Conditions of Agent’s Obligations. The obligations of the Agent hereunder with respect to any Shares that the Company has instructed the Agent to sell as agent and the obligations of the Agent hereunder and under any Terms Agreement with respect to any Shares that the Agent has agreed to purchase or has the option to purchase as principal pursuant to such Terms Agreement are subject to (i) the accuracy of the representations and warranties of the Company and the Operating Partnership contained herein, (a) as of the date of this Agreement, (b) as of the date such instructions are given to the Agent or the date of such Terms Agreement, as the case may be, (c) as of each subsequent Registration Statement Amendment Date and Company Periodic Report Date and (d) as of each Applicable Time and Delivery Date with respect to such Shares, (ii) the accuracy of the statements of the Company and the Operating Partnership made in any certificates pursuant to the provisions hereof, and (iii) the performance by the Company and the Operating Partnership of their respective covenants and other obligations hereunder and, if applicable, under such Terms Agreement, and to each of the following additional terms and conditions: (a) The Company shall have filed the Prospectus and, in the case of any offering or sale of Shares pursuant to a Terms Agreement, the applicable preliminary prospectus with the Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act (without giving effect to Rule 424(b)(8)). The Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act in connection with the issuance and sale of the Shares, in each case used or referred to after the date hereof, within the applicable time periods prescribed for such filings under such Rule 433. No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or preventing or suspending the use of any preliminary prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding or examination for such purpose shall have been instituted or threatened by the Commission; any request of the Commission for inclusion of additional information in the Registration Statement, any preliminary prospectus or the Prospectus or otherwise shall have been complied with; the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; the Company shall not have received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to the use of the automatic shelf registration statement form; and FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements; (b) The Agent shall not have discovered and disclosed to the Company that the Registration Statement, the Prospectus or the Disclosure Package, or any amendment or supplement thereto relating to the Shares, contains an untrue statement of a fact which, in the judgment of Sidley Austin LLP, counsel for the Agents, is material or omits to state a fact which, in the judgment of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading. (c) All corporate and partnership proceedings and other legal matters incident to the authorization, form and validity of the Sales Agreements, any Terms Agreements, the Shares, the Registration Statement, any preliminary prospectus, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement, any of the Other Sales Agreements and any Terms Agreements, and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Agents, and the Company shall have furnished to such counsel all documents and information that they may reasonably require for the purposes of enabling them to pass upon such matters, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements herein contained. (d) The Agent shall have received (i) the opinion of Xxxxxxx Xxxxx LLP, Maryland counsel for the Company and the Operating Partnership, addressed to such Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, the form of which is attached hereto as Exhibit A and (ii) the opinion or opinions and letter or letters of Xxxxxx & Xxxxxxx LLP, special corporate and tax counsel for the Company, addressed to the Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, the form of which is attached hereto as Exhibit B. (e) The Agent shall have received from Sidley Austin LLP, counsel for the Agent, such letter, addressed to the Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, with respect to the Registration Statement, the Prospectus and the Disclosure Package and other related matters as the Agent may reasonably request, and the Company shall have furnished to such counsel such documents and information as they may reasonably request to enable them to pass upon such matters. (f) At the dates specified in Section 3(a)(xiv) and 3(a)(xxvii) hereof, the Agent shall have received from Deloitte & Touche LLP, independent public accountants for the Company and the Operating Partnership, or other independent public accountants of nationally recognized standing for the Company and the Operating Partnership, a letter, in form and substance satisfactory to the Agent, addressed to the Agent and dated the date of delivery thereof (i) confirming that they are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted thereunder by the Commission and the Public Company Accounting Oversight Board (United States), and (ii) stating, as of the date of delivery thereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus and the Disclosure Package and any amendments or supplements thereto, as of a date not more than three days prior to the date of delivery thereof), the conclusions and findings of such firm with respect to the financial statements of the Company, the Operating Partnership and any other properties, businesses or entities (including any pro forma financial statements) and certain financial information regarding the Company, the Operating Partnership and, if applicable, such other properties, businesses or entities contained or incorporated by reference in