary to make the statements therein not misleading or that the Prospectus (~~i) with respect~~ except for financial statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration ~~Statement~~Statement became effective or at the Closing Time, ~~not misleading and (ii) with respect~~ or that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted to state a material fact necessary in order to make the ~~Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus~~statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, Xxxxxxx Procter LLP and Xxxx Xxxxxx, PC may rely as to matters of fact on certificates of officers and directors of the Company, the MHC, the Bank and the Subsidiaries, as applicable, and certificates of public officials, and Xxxx Xxxxxx PC may also rely on the opinion of Xxxxxxx Procter LLP. (c) ~~Except as set forth or contemplated~~ At Closing Time referred to in ~~the Base Prospectus~~Section 2, the ~~Prospectus~~ Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Offerings in accordance with the Plan, the applicable Massachusetts Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Offerings imposed upon the Company, the MHC or the Bank by the Division, the FRB or any ~~Permitted Free Writing Prospectus~~other regulatory authority, ~~subsequent~~ other than those which the Division, the FRB or such other regulatory authority permits to be completed after the Offerings. (d) At Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given ~~therein~~in the Registration Statement and the Prospectus, ~~the Company shall not have incurred~~ any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any adverse change in the ~~capital stock~~financial condition, results of operations, business affairs or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in the Prospectus), or any material change in the short-term or long-term debt, prospects of the Company, ~~or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (~~the MHC, the Bank and the Subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of ~~business)~~business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC and of the Bank and the Chief Financial or ~~any~~ Chief Accounting Officer of the Company, of the MHC and of the Bank, dated as of Closing Time, to the effect that (i) there has been no such material ~~loss by strike~~adverse change, ~~fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred~~ (ii) there shall have been no material transaction entered into by the Company, the MHC, or the Bank from the latest date as of which the financial condition of the Company, the MHC or the Bank is set forth in the Registration Statement and the Prospectus, other than transactions specifically disclosed therein and transactions in the ordinary course of business consistent with past practice, (iii) neither the Company, the MHC, nor the Bank shall have received from the Division, the FRB or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or that materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC or the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC and the Bank has complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the best of their knowledge after inquiry, threatened by the Commission, and (vii) no order suspending the Subscription and Community Offering or Syndicated Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or, to the best of their knowledge, threatened by the Division and no person has sought to obtain regulatory or judicial review of the action of the Division in approving the Plan in accordance with the Massachusetts Regulations. (e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC and of the Bank, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the Prospectus fairly present the financial condition and results of operations of the Company and any subsidiary, as of and for the dates and periods covered by the Registration Statement and the Prospectus. (f) At the time of the execution of this Agreement, the Agent shall have received from Wolf & Company, P.C. a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the Company, the MHC, the Bank and the Subsidiaries within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the Massachusetts Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and Wolf & Company, P.C. set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the Company included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations and the Massachusetts Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) days prior to the date of this Agreement, there has been any increase in the long-term or short-term debt of the Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or shareholders’ equity of the Company, in each case as compared with the amounts shown in the consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from January 1, 2016 to a specified date not more than five (5) days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Company, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or will likely occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information that are included in the Registration Statement and Prospectus and that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company, the MHC and the Bank identified in such letter. (g) At Closing Time, the Agent shall have received from Wolf & Company, P.C. a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to Closing Time. (h) At Closing Time, the Securities and the Foundation Shares shall have been approved for listing on the Nasdaq Global Market upon notice of issuance. (i) At Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its Appraisal. (j) At Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent. (k) At any time prior to Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in ~~any such case described above, in~~ the judgment of the Agent~~'s judgment~~, ~~makes~~ is so material and adverse as to make it ~~impractical~~ impracticable to market the Securities or ~~inadvisable~~ to ~~offer~~ enforce contracts, including subscriptions or ~~deliver~~ orders, for the Shares. (d) The Company shall have performed each of its obligations under Section 4(p). (e) The Company shall have performed each of its obligations under Section 4(q). (f) The Company shall have performed each of its obligations under Section 4(r). (g) FINRA shall not have raised any objection to the fairness and reasonableness sale of the ~~terms~~ Securities, and ~~arrangements under this Agreement.~~ (hii) ~~All filings with~~ trading generally on either the ~~Commission required by Rule 424 under~~ New York Stock Exchange or the Securities Act to have been filed by the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished to Agent and the Agent's counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common Shares Nasdaq Stock Market shall not have been ~~suspended on the NASDAQ Capital Market. The Shares~~ suspended, and minimum or maximum prices for trading shall not have been ~~listed and authorized~~ fixed, or maximum ranges for ~~trading on~~ prices for securities have been required, by either of said Exchanges or by order of the ~~NASDAQ Capital Market prior to the first Settlement Date~~Commission or any other governmental authority, and ~~satisfactory evidence of such actions~~ a banking moratorium shall not have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably requestdeclared by either Federal or Massachusetts authorities.

Appears in 1 contract

Samples: Agency Agreement (HarborOne Bancorp, Inc.)

Conditions of Agent’s Obligations. The obligations of the Agent hereunder are subject to (i) the accuracy of, as of the date hereof, each Bringdown Date, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein, (ii) the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no stop order suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Base Prospectus, Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, Prospectus Supplement, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's ’s satisfaction. (b) The Agent shall not have advised the Company that the Registration Statement, the Base Prospectus, Prospectus Supplement, the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which, in the Agent's ’s opinion, is material, or omits to state a fact which, in the Agent's ’s opinion, is material and is required to be stated therein or is necessary to make the statements therein (i) with respect to the Registration Statement, not misleading and (ii) with respect to the Base Prospectus, Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading. (c) Except as set forth or contemplated in the Base Prospectus, Prospectus Supplement, the Prospectus and any Permitted Free Writing Prospectus, subsequent to the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in the Prospectus), or any material change in the short-term or long-term debt, of the Company, or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake, epidemic, pandemic, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described above, in the Agent's ’s judgment, makes it impractical or inadvisable to offer or deliver the Shares. (d) The Company shall have performed each of its obligations under Section ~~4(p~~3(p), (q), (r), (s), and (t). (e~~) The Company shall have performed each of its obligations under Section 4(q). (f) The Company shall have performed each of its obligations under Section 4(r). (g~~) FINRA shall not have raised any objection to the fairness and reasonableness of the terms and arrangements under this Agreement. (hf) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (ig) The Company shall have furnished to Agent and the Agent's ’s counsel such additional documents, certificates and evidence as they may have reasonably requested. (jh) Trading in the Common ~~Shares~~ Stock shall not have been suspended on ~~the NASDAQ Capital Market~~Nasdaq. The Shares shall have been listed and authorized for trading on ~~the NASDAQ Capital Market~~ Nasdaq prior to the first Settlement Date, and satisfactory evidence of such actions shall have been provided to the Agent and its counsel, which may include oral confirmation from a representative of ~~the NASDAQ Capital Market~~Nasdaq. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's ’s counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably request.

Appears in 1 contract

Samples: Equity Distribution Agreement (BT Brands, Inc.)