the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus (other than any electronic road show) and the Prospectus and any amendments or supplements thereto, as customarily covered by accountants’ “comfort letters” in connection with public offerings. If the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus contains or incorporates by reference the financial statements of any properties, businesses or entities whose independent public accountants are not the same as the Company’s independent public accountants, then, at the dates specified in Section 3(a)(xiv) and 3(a)(xxvii) hereof, the Agent shall have received from an independent public accountant of nationally recognized standing, a letter, in form and substance satisfactory to the Agent, addressed to the Agent and dated the date of delivery thereof, as to the matters set forth in the preceding sentence but modified to relate solely to such financial statements and any other financial information contained or incorporated by reference in the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus and any amendments or supplements thereto relating to such properties, businesses or entities, as the case may be. (g) Since the commencement of the offering of the Shares under this Agreement or, if later, since the most recent Registration Statement Amendment Date or Company Periodic Report Date (whichever is later) and, in the case of the sale of Shares pursuant to a Terms Agreement to which the Agent is a party, since the date of such Terms Agreement: (A) in the judgment of the Agent there shall not have occurred any Material Adverse Change; (B) there shall not have been any change, increase or decrease specified in the letter or letters referred to in subsection (f) of this Section 5 or Section 3(a)(xiv) which is, in the sole judgment of the Agent, so material and adverse as to make it impractical or inadvisable to proceed with the offering, sale or delivery of the Shares on the terms and in the manner contemplated in the Registration Statement, the Disclosure Package and the Prospectus; and (C) (i) no downgrading shall have occurred in the rating accorded to any securities issued or guaranteed by the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to its rating of, any securities of or guaranteed by the Company or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading). (i) The Company shall have furnished to the Agent a certificate of an officer in a form satisfactory to the Agent stating the minimum gross sales price per share for sale of Shares pursuant to this Agreement and the other information specified in clauses (x) and (y) of Section 2(b) and, in the event of any change in such information, shall promptly provide the Agent with a new certificate of an officer setting forth such changed information (and the receipt of such certificate and any such new certificate shall have been confirmed by the Agent (which confirmation may be by facsimile transmission or electronic mail), and (ii) on each date specified in Section 3(a)(xii) and 3(a)(xxvii), the Company shall have furnished to the Agent a certificate to the effect set forth in Exhibit C attached hereto (and including any changes proposed by the Company reasonably satisfactory to the Agent and its counsel and such additional matters as the Agent may reasonably request) of the Chairman of the Board, Chief Executive Officer, President or Chief Operating Officer of the Company and the Chief Financial Officer or Chief Accounting Officer of the Company (1) on behalf of the Company itself and (2) in its capacity as general partner of the Operating Partnership, on behalf of the Operating Partnership. (i) Subsequent to the later of (i) the execution and delivery of this Agreement or (ii) the most recent Company Periodic Report Date or Registration Statement Amendment Date (whichever is later) and, in connection with any Terms Agreement, subsequent to the date of such Terms Agreement, there shall not have occurred any of the following: (i) trading or quotation in any securities issued or guaranteed by the Company or the Operating Partnership shall have been suspended or limited by the Commission or by the Exchange; (ii) trading in securities generally on the Exchange shall have been suspended or limited, or minimum or maximum prices shall have been generally established on any of such stock exchange by the Commission or FINRA; (iii) a general banking moratorium shall have been declared by federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States has occurred; or (iv) there shall have occurred any outbreak or escalation of national or international hostilities or any crisis or calamity, or any change in the United States or international financial markets, or any substantial change or development involving a prospective substantial change in United States’ or international political, financial or economic conditions, as in the judgment of the Agent is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares in the manner and on the terms described in the Prospectus and the Disclosure Package or to enforce contracts for the sale of securities. (j) The Exchange shall have approved the Shares for listing, subject only to official notice of issuance, and satisfactory evidence of such action shall have been provided to the Agent. (k) On or prior to each Delivery Date, the Company shall have furnished to the Agent such further certificates and documents as the Agent may reasonably request. (l) In the case of any Terms Agreement, any additional conditions specified therein to the obligations of the Agent thereunder shall have been satisfied as of the dates required. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Agent.
Appears in 10 contracts
Samples: Sales Agreement (Kilroy Realty, L.P.), Sales Agreement (Kilroy Realty, L.P.), Sales Agreement (Kilroy Realty, L.P.)
Conditions of Agent’s Obligations. The obligations of the Agent hereunder with respect to any Shares that the Company has instructed the Agent to sell as agent and the obligations of the Agent hereunder and under any Terms Agreement with respect to any Shares that the Agent has agreed to purchase or has the option to purchase as principal pursuant to such Terms Agreement are subject to (i) the accuracy accuracy, when made and on the date of this Agreement, each Registration Statement Amendment Date, each Company Periodic Report Date, each Applicable Time and each Delivery Date, of the representations and warranties of the Company and the Operating Partnership contained herein, (a) as of the date of this Agreement, (b) as of the date such instructions are given to the Agent or the date of such Terms Agreement, as the case may be, (c) as of each subsequent Registration Statement Amendment Date and Company Periodic Report Date and (d) as of each Applicable Time and Delivery Date with respect to such Shares, (ii) the accuracy of the statements of the Company and the Operating Partnership made in any certificates pursuant to the provisions hereof, and (iii) the performance by each of the Company and the Operating Partnership of their respective covenants and other obligations hereunder and, if applicable, under such Terms Agreementhereunder, and to each of the following additional terms and conditions:
(a) The Prospectus Supplement shall have been filed with the Commission pursuant to Rule 424(b) on or prior to the date hereof and the Company shall have filed complied with all other requirements applicable to the Prospectus and, in the case of or any offering or sale of Shares pursuant to a Terms Agreement, the applicable preliminary prospectus with the Commission (including the information required by Rule 430B supplement thereto under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act (without giving effect to Rule 424(b)(8)). The Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act in connection with the issuance and sale of the Shares, in each case used or referred to after the date hereof, within the applicable time periods prescribed for such filings under such Rule 433. No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or preventing or suspending the use of any preliminary prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding or examination for such purpose shall have been instituted initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement, any preliminary prospectus Statement or the Prospectus or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; the Company shall not have received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to the use of the automatic shelf registration statement form; and FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements;.
(b) The Agent shall not have discovered and disclosed to the Company that the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto relating to the Sharesthereto, contains an untrue statement of a fact which, in the judgment opinion of Sidley Austin Xxxxxxxx Chance US LLP, counsel for the AgentsAgent, is material or omits to state a fact which, in the judgment opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate and partnership proceedings and other legal matters incident to the authorization, form and validity of the Sales Agreements, any Terms Agreementsthis Agreement, the SharesStock, the Registration Statement, any preliminary prospectus, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement, any of the Other Sales Agreements and any Terms Agreements, Agreement and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the AgentsAgent, and the Company shall have furnished to such counsel all documents and information that they may reasonably require for the purposes of enabling request to enable them to pass upon such matters, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements herein contained.
(d) The Agent Xxxxxx, Xxxxx & Xxxxxxx LLP shall have received (i) furnished to the opinion of Xxxxxxx Xxxxx LLPAgent its written opinion, Maryland as counsel for the Company and the Operating Partnership, addressed to such Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, the form of which is attached hereto as Exhibit A and (ii) the opinion or opinions and letter or letters of Xxxxxx & Xxxxxxx LLP, special corporate and tax counsel for the Company, addressed to the Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii3(a)(xiv) hereof, in form and substance satisfactory to the Agent, substantially in the form of which is attached hereto as Exhibit B.A-1.
(e) The Agent Xxxx Xxxxx LLP shall have received from Sidley Austin LLPfurnished to the Agent its written opinion, as special Maryland law counsel for to the Agent, such letterCompany, addressed to the Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii3(a)(xiv) hereof, with respect in form and substance satisfactory to the Registration StatementAgent, substantially in the Prospectus and the Disclosure Package and other related matters form attached hereto as the Agent may reasonably requestExhibit A-2.
(f) Xxxxx X. Xxxxxx, and the Company Esq. shall have furnished to such counsel such documents the Agent a written opinion, as General Counsel to the Company, addressed to the Agent and information delivered and dated on each date specified in Section 3(a)(xiv) hereof, in form and substance satisfactory to the Agent, substantially in the form attached hereto as they may reasonably request to enable them to pass upon such mattersExhibit A-3.
(fg) The Agent shall have received from Xxxxxxxx Chance US LLP, counsel for the Agent, such opinion or opinions, and delivered and dated on each date specified in Section 3(a)(xiv) hereof, as to the matters referred to in clauses 5 and 10 of Exhibit A-1 and matters referred to in clauses 4 (with respect to “Description of Shares” only) and 5 of Exhibit A-2 and in addition, Xxxxxxxx Chance US LLP shall make statements similar to those contained in the second and third paragraphs following clause 12 of Exhibit A-1 hereto (with respect to Federal, New York, Delaware and Maryland laws only) and shall be entitled to rely on those persons described in the third paragraph following clause 12 of Exhibit A-1 and the first paragraph following clause 6 of Exhibit A-2 described therein.