Conditions of Agent’s Obligations. The obligations of the ~~Agent~~ several Agents hereunder are subject to ~~(i)~~ the ~~accuracy of~~accuracy, as of the date ~~hereof, each Bringdown Date,~~ hereof and ~~each Time~~ as of ~~Sale~~ the Closing Date (~~in each case,~~ as if made at such ~~date~~Closing Date), of and compliance ~~with,~~ with all representations, warranties and agreements of the Company contained herein, ~~(ii)~~ to the performance by the Company of its obligations hereunder and ~~(iii)~~ to the following additional conditions: (a) If The Registration Statement shall have become effective not later than 5:00 p.m., Central time, on the ~~filing~~ date of ~~the Prospectus~~this Agreement, or ~~any amendment or supplement thereto~~such later time and date as Rxxx shall approve and all filings required by Rules 424, ~~or any Permitted Free Writing Prospectus, is required under the Securities Act or~~ 430B and 433 of the Rules and ~~Regulations, the Company~~ Regulations shall have ~~filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required~~ been timely made (without reliance on Rule 424(b)(8) or Rule 164(b))~~; the Registration Statement shall remain effective~~; no stop order suspending the effectiveness of the Registration Statement or any part ~~thereof, any Rule 462(b) Registration Statement,~~ thereof or any amendment thereof, nor suspending or preventing the use of the ~~Base Prospectus~~Time of Sale Disclosure Package, the Prospectus or any ~~Permitted Free Writing Prospectus~~ issuer free writing prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the ~~Base Prospectus~~Time of Sale Disclosure Package, the Prospectus, any ~~Permitted Free Writing Prospectus~~ issuer free writing prospectus or otherwise) shall have been complied with to the ~~Agent's~~ Agents’ reasonable satisfaction. (b) ~~The~~ No Agent shall ~~not~~ have advised the Company that (i) the Registration ~~Statement~~Statement or any amendment thereof or supplement thereto contains an untrue statement of a material fact which, in such Agent’s reasonable opinion based on the ~~Base Prospectus~~advice of counsel, is material or omits to state a material fact which, in the Agents’ reasonable opinion based on the advice of counsel, is required to be stated therein or necessary to make the statements therein not misleading, or (ii) the Time of Sale Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any ~~Permitted Free Writing Prospectus,~~ issuer free writing prospectus contains an untrue statement of fact which, in such Agent’s reasonable opinion based on the ~~Agent's opinion~~advice of counsel, is material, or omits to state a fact which, in such Agent’s reasonable opinion based on the ~~Agent's opinion~~advice of counsel, is material and is required to be stated ~~therein~~ therein, or is necessary to make the statements ~~therein (i) with respect to the Registration Statement, not misleading and (ii) with respect to the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus~~therein, in light of the circumstances under which they ~~were~~ are made, not misleading. (c) Except as ~~set forth or~~ contemplated in the ~~Base Prospectus~~Registration Statement, Time of Sale Disclosure Package and in the ~~Prospectus and any Permitted Free Writing~~ Prospectus, subsequent to the respective dates as of which information is given ~~therein~~in the Registration Statement, Time of Sale Disclosure Package and the Prospectus, neither the Company nor any of its subsidiaries shall ~~not~~ have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital ~~stock~~ stock; and there shall not have been any change in the capital ~~stock~~stock (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants or conversion of convertible securities), or any material increase in the short-term or long-term debt of the Company (other than as a result of the conversion of convertible securities), or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock ~~(other than as a result~~ of the ~~exercise of any currently outstanding options or warrants that are disclosed in the Prospectus),~~ Company or any ~~material change in the short-term or long-term debt,~~ of ~~the Company~~its subsidiaries, or any Material Adverse ~~Effect~~ Change or any development ~~that would be reasonably likely to result in~~ involving a prospective Material Adverse ~~Effect~~ Change (whether or not arising in the ordinary course of business), ~~or any material loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described above~~that, in the ~~Agent's~~ Agents’ judgment, makes it impractical or inadvisable to offer or deliver the ~~Shares~~Securities on the terms and in the manner contemplated in the Registration Statement, Time of Sale Disclosure Package and in the Prospectus. (d) ~~The Company~~ On each Closing Date, there shall have ~~performed each~~ been furnished to the Agents the opinion of ~~its obligations under Section 4(p)~~Axxxxxx Xxxxx LLP, counsel for the Company, dated such Closing Date and addressed to the Agents in substantially the form attached hereto as Exhibit C-1. (e) ~~The Company~~ On each Closing Date, there shall have ~~performed each~~ been furnished to the Agents the opinion of ~~its obligations under Section 4(q)~~the Sprinkle IP Law Group, patent counsel for the Company, dated such Closing Date and addressed to the Agents in substantially the form attached hereto as Exhibit C-2. (f) ~~The Company~~ On each Closing Date, there shall have ~~performed each of its obligations under Section 4(r)~~been furnished to the Agents such opinion or opinions from Faegre Bxxxx Dxxxxxx LLP, counsel for the Agents, dated such Closing Date and addressed to the Agents, with respect to such matters as the Agents reasonably may request, and such counsel shall have received such papers and information as they request to enable them to pass upon such matters. (g) On the date hereof, on the effective date of any post-effective amendment to the Registration Statement filed after the date hereof and on each Closing Date, the Agents, shall have received a letter from PMB Hxxxx Xxxxxxx, LLP, dated such date and addressed to the Agents, in form and substance satisfactory to the Agents. (h) On each Closing Date, there shall have been furnished to the Agents a certificate, dated such Closing Date and addressed to the Agents, signed by the chief executive officer and by the chief financial officer of the Company, to the effect that: (A) The representations and warranties of the Company in this Agreement are true and correct as if made at and as of such Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date; and (B) No stop order or other order suspending the effectiveness of the Registration Statement or any part thereof or any amendment thereof or the qualification of the Securities for offering or sale, nor suspending or preventing the use of the Time of Sale Disclosure Package, the Prospectus or any issuer free writing prospectus has been issued, and no proceeding for that purpose has been instituted or, to the best of their knowledge, is contemplated by the Commission or any state or regulatory body. (i) The Agents shall have received all of the Lock-Up Agreements referenced in Section 4 and the Lock-Up Agreements shall remain in full force and effect (except for any termination of such Lock-Up Agreements pursuant to the express terms thereof). (j) The Company shall have furnished to the Agents and counsel for the Agents such additional documents, certificates and evidence as the Agents may have reasonably requested. (k) FINRA shall ~~not~~ have raised ~~any~~ no objection to the fairness and reasonableness of the agent terms and ~~arrangements under this Agreement~~arrangements. (hl) ~~All filings with~~ The Units, the ~~Commission required by Rule 424 under~~ Shares and the ~~Securities Act~~ Warrant Shares to be delivered on the Closing Date will have been ~~filed by~~ approved for listing on the ~~Settlement Date~~ Nasdaq Capital Market. (m) On the Closing Date, there shall have been ~~made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have~~ furnished to ~~Agent~~ the Agents, in the form the Agents reasonably request, a certificate dated as of the Closing Date and addressed to the Agents, signed by the chief financial officer of the Company, regarding specified financial information contained in the Registration Statement, the Time of Sale Disclosure Package and the ~~Agent's counsel such additional documents~~Prospectus relating to periods ended October 31, certificates and evidence as they may have reasonably requested. (j) Trading in the Common Shares shall not have been suspended on the NASDAQ Capital Market. The Shares shall have been listed and authorized for trading on the NASDAQ Capital Market prior to the first Settlement Date, and satisfactory evidence of such actions shall have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the NASDAQ Capital Market2014. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are ~~reasonably~~ satisfactory in form and substance to ~~Agent~~ the Agents and counsel for the ~~Agent's counsel~~Agents. The Company will furnish ~~Agent~~ the Agents with such conformed copies of such opinions, certificates, letters and other documents as ~~Agent~~ the Agents shall reasonably request.

Appears in 1 contract

Samples: Placement Agency Agreement (Crossroads Systems Inc)

Conditions of Agent’s Obligations. The obligations of the Agent hereunder are subject to (i) the accuracy of, as of the date hereof, each Bringdown Date, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein, (ii) the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) If ~~the~~ filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no stop order suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's ’s satisfaction. (b) The Agent shall not have advised the Company that the Registration Statement, the Base Prospectus, the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which, in the Agent's ’s opinion, is material, or omits to state a fact which, in the Agent's ’s opinion, is material and is required to be stated therein or is necessary to make the statements therein (i) with respect to the Registration Statement, not misleading and (ii) with respect to the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading. (c) Except as set forth or contemplated in the Base Prospectus, the Prospectus and any Permitted Free Writing Prospectus, subsequent to the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in the Prospectus), or any material change in the short-term or long-term debt, of the Company, or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described above, in the Agent's ’s judgment, makes it impractical or inadvisable to offer or deliver the Shares. (d) The Company shall have performed each of its obligations under Section ~~4(p~~4(q). (e) The Company shall have performed each of its obligations under Section ~~4(q~~4(r). (f) The Company shall have performed each of its obligations under Section ~~4(r~~4(s). (g) ~~FINRA~~ The Financial Industry Regulatory Authority, Inc. shall ~~not~~ have raised ~~any~~ no objection to the fairness and reasonableness of the underwriting terms and ~~arrangements under this Agreement~~arrangements. (h) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished to Agent and the Agent's ’s counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common ~~Shares~~ Stock shall not have been suspended on the NASDAQ Capital Market. The Shares shall have been listed and authorized for trading on the NASDAQ Capital ~~Market prior to the first Settlement Date~~Market, and satisfactory evidence of such actions shall have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's ’s counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably request.

Appears in 1 contract

Samples: Equity Distribution Agreement (Recon Technology, LTD)

Conditions of Agent’s Obligations. The obligations of the Agent hereunder are subject to (i) the accuracy of, as of the date hereof, each Bringdown Date, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein, (ii) the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no stop order suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Base Prospectus, Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, Prospectus Supplement, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's ’s satisfaction. (b) The Agent shall not have advised the Company that the Registration Statement, the Base Prospectus, Prospectus Supplement, the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which, in the Agent's ’s opinion, is material, or omits to state a fact which, in the Agent's ’s opinion, is material and is required to be stated therein or is necessary to make the statements therein (i) with respect to the Registration Statement, not misleading and (ii) with respect to the Base Prospectus, Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading. (c) Except as set forth or contemplated in the Base Prospectus, Prospectus Supplement, the Prospectus and any Permitted Free Writing Prospectus, subsequent to the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding ~~options~~ restricted stock units or warrants that are disclosed in the Prospectus), or any material change in the short-term or long-term debt, of the Company, or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake, epidemic, pandemic, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described above, in the Agent's ’s judgment, makes it impractical or inadvisable to offer or deliver the Shares. (d) The Company shall have performed each of its obligations under Section ~~4(p~~3(p), (q), (r), (s), (t) and (u). (e~~) The Company shall have performed each of its obligations under Section 4(q). (f) The Company shall have performed each of its obligations under Section 4(r). (g~~) FINRA shall not have raised any objection to the fairness and reasonableness of the terms and arrangements under this Agreement. (hf) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (ig) The Company shall have furnished to Agent and the Agent's ’s counsel such additional documents, certificates and evidence as they may have reasonably requested. (jh) Trading in the Common ~~Shares~~ Stock shall not have been suspended on ~~the NASDAQ Capital Market~~Nasdaq. The Shares shall have been listed and authorized for trading on ~~the NASDAQ Capital Market~~ Nasdaq prior to the first Settlement Date, and satisfactory evidence of such actions shall have been provided to the Agent and its counsel, which may include oral confirmation from a representative of ~~the NASDAQ Capital Market~~The Nasdaq Stock Market LLC. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's ’s counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably request.

Appears in 1 contract

Samples: Equity Distribution Agreement (Heart Test Laboratories, Inc.)

Conditions of Agent’s Obligations. The obligations of the Agent hereunder are subject to (i) the accuracy ~~of, as~~ of the ~~date hereof, each Bringdown Date,~~ representations and ~~each Time of Sale (in each case, as if made at such date), and compliance with, all representations,~~ warranties ~~and agreements~~ on the part of the Company ~~contained herein~~on the date hereof and as of each Registration Statement Amendment Date, Company Earnings Report Date, Company Periodic Report Date, Applicable Time and Settlement Date, (ii) the performance by the Company of its obligations hereunder and (iii) the following additional ~~conditions~~conditions precedent: (ai) If No stop order with respect to the ~~filing~~ effectiveness of the ~~Prospectus~~Registration Statement shall have been issued under the 1933 Act or the 1933 Act Regulations or proceedings initiated under Section 8(d) or 8(e) of the 0000 Xxx and no order directed at any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or to the knowledge of the Company or the Agent of the initiation or threatening of any ~~amendment or supplement~~ proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto, or ~~any Permitted Free Writing Prospectus~~modifications thereof, is if any, shall 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 not misleading; (iii) the Prospectus and all amendments or supplements thereto, or modifications thereof, if any, and the General Disclosure Package shall 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 the light of the circumstances under ~~the Securities Act or the Rules and Regulations~~which they are made, not misleading; (iv) the Company shall have filed the ~~Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus~~ Prospectus, and any amendments and supplements thereto, with the Commission (including the information required by Rule 430B) in the manner and within the time period so required ~~(without reliance on~~ by the 1933 Act and the 1933 Act Regulations, and any post-effective amendment thereto containing the information required by Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no stop order suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus 430B shall have ~~been issued; no proceedings for the issuance of such an order shall have been initiated or threatened;~~ become effective and ~~any request of the Commission for additional information~~ (v) all material required to be ~~included in~~ filed by the ~~Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise~~Company pursuant to Rule 433(d) shall have been ~~complied~~ filed with to the ~~Agent's satisfaction~~Commission within the applicable time periods prescribed for such filings under Rule 433. (b) ~~The Agent~~ In the judgment of the Agent, there shall not have ~~advised the Company that the Registration Statement, the Base Prospectus, the Prospectus, or~~ occurred any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which, in the Agent's opinion, is material, or omits to state a fact which, in the Agent's opinion, is material and is required to be stated therein or is necessary to make the statements therein (i) with respect to the Registration Statement, not misleading and (ii) with respect to the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleadingMaterial Adverse Effect. (c) ~~Except~~ The Company shall cause to be furnished to the Agent and the Forward Purchaser, on every date specified in Section 3(n) hereof (except as ~~set forth or contemplated~~ provided in the ~~Base Prospectus~~last sentence of Section 3(n)), the ~~Prospectus~~ opinion and ~~any Permitted Free Writing Prospectus~~negative assurance letter of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, ~~subsequent~~ or other counsel reasonably satisfactory to the ~~respective dates~~ Agent, addressed to the Agent and the Forward Purchaser, dated as of ~~which information is given therein~~such date, in form reasonably satisfactory to the Agent, the ~~Company shall not have incurred any material liabilities or obligations~~Forward Purchaser and their counsel, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change substantially in the ~~capital stock, or any issuance~~ form of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in the Prospectus), or any material change in the short-term or long-term debt, of the Company, or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described above, in the Agent's judgment, makes it impractical or inadvisable to offer or deliver the SharesExhibit C-1 and Exhibit C-2 attached hereto. (d) The Company shall ~~have performed each~~ cause to be furnished to the Agent and the Forward Purchaser, on every date specified in Section 3(o) hereof (except as provided in the last sentence of Section 3(o)), from PricewaterhouseCoopers LLP (and any other independent registered public accounting firm whose report is incorporated by reference into the Registration Statement), letters dated the date of delivery thereof and addressed to the Agent and the Forward Purchaser in form and substance satisfactory to the Agent, the Forward Purchaser and their counsel, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements of the Company and its ~~obligations under Section 4(p)~~subsidiaries included or incorporated by reference in the Registration Statement. (e) The Company shall furnish to the Agent and the Forward Purchaser, on each date specified in Section 3(m) hereof (except as provided in the last sentence of Section 3(m)), a certificate of two of its executive officers to the effect that (i) the representations and warranties of the Company as set forth in this Agreement are true and correct as of the date of such certificate (the “Certificate Date”), (ii) the Company shall have performed ~~each~~ such of its obligations under this Agreement as are to be performed at or before each such Certificate Date and (iii) the conditions set forth in paragraphs (a) and (b) of this Section ~~4(q)~~4 have been met. (f) On the date hereof, the Agent and the Forward Purchaser shall have received the opinion of Sidley Austin LLP, or other counsel reasonably satisfactory to the Agent, dated the date hereof and addressed to the Agent and the Forward Purchaser in form and substance reasonably satisfactory to the Agent and the Forward Purchaser. On every date specified in Section 3(n) hereof, the Agent and the Forward Purchaser shall have received a negative assurance letter of Sidley Austin LLP, or other counsel reasonably satisfactory to the Agent, dated as of such date, in form and substance satisfactory to the Agent and the Forward Purchaser. (g) All filings with the Commission required by Rule 424 of the 1933 Act Regulations to have been filed by each Applicable Time or related Settlement Date, as the case may be, shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)). (h) The Settlement Shares shall have been approved for listing on the NYSE, subject to official notice of issuance. The Agent acknowledges that as of the date of this Agreement, 8,333,334 shares of Common Stock have been approved for listing on the NYSE. (i) The Company shall have ~~performed~~ furnished to the Agent and the Forward Purchaser such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement, the Prospectus and the General Disclosure Package as of each ~~of its obligations under Section 4(r)~~Settlement Date as the Agent and the Forward Purchaser may reasonably request. (gj) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the 1933 Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations. (k) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. (hl) ~~All filings with~~ No amendment or supplement to the ~~Commission required~~ Registration Statement or Prospectus, including documents deemed to be incorporated by ~~Rule 424 under~~ reference therein, shall be filed to which the ~~Securities Act to have been filed by the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424~~Agent objects in writing. (im) ~~The Company shall have furnished to Agent~~ Except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the ~~Agent's counsel such additional documents~~Prospectus, ~~certificates~~ since the later of the time of execution of this Agreement and ~~evidence as they may have reasonably requested. (j) Trading in~~ the ~~Common Shares~~ most recent Applicable Time, there shall not have ~~been suspended on the NASDAQ Capital Market. The Shares~~ occurred any downgrading, nor shall any notice, announcement or written indication have been ~~listed and authorized for trading on~~ given or made of any intended or potential downgrading in the ~~NASDAQ Capital Market prior to~~ rating accorded any securities of or guaranteed by the ~~first Settlement Date, and satisfactory evidence of such actions shall have been provided to the Agent and its counsel, which may include oral confirmation from a representative~~ Company by any “nationally recognized statistical rating organization,” as that term is defined in Rule 436(g)(2) of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably request1933 Act Regulations.

Appears in 1 contract

Samples: Equity Distribution Agreement (Affiliated Managers Group, Inc.)

Conditions of Agent’s Obligations. The obligations of the Agent hereunder shall be subject, in its discretion, to the condition that all representations and warranties and other statements of the Company herein or in certificates of any officer of the Company delivered pursuant to the provisions hereof are ~~subject to (i) the accuracy of,~~ true and correct as of the time of the execution of this Agreement, the date ~~hereof,~~ of any executed Terms Agreement and as of each ~~Bringdown~~ Representation Date, Applicable Time and ~~each Time of Sale (in each case~~Settlement Date, ~~as if made at such date), and compliance with, all representations, warranties and agreements of~~ to the condition that the Company ~~contained herein, (ii) the performance by the Company~~ shall have performed all of its obligations hereunder theretofore to be performed, and ~~(iii)~~ the following additional conditions: (a) ~~If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company~~ The Prospectus Supplement shall have been filed ~~the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus~~ with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations on or prior to the date hereof and in accordance with Section 3(a) hereof, any other material required to be filed by the ~~manner and~~ Company pursuant to Rule 433(d) of the 1933 Act Regulations shall have been filed with the Commission within the applicable time ~~period so required (without reliance on~~ periods prescribed for such filings by Rule ~~424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective~~433; no stop order suspending the effectiveness of the Registration Statement or any part ~~thereof, any Rule 462(b) Registration Statement,~~ thereof shall have been issued and no proceeding for that purpose shall have been initiated or ~~any amendment thereof, nor~~ threatened by the Commission; no stop order suspending or preventing the use of the ~~Base Prospectus, the~~ Prospectus or any ~~Permitted~~ Issuer Free Writing Prospectus shall have been ~~issued; no proceedings for the issuance of such an order shall have been~~ initiated or ~~threatened~~threatened by the Commission; and ~~any request~~ all requests for additional information on the part of the Commission ~~for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise)~~ shall have been complied with to the reasonable satisfaction of the Agent~~'s satisfaction~~. (b) ~~The~~ On every date specified in Section 3(j) hereof, K&L Gates LLP, counsel for the Agent, shall have furnished to the Agent such written opinion or opinions, dated as of such date, with respect to such matters as the Agent may reasonably request, and such counsel shall ~~not~~ have ~~advised~~ received such papers and information as they may reasonably request to enable them to pass upon such matters. (c) On every date specified in Section 3(j) hereof, DLA Piper LLP (US), counsel for the ~~Company that~~ Company, shall have furnished to the Agent written opinions, dated as of such date, substantially in the forms attached hereto as Exhibits A-1 and A-2, respectively, and to such further effect as counsel to the Agent may reasonably request. (d) At the dates specified in Section 3(k) hereof, Withum, and any other independent accountants who have certified the financial statements included or incorporated by reference in the Registration Statement, the ~~Base Prospectus~~General Disclosure Package and the Prospectus shall have furnished to the Agent a letter or letters dated as of the date of delivery thereof and addressed to the Agent in form and substance reasonably satisfactory to the Agent and its counsel, containing statements and information of the ~~Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which,~~ type ordinarily included in ~~the Agent's opinion, is material, or omits~~ accountants’ “comfort letters” to ~~state a fact which, in the Agent's opinion, is material and is required to be stated therein or is necessary to make the statements therein (i)~~ underwriters with respect to the financial statements included or incorporated by reference in the Registration Statement, ~~not misleading~~ the General Disclosure Package and ~~(ii) with respect to~~ the ~~Base~~ Prospectus~~, the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading~~. (ce) ~~Except as set forth or contemplated~~ On each date specified in ~~the Base Prospectus~~Section 3(i) hereof, the ~~Prospectus~~ Agent shall have received a certificate of the Chief Executive Officer and the Chief Financial Officer of the Company, dated as of the date thereof, to the effect that (A) the Registration Statement has been declared effective under the 1933 Act and no stop order suspending the effectiveness of the Registration Statement or no order preventing or suspending the use of any ~~Permitted~~ Issuer Free Writing ~~Prospectus~~Prospectus or the Prospectus has been issued, ~~subsequent~~ and no proceedings for such purpose or pursuant to Section 8A of the 1933 Act have been taken or are, to his or her knowledge, contemplated or threatened by the Commission; (B) there has been no Material Adverse Effect, or any development or occurrence that would reasonably be expected to have a Material Adverse Effect, since the respective dates as of which information is given ~~therein~~in the Registration Statement, the General Disclosure Package and the Prospectus as each is then amended or supplemented, (C) the representations and warranties of the Company ~~shall not have incurred any material liabilities or obligations, direct or contingent, or~~ contained herein are true and correct as of such date and (D) the Company has complied with all of the agreements entered into in connection with the transactions contemplated herein and in any ~~material transactions,~~ Terms Agreement and satisfied all conditions on its part to be performed or ~~declared~~ satisfied. (f) Since the date of the latest audited financial statements then included or ~~paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change~~ incorporated by reference in the ~~capital stock~~Registration Statement, ~~or any issuance of options, warrants, convertible securities or other rights to purchase~~ the ~~capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in~~ General Disclosure Package and the Prospectus), ~~or any material change in the short-term or long-term debt, of the Company, or any~~ no Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described above, in the Agent's judgment, makes it impractical or inadvisable to offer or deliver the Sharesshall have occurred. (dg) The Company shall have ~~performed each~~ complied with the provisions of ~~its obligations under~~ Section ~~4(p). (e~~3(c) The Company shall have performed each of its obligations under Section 4(q). (f) The Company shall have performed each of its obligations under Section 4(r). (g) FINRA shall not have raised any objection hereof with respect to the ~~fairness and reasonableness~~ timely furnishing of ~~the terms and arrangements under this Agreement~~prospectuses. (h) On such dates as reasonably requested by the Agent, the Company shall have conducted due diligence sessions, in form and substance reasonably satisfactory to the Agent. (i) All filings with the Commission required by Rule 424 ~~under~~ of the ~~Securities~~ 1933 Act Regulations to have been filed by ~~the~~ each Applicable Time or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule ~~424.~~ 424 (~~i) The Company shall have furnished to Agent and the Agent's counsel such additional documents, certificates and evidence as they may have reasonably requested~~without reliance on Rule 424(b)(8)). (j) ~~Trading in the Common Shares shall not have been suspended on the NASDAQ Capital Market.~~ The Shares shall have been ~~listed and authorized~~ approved for ~~trading~~ listing on the ~~NASDAQ Capital Market prior to~~ NYSE as of the ~~first Settlement Date, and satisfactory evidence~~ date of ~~such actions~~ this Agreement. (k) Counsel for the Agent shall have been ~~provided~~ furnished with such documents and opinions as they may reasonably require in order to evidence the ~~Agent and its counsel, which may include oral confirmation from a representative~~ accuracy of any of the ~~NASDAQ Capital Market. All such opinions~~representations or warranties, ~~certificates~~or the fulfillment of any of the conditions, ~~letters~~ contained herein or in any applicable Terms Agreement; and ~~other documents will be~~ all proceedings taken by the Company in ~~compliance~~ connection with the ~~provisions hereof only if they are~~ issuance and sale of the Shares as contemplated herein or in any applicable Terms Agreement and in connection with the other transactions contemplated by this Agreement or any such Terms Agreement shall be reasonably satisfactory in form and substance to the Agent and counsel for the Agent~~'s counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably request~~.

Appears in 1 contract

Samples: Equity Offering Sales Agreement (PARTS iD, Inc.)

Conditions of Agent’s Obligations. The obligations of the Agent hereunder are subject to (i) the accuracy of, as of the date hereof, each Bringdown Date, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein, (ii) the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities ~~Act or the Rules and Regulations~~Act, the Company shall 26 have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no stop order suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof, ~~nor~~ or suspending or preventing the use of the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's ’s satisfaction. (b) The Agent shall not have advised the Company that the Registration Statement, the Base Prospectus, the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which, in the Agent's ’s opinion, is material, or omits to state a fact which, in the Agent's ’s opinion, is material and is required to be stated therein or is necessary to make the statements therein (i) with respect to the Registration Statement, not misleading and (ii) with respect to the Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading. (c) Except as set forth or contemplated in the Base Prospectus, the Prospectus and any Permitted Free Writing Prospectus, subsequent to the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in the Prospectus), or any material change in the short-term or long-term debt, of the Company, or any Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described above, in the Agent's ’s judgment, makes it impractical or inadvisable to offer or deliver the Shares. (d) The Company shall have performed each of its obligations under Section ~~4(p~~3(q). (e) The Company shall have performed each of its obligations under Section ~~4(q~~3(r). (f) The Company shall have performed each of its obligations under Section ~~4(r~~3(s). (g) FINRA shall not have raised any objection to the fairness and reasonableness of the terms and arrangements under this Agreement. (h) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424.. 27 (i) The Company shall have furnished to the Agent and the Agent's ’s counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common ~~Shares~~ Stock shall not have been suspended on the NASDAQ Capital Market. The Shares shall have been listed and authorized for trading on the NASDAQ Capital Market prior to the first Settlement Date, and satisfactory evidence of such actions shall have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Agent and the Agent's ’s counsel. The Company will furnish the Agent with such conformed copies of such opinions, certificates, letters and other documents as the Agent shall reasonably request.

Appears in 1 contract

Samples: Equity Distribution Agreement (Lm Funding America, Inc.)

Conditions of Agent’s Obligations. The obligations of ~~the~~ each Agent hereunder are subject to (i) the accuracy ~~of, as~~ of the representations and warranties on the part of the Company and the Operating Partnership on the date hereof, any applicable Representation Date and as of each ~~Bringdown~~ Settlement Date~~, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein~~, (ii) the performance by the Company and the Operating Partnership of ~~its~~ their obligations hereunder and (iii) to the following additional ~~conditions:~~conditions precedent. (ai) If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no No stop order ~~suspending~~ with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8(d) or 8(e) of the Act, and no order directed at or in relation to any ~~part thereof, any Rule 462(b) Registration Statement,~~ document incorporated by reference therein and no order preventing or ~~any amendment thereof, nor~~ suspending ~~or preventing~~ the use of the ~~Base Prospectus~~Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or to the knowledge of the Company, the ~~Prospectus~~ Operating Partnership or the Agents of the initiation or threatening of any ~~Permitted Free Writing Prospectus shall have been issued; no~~ proceedings for ~~the issuance~~ any of such ~~an order shall have been initiated or threatened~~purposes, has occurred; ~~and any request of the Commission for additional information~~ (~~to be included in~~ ii) the Registration ~~Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's satisfaction. (b) The Agent~~ Statement and all amendments thereto shall not ~~have advised the Company that the Registration Statement, the Base Prospectus, the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains~~ contain an untrue statement of a material fact ~~which, in the Agent's opinion, is material,~~ or ~~omits~~ omit to state a material fact ~~which, in the Agent's opinion, is material and is~~ required to be stated therein or is necessary to make the statements therein not misleading; (iiii) ~~with respect to~~ none of the ~~Registration Statement, not misleading and (ii) with respect to~~ Basic Prospectus or the ~~Base~~ Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the ~~Prospectus or any Permitted Free Writing Prospectus~~statements therein, in the light of the circumstances under which they ~~were~~ are made, not misleading; (iv) no Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (v) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading. (cb) ~~Except as set forth or contemplated in the Base Prospectus, the Prospectus and any Permitted Free Writing Prospectus, subsequent~~ Subsequent to the respective dates as of which information is given ~~therein~~in the Registration Statement, the ~~Company shall not have incurred any~~ Basic Prospectus, the Prospectus and the Permitted Free Writing Prospectuses, if any, no material ~~liabilities~~ and unfavorable change, financial or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock otherwise (other than as ~~a result of the exercise of any currently outstanding options or warrants that are disclosed~~ referred to in the Registration Statement and Prospectus), ~~or any material change~~ in the ~~short-term~~ business, condition or ~~long-term debt,~~ prospects of the ~~Company, or any Material Adverse Effect or any development that would be reasonably likely to result in~~ Company and its Subsidiaries taken as a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described abovewhole, in the ~~Agent's judgment~~judgment of the Agents, ~~makes it impractical~~ shall occur or ~~inadvisable~~ become known and no transaction which is material and unfavorable to ~~offer~~ the Company (other than as referred to in the Registration Statement and Prospectus) in the judgment of the Agents, shall have been entered into by the Company or ~~deliver~~ any of its Subsidiaries. (c) The Company shall furnish to the ~~Shares~~Agents, at every date specified in Section 4(p) of this Agreement, opinions of Company Counsel, addressed to the Agents, and dated as of such date, and in form satisfactory to the Agents, in the forms set forth in Exhibit X-0, Xxxxxxx X-0 and Exhibit A-3 hereto. (d) The Company shall ~~have performed each of its obligations under~~ furnish to the Agents, at every date specified in Section 4(p)) of this Agreement, an opinion of Maryland Counsel, addressed to the Agents, and dated as of such date, and in form satisfactory to the Agents, in the form set forth in Exhibit B hereto. (e) ~~The Company~~ At the dates specified in Section 4(u) of this Agreement, the Agents shall have ~~performed each~~ received from the Accountants letters dated the date of ~~its obligations under Section 4(q)~~delivery thereof and addressed to the Agents in form and substance satisfactory to the Agents. (f) The Company shall ~~have~~ deliver to the Agents, at every Representation Date specified in Section 4(p) of this Agreement, a certificate of two of its executive officers to the effect that (i) the representations and warranties of the Company and the Operating Partnership as set forth in this Agreement are true and correct as of the Representation Date, (ii) the Company has performed ~~each~~ in all material respects such of its obligations under this Agreement as are to be performed at or before such Representation Date, and (iii) the conditions set forth in paragraphs (a) and (b) of Section ~~4(r)~~6 have been met. The certificate shall also state that the Shares have been duly and validly authorized by the Company, that all corporate action required to be taken for the issuance and sale of the Shares has been validly and sufficiently taken, and that the Company’s Board of Directors or any other body with authority has not revoked, rescinded or otherwise modified or withdrawn such authorization or corporate action. (g) ~~FINRA~~ The Agents shall ~~not~~ have ~~raised any objection~~ received, at every date specified in Section 4(t) of this Agreement, the favorable opinion of Xxxxx Xxxxx LLP, counsel to the ~~fairness~~ Agents, dated as of such date, and ~~reasonableness of~~ in form and substance satisfactory to the ~~terms and arrangements under this Agreement~~Agents. (h) The Agents shall have received, at every date specified in Section 4(s) of this Agreement, a certificate of the Secretary of the Company, dated as of such date, and in form and substance satisfactory to the Agents. (i) All filings with the Commission required by Rule 424 or Rule 433 under the ~~Securities~~ Act ~~to have been filed by the Settlement Date~~ shall have been made within the applicable time period prescribed for such filing by Rule ~~424.~~ 424 (iwithout reliance on Rule 424 (b)(8)) ~~The Company shall have furnished to Agent~~ and ~~the Agent's counsel such additional documents~~Rule 433, ~~certificates and evidence as they may have reasonably requested~~respectively. (j) ~~Trading in the Common Shares shall not have been suspended on the NASDAQ Capital Market.~~ The Shares shall have been ~~listed and authorized~~ approved for ~~trading~~ listing on the ~~NASDAQ Capital Market~~ NYSE, subject only to notice of issuance at or prior to the ~~first~~ Settlement Date, and satisfactory evidence of such actions shall have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably request.

Appears in 1 contract

Samples: Equity Distribution Agreement (Global Net Lease, Inc.)

Conditions of Agent’s Obligations. The Company, the Bank and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder are subject to ~~(i)~~ the accuracy ~~of,~~ of the representations and warranties of the Company and the Bank herein contained as of the date ~~hereof~~hereof and the Closing Time, ~~each Bringdown Date,~~ to the accuracy of the statements of officers and ~~each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements~~ directors of the Company ~~contained herein~~and the Bank made pursuant to the provisions hereof, ~~(ii)~~ to the performance by the Company and the Bank of ~~its~~ their obligations ~~hereunder~~ hereunder, and ~~(iii)~~ to the following ~~additional~~ further conditions: (a) If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no No stop order suspending the effectiveness of the Registration ~~Statement~~ Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any ~~part thereof, any Rule 462(b)~~ prospectus included in a post- effective amendment to the Registration Statement, shall have been issued or ~~any amendment thereof~~proceedings therefor initiated or, ~~nor suspending or preventing~~ to the ~~use~~ knowledge of the ~~Base Prospectus~~Company, threatened by the Commission, the ~~Prospectus~~ OCC or the FRB and no order suspending the sale of the Securities in any ~~Permitted Free Writing Prospectus~~ jurisdiction shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's satisfaction. (b) ~~The~~ At the Closing Time, the Agent shall ~~not~~ have ~~advised~~ received: (1) The favorable opinion, dated as of the Closing Time, of Lxxx Xxxxxx, PC, counsel for the Company and the Bank, in form and substance satisfactory to counsel for the Agent, as attached hereto as Exhibit A. (2) The favorable opinion, dated as of the Closing Time, of Kxxxxxxxxx Txxxxxxx & Sxxxxxxx LLP, counsel for the Agent, as to such matters as the Agent may reasonably require. (3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Lxxx Xxxxxx, PC and Kxxxxxxxxx Txxxxxxx & Sxxxxxxx LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration ~~Statement~~Statement (except for financial statements and schedules and other financial, pro forma, appraisal or statistical data included therein, as to which counsel need make no statement), at the ~~Base Prospectus~~time it became effective, ~~the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains~~ contained an untrue statement of a material fact ~~which, in the Agent's opinion, is material,~~ or ~~omits~~ omitted to state a material fact ~~which, in the Agent's opinion, is material and is~~ required to be stated therein or is necessary to make the statements therein not misleading or that the Prospectus (~~i) with respect~~ except for financial statements and schedules and other financial, pro forma, appraisal or statistical data included therein, as to which counsel need make no statement), at the time the Registration ~~Statement~~Statement became effective, ~~not misleading and (ii) with respect to~~ as of the ~~Base Prospectus,~~ date of the Prospectus or ~~any Permitted Free Writing Prospectus~~at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, Lxxx Xxxxxx, PC and Kxxxxxxxxx Txxxxxxx & Sxxxxxxx LLP may rely as to matters of fact on certificates of officers and directors of the Company and the Bank and certificates of public officials. Kxxxxxxxxx Txxxxxxx & Sxxxxxxx LLP may also rely on the opinion of Lxxx Xxxxxx, PC. (c) ~~Except as set forth or contemplated~~ At the Closing Time referred to in ~~the Base Prospectus~~Section 2 hereof, the ~~Prospectus~~ Company and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable OCC Regulations, the applicable FRB Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company or the Bank by the OCC or any ~~Permitted Free Writing Prospectus~~other regulatory authority other than those which the OCC, ~~subsequent~~ the FRB or any such other regulatory authority permit to be completed after the consummation of the Conversion. (d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in Registration Statement and the Prospectus), ~~or any material change in the short-term or long-term debt, of the Company, or~~ any Material Adverse ~~Effect or any development that would be reasonably likely to result in a Material Adverse Effect (~~Effect, whether or not arising in the ordinary course of business), and the Agent shall have received a certificate of the Chief Executive Officer of the Company and the Bank and the Chief Financial Officer of the Company and the Bank, dated as of the Closing Time, to the effect that (i) there has been no such Material Adverse Effect, (ii) there shall have been no material transaction entered into by the Company or the Bank from the latest date as of which the financial condition of the Company or the Bank, as set forth in the Registration Statement, the Prospectus and the General Disclosure Package other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither the Company nor the Bank shall have received from the FRB, the OCC or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which would materially and adversely affect the business, financial condition, results of operations or prospects of the Company or the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company and the Bank have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company or the Bank, threatened by the Commission, (vii) no order suspending the FRB’s approval of the Holding Company Application or the transactions contemplated thereby or the OCC’s approval of the Conversion Application or the transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company or the Bank, threatened by the FRB or the OCC and no person has sought to obtain regulatory or judicial review of the action of the OCC in approving the Plan in accordance with the OCC Regulations nor has any person sought to obtain regulatory or judicial review of the action of the OCC in approving the Conversion Application or the FRB in approving the Holding Company Application, and (viii) no order suspending the Subscription and Community Offerings or the Syndicated Offering or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the OCC. (e) At the Closing Time, the Agent shall have received a certificate of the Chief Executive Officer of the Company and the Bank and the Chief Financial Officer of the Company and the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement, the Prospectus and the General Disclosure Package; (ii) based on each of their knowledge, the Registration Statement, the Prospectus and the General Disclosure Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement, the Prospectus and the General Disclosure Package fairly present the financial condition and results of operations of the Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus. (f) As of the date hereof, the Agent shall have received from Wxxxxx LLP a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the Company and the Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the OCC Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Sxxxxxxx-Xxxxx Act; (ii) it is their opinion that the financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and Wipfli set forth in detail in such letter, nothing has come to their attention which causes them to believe that, except as set forth in such letter, (A) the unaudited amounts of net interest income and net income set forth under “Selected Financial and Other Data of Monroe Federal” or under “Recent Developments” in the Prospectus and the General Disclosure Package do not agree with the amounts set forth in unaudited financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, the Prospectus and the General Disclosure Package, (B) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the long- term or short-term debt of the Bank or any decrease in total assets, the allowance for credit losses, total deposits or equity of the Bank, in each case as compared with the amounts shown in the March 31, 2024 audited balance sheets or, (C) during the period from March 31, 2024 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for credit losses, income before income tax expense or net income of the Bank or increases in interest expense or the provision for credit losses, except in all instances for increases or decreases which the Registration Statement, the Prospectus and the General Disclosure Package disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information that are included in the Registration Statement, Prospectus and the General Disclosure Package and that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company and the Bank identified in such letter. (g) At the Closing Time, the Agent shall have received from Wipfli a letter dated as of the Closing Time, to the effect that it reaffirms the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time. (h) At the Closing Time, the Securities shall have been approved for quotation on the OTCQB Market operated by the OTC Markets Group. (i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal. (j) As of the date hereof and at the Closing Time, the Agent shall have received a certificate addressed to the Agent, and dated as of the respective dates of delivery, of the Chief Financial Officer of the Company and the Bank with respect to certain financial data contained in the General Disclosure Package and the Prospectus, providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Agent. (k) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent. (l) At any time prior to the Closing Time, (i) there shall not have occurred any material ~~loss by strike, fire, flood, earthquake, accident~~ adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other ~~calamity, whether~~ calamity or ~~not covered by insurance, incurred by the Company,~~ crisis the effect of which, in ~~any such case described above, in~~ the judgment of the Agent~~'s judgment~~, ~~makes~~ are so material and adverse as to make it ~~impractical~~ impracticable to market the Securities or ~~inadvisable~~ to ~~offer~~ enforce contracts, including subscriptions or ~~deliver~~ orders, for the Shares. (d) The Company shall have performed each of its obligations under Section 4(p). (e) The Company shall have performed each of its obligations under Section 4(q). (f) The Company shall have performed each of its obligations under Section 4(r). (g) FINRA shall not have raised any objection to the fairness and reasonableness sale of the ~~terms~~ Securities, and ~~arrangements under this Agreement.~~ (hii) ~~All filings with~~ trading generally on any national or regional securities exchange or system on which any class of securities of the Commission required by Rule 424 under the Securities Act to have been filed by the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company ~~shall have furnished to Agent and the Agent's counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common Shares~~ is listed or quoted shall not have been ~~suspended on the NASDAQ Capital Market. The Shares~~ suspended, and minimum or maximum prices for trading shall not have been ~~listed and authorized~~ fixed, or maximum ranges for ~~trading on~~ prices for securities have been required, by any of said exchanges or by order of the ~~NASDAQ Capital Market prior to the first Settlement Date~~Commission or any other governmental authority, and ~~satisfactory evidence of such actions~~ a banking moratorium shall not have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably requestdeclared by either Federal or Ohio authorities.

Appears in 1 contract

Samples: Agency Agreement (Monroe Federal Bancorp, Inc.)

Conditions of Agent’s Obligations. The obligations of the Agent hereunder are subject to (i) the accuracy ~~of, as~~ of the representations and warranties on the part of the Company on the date hereof, any applicable date referred to in Section 4(l) and as of each ~~Bringdown~~ Settlement Date~~, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein~~, (ii) the performance by the Company of its obligations hereunder and (iii) the following additional ~~conditions~~conditions precedent: (ai) If No stop order with respect to the ~~filing~~ effectiveness of any one of the ~~Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required~~ Registration Statement shall have been issued under the Securities Act or ~~the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement~~proceedings initiated under Section 8(d) or ~~such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8~~8(e) ~~or Rule 164(b)); the Registration Statement shall remain effective; no stop order suspending the effectiveness~~ of the ~~Registration Statement~~ Securities Act and no order directed at any document incorporated by reference therein and no order preventing or ~~any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor~~ suspending ~~or preventing~~ the use of the ~~Base Prospectus~~Prospectus has been issued by the Commission, and no suspension of the ~~Prospectus~~ qualification of the Shares for offering or sale in any ~~Permitted Free Writing Prospectus shall have been issued; no~~ jurisdiction, or to the knowledge of the Company or the Agent of the initiation or threatening of any proceedings for ~~the issuance~~ any of such ~~an order shall have been initiated or threatened~~purposes, has occurred; ~~and any request of the Commission for additional information~~ (~~to be included in~~ ii) the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's satisfaction. (b) The Agent shall not have advised the Company that the Registration Statement, the Base Prospectus, the Prospectus, or any amendment or supplement Statement and all amendments thereto, or ~~any Permitted Free Writing Prospectus~~modifications thereof, ~~contains~~ if any, shall not contain an untrue statement of a material fact ~~which, in the Agent's opinion, is material,~~ or ~~omits~~ omit to state a material fact ~~which, in the Agent's opinion, is material and is~~ required to be stated therein or is necessary to make the statements therein ~~(i) with respect to the Registration Statement,~~ not ~~misleading~~ misleading; and (iiiii) ~~with respect to the Base Prospectus,~~ the Prospectus and all amendments or ~~any Permitted Free Writing Prospectus~~supplements thereto, or modifications thereof, if any, shall 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 the light of the circumstances under which they ~~were~~ are made, not misleading. (cb) ~~Except as set forth~~ No material and unfavorable change, financial or contemplated in the Base Prospectus, the Prospectus and any Permitted Free Writing Prospectus, subsequent to the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock otherwise (other than as ~~a result of the exercise of any currently outstanding options or warrants that are disclosed~~ referred to in the Registration Statement and Prospectus), ~~or any material change~~ in the ~~short-term~~ business, condition, net worth or ~~long-term debt,~~ prospects of the ~~Company,~~ Company shall occur or ~~any Material Adverse Effect or any development that would be reasonably likely~~ become known and no transaction which is material and unfavorable to ~~result in a Material Adverse Effect (whether or not arising in~~ the ~~ordinary course of business), or any material loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred~~ Company shall have been entered into by the Company. (c) The Company shall furnish or cause to be furnished to the Agent, on every date specified in Section 4(m) hereof, an opinion of Company Counsel, addressed to the ~~effect~~ Agent, and dated as of ~~which~~such date, and in ~~any such case described above~~form satisfactory to the Agent and its counsel, substantially in the ~~Agent's judgment, makes it impractical or inadvisable to offer or deliver the Shares~~form of Exhibit A attached hereto. (d) ~~The Company~~ At the dates specified in Section 4(n) hereof, the Agent shall have ~~performed each~~ received from the Accountants letters dated the date of delivery thereof and addressed to the Agent in form and substance satisfactory to the Agent and its ~~obligations under Section 4(p)~~counsel. (e) The Company will deliver to the Agent a certificate, prior to the next business day following each Filing Date (each, a "Certificate Date"), of two of its executive officers to the effect that (i) the representations and warranties of the Company as set forth in this Agreement are true and correct as of the Certificate Date, (ii) the Company has performed or shall ~~have performed each~~ perform such of its obligations under this Agreement as are to be performed at or before each such Certificate Date, and (iii) the conditions set forth in paragraphs (a) and (b) of this Section ~~4(q)~~5 have been met. In addition, on each Certificate Date, the certificate shall also state that the Shares sold during the period to which the certificate relates have been duly and validly authorized by the Company and that all corporate action required to be taken for the authorization, issuance and sale of the Shares on that date has been validly and sufficiently taken. (f) The Company shall have performed each of its obligations under Section 4(r). (g) FINRA shall not have raised any objection to the fairness and reasonableness of the terms and arrangements under this Agreement. (h) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (ig) The Shares shall have been approved for listing on the NYSE, subject only to notice of issuance at or prior to the Settlement Date. (h) The Company shall have furnished to the Agent such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement and the ~~Agent's counsel such additional documents, certificates~~ Prospectus as of the Settlement Date as the Agent may reasonably request. (i) The NASD shall not have raised any objection with respect to the fairness and ~~evidence as they may have reasonably requested~~reasonableness of the terms and arrangements under this Agreement. (j) ~~Trading~~ No amendment or supplement to the Registration Statement or Prospectus, including documents deemed to be incorporated by reference therein, shall be filed to which the Agent objects in writing. (k) Between the ~~Common~~ time of execution of this Agreement and the time of sale of Shares through the Agent, as the case may be, there shall not have ~~been suspended on the NASDAQ Capital Market. The Shares~~ occurred any downgrading, nor shall any notice or announcement have been ~~listed and authorized for trading on~~ given or made of (i) any intended or potential downgrading or (ii) any review or possible change that does not indicate an improvement, in the ~~NASDAQ Capital Market prior to~~ rating accorded any securities of or guaranteed by the ~~first Settlement Date, and satisfactory evidence of such actions shall have been provided to~~ Company by any "nationally recognized statistical rating organization," as that term is defined in Rule 436(g)(2) under the Agent and its counsel, which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably requestSecurities Act.

Appears in 1 contract

Samples: Sales Agency Agreement (Annaly Mortgage Management Inc)

Conditions of Agent’s Obligations. The Company, the Mid-Tier Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and the issuance of the Exchange Shares and all obligations of the Agent hereunder are subject to ~~(i)~~ the accuracy ofof the representations and warranties of the Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, ~~each Bringdown Date, and each Time of Sale (in each case, as if made at such date), and compliance with, all representations, warranties and agreements of the Company contained herein, (ii)~~ to the performance by the ~~Company~~ Company, the Mid-Tier Company, the MHC and the Bank of ~~its~~ their obligations ~~hereunder~~ hereunder, and ~~(iii)~~ to the following ~~additional~~ further conditions: (a) If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no No stop order suspending the effectiveness of the Registration ~~Statement~~ Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission; no order suspending the Offerings or the authorization for final use of the Prospectus, including any ~~part thereof, any Rule 462(b)~~ prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or ~~any amendment thereof~~proceedings therefor initiated or, ~~nor suspending or preventing~~ to the ~~use~~ knowledge of the ~~Base Prospectus~~Company, threatened by the Commission, the ~~Prospectus~~ FRB or the NYSDFS; and no order suspending the sale of the Securities in any ~~Permitted Free Writing Prospectus~~ jurisdiction shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise) shall have been complied with to the Agent's satisfaction. (b) ~~The~~ At Closing Time, the Agent shall ~~not~~ have ~~advised~~ received: (i) The written opinion contained in Exhibit A hereof, dated as of Closing Time, of Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP, counsel for the ~~Company~~ Company, the Mid-Tier Company, the MHC and the Bank, in form and substance reasonably satisfactory to the Agent. (ii) The favorable opinion contained in Exhibit B hereof, dated as of Closing Time, of Xxxx Xxxxxx PC, counsel for the Agent, in form and substance reasonably satisfactory to the Agent. (iii) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP and Xxxx Xxxxxx, PC shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration ~~Statement~~Statement (except for financial statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the ~~Base Prospectus~~time it became effective, ~~the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains~~ contained an untrue statement of a material fact ~~which, in the Agent's opinion, is material,~~ or ~~omits~~ omitted to state a material fact ~~which, in the Agent's opinion, is material and is~~ required to be stated therein or is necessary to make the statements therein not misleading or that the Prospectus (~~i) with respect~~ except for financial statements and schedules and other financial, pro forma, appraisal or statistical data included therein, as to which counsel need make no statement), at the time the Registration ~~Statement~~Statement became effective or at the Closing Time, ~~not misleading and~~ or (iiif applicable) ~~with respect~~ that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted to state a material fact necessary in order to make the ~~Base Prospectus, the Prospectus or any Permitted Free Writing Prospectus~~statements therein, in the light of the circumstances under which they were made, not misleading. The opinions may be limited to matters governed by the laws of the United States, the State of Maryland, and the State of New York. In giving their opinions, Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP and Xxxx Xxxxxx, PC may rely as to matters of fact on certificates of officers and directors of the Company, the Mid-Tier Company, the MHC, the Bank and the Subsidiaries, as applicable, and certificates of public officials, and Xxxx Xxxxxx PC may also rely on the opinion of Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP with respect to matters set forth in paragraphs (iv), (x), (xiv), (xv) and (xvii) therein. (c) ~~Except as set forth or contemplated~~ At the Closing Time referred to in ~~the Base Prospectus~~Section 2 hereof, the ~~Prospectus~~ Company, the Mid-Tier Company, the MHC and the Bank shall have completed in all material respects with the conditions precedent to the Conversion in accordance with the Plan, the applicable New York Regulations, the FRB Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company, the Mid-Tier Company, the MHC or the Bank by the NYSDFS, the FRB or any ~~Permitted Free Writing Prospectus~~other regulatory authority, ~~subsequent~~ other than those which the NYSDFS, the FRB or such other regulatory authority permits to be completed after the Conversion. (d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given therein, the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change in the capital stock, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in Registration Statement and the Prospectus), ~~or any material change in the short-term or long-term debt, of the Company, or~~ any Material Adverse ~~Effect or any development that would be reasonably likely to result in a Material Adverse Effect (~~Effect, whether or not arising in the ordinary course of ~~business)~~business consistent with past practice, ~~or any~~ and the Agent shall have received a certificate of the Chairman and Chief Executive Officer of the Company, the Mid-Tier Company, the MHC and the Bank and the Chief Financial Officer of the Company, the Mid-Tier Company, the MHC and the Bank, dated as of Closing Time, to the effect that (i) there has been no such Material Adverse Effect, (ii) there has been no material ~~loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred~~ transaction entered into by the Company, the Mid-Tier Company, the MHC, or the Bank from the latest date as of which the financial condition of the Company, the Mid-Tier Company, the MHC or the Bank is set forth in the Registration Statement and the Prospectus, other than transactions disclosed or contemplated therein and transactions in the ordinary course of business substantially consistent with past practice, (iii) neither the Company, the Mid-Tier Company, the MHC, nor the Bank has received from the NYSDFS, the FRB or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or that materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the Mid-Tier Company, the MHC or the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the Mid-Tier Company, the MHC and the Bank has complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to their knowledge, threatened by the Commission, and (vii) no order suspending the FRB’s approval of the Conversion Application or the Holding Company Application or the NYSDFS’s approval of the New York Application, or the transactions contemplated thereby, has been issued and no proceedings for that purpose have been initiated or, to their knowledge, threatened by the FRB or the NYSDFS and, to their knowledge, no person has sought to obtain regulatory or judicial review of the action of the FRB in approving the Plan in accordance with the FRB Regulations, nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Conversion Application or the Holding Company Application or the NYSDFS in approving the New York Application. (e) At the Closing Time, the Agent shall have received a certificate of the Chairman and Chief Executive Officer of the Company, the Mid-Tier Company, the MHC and the Bank and the Chief Financial Officer of the Company, the Mid-Tier Company, the MHC and the Bank, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the Prospectus fairly present the financial condition and results of operations of the Mid-Tier Company and the Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus. (f) As of the date hereof, the Agent shall have received from BDO USA, LLP a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the Mid-Tier Company and the Bank within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC; (ii) it is their opinion that the consolidated financial statements included in the Registration Statement and covered by their opinion therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and BDO USA, LLP set forth in detail in such letter, nothing has come to their attention that causes them to believe that (A) the unaudited consolidated financial information as of March 31, 2021 and for the three months ended March 31, 2021 and 2020 of the Mid-Tier Company included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations, or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Recent Developments” in the Prospectus do not agree with the amounts set forth in unaudited consolidated financial information as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited consolidated financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated borrowings of the Mid-Tier Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or total stockholders’ equity of the Mid-Tier Company, in each case as compared with the amounts shown in the consolidated statements of financial condition included in the Registration Statement or, (D) during the period from December 31, 2020 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the Mid-Tier Company, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinion and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information that are included in the Registration Statement and Prospectus and that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Mid-Tier Company, identified in such letter. (g) At Closing Time, the Agent shall have received from BDO USA, LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to Closing Time. (h) The “lock-up” agreements, each substantially in the form of Exhibit C hereto, between the Agent and the persons set forth on Exhibit D hereto, relating to sales and certain other dispositions of shares of Common Stock, Mid-Tier Company Common Stock or certain other securities, shall be delivered to the Agent on or before the date hereof and shall be in full force and effect on the Closing Time. (i) At Closing Time, the Securities and the Exchange Shares shall have been approved for quotation on the Nasdaq Capital Market upon notice of issuance. (j) At Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its Appraisal. (k) At Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require to enable them to pass upon the issuance and sale of the Securities and the Exchange Shares as herein contemplated and related proceedings, or to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Exchange Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent. (l) At any time prior to Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis, including any natural disasters or other force majeure events or any epidemic, pandemic or disease outbreak or escalation (including COVID-19), the effect of which, in ~~any such case described above, in~~ the judgment of the Agent~~'s judgment~~, ~~makes~~ is so material and adverse as to make it ~~impractical~~ impracticable to market the Securities or ~~inadvisable~~ to ~~offer~~ enforce contracts, including subscriptions or ~~deliver~~ orders, for the Shares. (d) The Company shall have performed each of its obligations under Section 4(p). (e) The Company shall have performed each of its obligations under Section 4(q). (f) The Company shall have performed each of its obligations under Section 4(r). (g) FINRA shall not have raised any objection to the fairness and reasonableness sale of the ~~terms~~ Securities, and ~~arrangements under this Agreement.~~ (hii) ~~All filings with~~ trading generally on either the ~~Commission required by Rule 424 under~~ American Stock Exchange, the ~~Securities Act to have been filed by~~ New York Stock Exchange or the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424. (i) The Company shall have furnished to Agent and the Agent's counsel such additional documents, certificates and evidence as they may have reasonably requested. (j) Trading in the Common Shares Nasdaq Stock Market shall not have been ~~suspended on the NASDAQ Capital Market. The Shares~~ suspended, and minimum or maximum prices for trading shall not have been ~~listed and authorized~~ fixed, or maximum ranges for ~~trading on~~ prices for securities have been required, by any of said Exchanges or by order of the ~~NASDAQ Capital Market prior to the first Settlement Date~~Commission or any other governmental authority, and ~~satisfactory evidence of such actions~~ a banking moratorium shall not have been provided to the Agent and its counsel, which may include oral confirmation from a representative of the NASDAQ Capital Market. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and the Agent's counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably requestdeclared by either Federal or New York authorities.

Appears in 1 contract

Samples: Agency Agreement (NorthEast Community Bancorp, Inc./Md/)

Conditions of Agent’s Obligations. The obligations of the ~~Agent~~ Agents hereunder shall be subject, in its discretion, to the condition that all representations and warranties and other statements of the Company herein or in certificates of any officer of the Company delivered pursuant to the provisions hereof are ~~subject to (i) the accuracy of,~~ true and correct as of the time of the execution of this Agreement, the date ~~hereof,~~ of any executed Terms Agreement and as of each ~~Bringdown~~ Representation Date, Applicable Time and ~~each Time of Sale (in each case~~Settlement Date, ~~as if made at such date), and compliance with, all representations, warranties and agreements of~~ to the condition that the Company ~~contained herein, (ii) the performance by the Company~~ shall have performed all of its obligations hereunder theretofore to be performed, and ~~(iii)~~ the following additional conditions: (a) ~~If the filing of the Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company~~ The Prospectus Supplement shall have been filed ~~the Prospectus (or such amendment or supplement) or such Permitted Free Writing Prospectus~~ with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations on or prior to the date hereof and in accordance with Section 3(a) hereof, any other material required to be filed by the ~~manner and~~ Company pursuant to Rule 433(d) of the 1933 Act Regulations shall have been filed with the Commission within the applicable time ~~period so required (without reliance on~~ periods prescribed for such filings by Rule ~~424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective~~433; no stop order suspending the effectiveness of the Registration Statement or any part ~~thereof, any Rule 462(b) Registration Statement,~~ thereof shall have been issued and no proceeding for that purpose shall have been initiated or ~~any amendment thereof, nor~~ threatened by the Commission; no stop order suspending or preventing the use of the ~~Base Prospectus, the~~ Prospectus or any ~~Permitted~~ Issuer Free Writing Prospectus shall have been ~~issued; no proceedings for the issuance of such an order shall have been~~ initiated or ~~threatened~~threatened by the Commission; and ~~any request~~ all requests for additional information on the part of the Commission ~~for additional information (to be included in the Registration Statement, the Base Prospectus, the Prospectus, any Permitted Free Writing Prospectus or otherwise)~~ shall have been complied with to the ~~Agent's satisfaction~~reasonable satisfaction of the Agents. (b) ~~The Agent~~ On every date specified in Section 3(k) hereof, Sidley Austin llp, counsel for the Agents, shall ~~not~~ have ~~advised~~ furnished to the ~~Company that~~ Agents such written opinion or opinions, dated as of such date, with respect to such matters as the Agents may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters. In giving their opinion, Sidley Austin llp may rely as to matters involving the laws of the State of Maryland upon the opinion of Dentons US LLP or such other counsel reasonably satisfactory to the Agents. (i) On every date specified in Section 3(k) hereof, Dentons US LLP, counsel for the Company, shall have furnished to the Agents written opinions, dated as of such date, substantially in the forms attached hereto as Exhibits A-1 and A-2, respectively, and to such further effect as counsel to the Agents may reasonably request; and (ii) on every date specified in Section 3(l) hereof, Dentons US LLP, counsel for the Company, shall have furnished to the Agents a letter, dated as of such date, substantially in the form attached hereto as Exhibits A-3, and to such further effect as counsel to the Agents may reasonably request. (d) At the dates specified in Section 3(l) hereof, Ernst & Young LLP, and any other independent accountants who have certified the financial statements included or incorporated by reference in the Registration Statement, the ~~Base Prospectus~~General Disclosure Package and the Prospectus shall have furnished to the Agents a letter or letters dated as of the date of delivery thereof and addressed to the Agents in form and substance reasonably satisfactory to the Agents and their counsel, containing statements and information of the ~~Prospectus, or any amendment or supplement thereto, or any Permitted Free Writing Prospectus, contains an untrue statement of fact which,~~ type ordinarily included in ~~the Agent's opinion, is material, or omits~~ accountants’ “comfort letters” to ~~state a fact which, in the Agent's opinion, is material and is required to be stated therein or is necessary to make the statements therein (i)~~ underwriters with respect to the financial statements included or incorporated by reference in the Registration Statement, ~~not misleading~~ the General Disclosure Package and ~~(ii) with respect to~~ the ~~Base~~ Prospectus~~, the Prospectus or any Permitted Free Writing Prospectus, in light of the circumstances under which they were made, not misleading~~. (ce) ~~Except as set forth or contemplated~~ On each date specified in ~~the Base Prospectus~~Section 3(j) hereof, the ~~Prospectus~~ Agents shall have received a certificate of the President and Chief Executive Officer and the Senior Vice President and Chief Financial Officer of the Company, dated as of the date thereof, to the effect that (A) the Registration Statement has been declared effective under the 1933 Act and no stop order suspending the effectiveness of the Registration Statement or no order preventing or suspending the use of any ~~Permitted~~ Issuer Free Writing ~~Prospectus~~Prospectus or the Prospectus has been issued, ~~subsequent~~ and no proceedings for such purpose or pursuant to Section 8A of the 1933 Act have been taken or are, to his or her knowledge, contemplated or threatened by the Commission; (B) there has been no Material Adverse Effect, or any development or occurrence that would reasonably be expected to have a Material Adverse Effect, since the respective dates as of which information is given ~~therein~~in the Registration Statement, the General Disclosure Package and the Prospectus as each is then amended or supplemented, (C) the representations and warranties of the Company ~~shall not have incurred any material liabilities or obligations, direct or contingent, or~~ contained herein are true and correct as of such date and (D) the Company has complied with all of the agreements entered into in connection with the transactions contemplated herein and in any ~~material transactions,~~ Terms Agreement and satisfied all conditions on its part to be performed or ~~declared~~ satisfied. (f) Since the date of the latest audited financial statements then included or ~~paid any dividends or made any distribution of any kind with respect to its capital stock and there shall not have been any change~~ incorporated by reference in the ~~capital stock~~Registration Statement, ~~or any issuance of options, warrants, convertible securities or other rights to purchase~~ the ~~capital stock (other than as a result of the exercise of any currently outstanding options or warrants that are disclosed in~~ General Disclosure Package and the Prospectus), ~~or any material change in the short-term or long-term debt, of the Company, or any~~ no Material Adverse Effect or any development that would be reasonably likely to result in a Material Adverse Effect (whether or not arising in the ordinary course of business), or any material loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred by the Company, the effect of which, in any such case described above, in the Agent's judgment, makes it impractical or inadvisable to offer or deliver the Sharesshall have occurred. (dg) The Company shall have ~~performed each~~ complied with the provisions of ~~its obligations under~~ Section ~~4(p). (e~~3(c) The Company shall have performed each of its obligations under Section 4(q). (f) The Company shall have performed each of its obligations under Section 4(r). (g) FINRA shall not have raised any objection hereof with respect to the ~~fairness and reasonableness~~ timely furnishing of ~~the terms and arrangements under this Agreement~~prospectuses. (h) On such dates as reasonably requested by the Agents, the Company shall have conducted due diligence sessions, in form and substance reasonably satisfactory to the Agents. (i) All filings with the Commission required by Rule 424 ~~under~~ of the ~~Securities~~ 1933 Act Regulations to have been filed by ~~the~~ each Applicable Time or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule ~~424.~~ 424 (~~i) The Company shall have furnished to Agent and the Agent's counsel such additional documents, certificates and evidence as they may have reasonably requested~~without reliance on Rule 424(b)(8)). (j) ~~Trading in the Common Shares shall not have been suspended on the NASDAQ Capital Market.~~ The Shares shall have been ~~listed and authorized~~ approved for ~~trading~~ listing on the ~~NASDAQ Capital Market prior to~~ NYSE as of the ~~first Settlement Date, and satisfactory evidence~~ date of ~~such actions~~ this Agreement. (k) Counsel for the Agents shall have been ~~provided~~ furnished with such documents and opinions as they may reasonably require in order to evidence the ~~Agent and its counsel, which may include oral confirmation from a representative~~ accuracy of any of the ~~NASDAQ Capital Market. All such opinions~~representations or warranties, ~~certificates~~or the fulfillment of any of the conditions, ~~letters~~ contained herein or in any applicable Terms Agreement; and ~~other documents will be~~ all proceedings taken by the Company in ~~compliance~~ connection with the ~~provisions hereof only if they are~~ issuance and sale of the Shares as contemplated herein or in any applicable Terms Agreement and in connection with the other transactions contemplated by this Agreement or any such Terms Agreement shall be reasonably satisfactory in form and substance to ~~Agent~~ the Agents and counsel for the ~~Agent's counsel. The Company will furnish Agent with such conformed copies of such opinions, certificates, letters and other documents as Agent shall reasonably request~~Agents.

Appears in 1 contract

Samples: Equity Offering Sales Agreement (One Liberty Properties Inc)

Common use of Conditions of Agent’s Obligations Clause in Contracts