(h) At the dates specified in Section 3(a)(xiv) and 3(a)(xxvii3(a)(xv) hereof, the Agent shall have received from Deloitte & Touche LLP, independent public accountants for the Company and the Operating Partnership, or other independent public accountants of nationally recognized standing for the Company and the Operating Partnership, PricewaterhouseCoopers LLP a letter, in form and substance satisfactory to the Agent, addressed to the Agent and dated the date of delivery thereof (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable rules and regulations adopted thereunder by requirements relating to the Commission and qualification of accountants under Rule 2-01 of Regulation S-X of the Public Company Accounting Oversight Board (United States)Commission, and (ii) stating, as of the date of the date of delivery thereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus and the Pricing Disclosure Package and any amendments or supplements theretoPackage, as of a date not more than three days prior to the date of delivery thereof), the conclusions and findings of such firm with respect to the financial statements of the Company, the Operating Partnership information and any other properties, businesses or entities (including any pro forma financial statements) and certain financial information regarding the Company, the Operating Partnership and, if applicable, such other properties, businesses or entities contained or incorporated by reference in the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus (other than any electronic road show) and the Prospectus and any amendments or supplements thereto, as customarily matters ordinarily covered by accountants’ “comfort letters” in connection with registered public offerings. If the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus contains or incorporates by reference the financial statements of any properties, businesses or entities whose independent public accountants are not the same as the Company’s independent public accountants, then, at the dates specified in Section 3(a)(xiv) and 3(a)(xxvii) hereof, the Agent shall have received from an independent public accountant of nationally recognized standing, a letter, in form and substance satisfactory to the Agent, addressed to the Agent and dated the date of delivery thereof, as to the matters set forth in the preceding sentence but modified to relate solely to such financial statements and any other financial information contained or incorporated by reference in the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus and any amendments or supplements thereto relating to such properties, businesses or entities, as the case may be.
(ga) Since the Upon commencement of the offering of the Shares Stock under this Agreement or, if later, since the most recent Registration Statement Amendment Date or Company Periodic Report Date (whichever is later) and, in the case of the sale of Shares pursuant to a Terms Agreement to which the Agent is a party, since the date of such Terms Agreement:
(A) in the judgment of the Agent there shall not have occurred any Material Adverse Change;
(B) there shall not have been any change, increase or decrease specified in the letter or letters referred to in subsection (f) of this Section 5 or Section 3(a)(xiv) which is, in the sole judgment of the Agent, so material and adverse as to make it impractical or inadvisable to proceed with the offering, sale or delivery of the Shares on the terms and in the manner contemplated in the Registration Statement, the Disclosure Package and the Prospectus; and
(C) (i) no downgrading shall have occurred in the rating accorded to any securities issued or guaranteed by the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to its rating of, any securities of or guaranteed by the Company or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading).
(i) The Company shall have furnished to the Agent a certificate of an officer in a form satisfactory to the Agent stating the minimum gross sales price per share for the sale of Shares such Stock pursuant to this Agreement and the other information specified in clauses (x) maximum number of shares of Stock that may be issued and (y) 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 Section 2(b) andTrustees or a duly authorized committee thereof or, in the event connection with any amendment, revision or modification of any change in such informationminimum price or maximum amount, shall promptly provide the Agent with a new certificate of an officer setting forth such changed information (and the receipt of such certificate and any such new certificate shall have been confirmed by the Agent (which confirmation may be by facsimile transmission or electronic mail)with respect thereto, and (iib) on each date specified in Section 3(a)(xii) and 3(a)(xxvii3(a)(xiii), the Company shall have furnished to the Agent a certificate to the effect set forth in Exhibit C attached hereto (and including any changes proposed by the Company reasonably satisfactory to the Agent certificate, dated such date, of its Chief Executive Officer and its counsel and Chief Financial Officer as to such additional matters as the Agent may reasonably request, including, without limitation, a statement that:
(A) All the representations and warranties of the Chairman Company in this Agreement shall be true and correct, on and as of the Boardapplicable date specified in Section 3(a)(xiii). The Company has complied with all agreements and all conditions on its part to be performed or satisfied hereunder at or prior to such applicable date;
(B) The Registration Statement has become effective under the Securities Act; the Prospectus and any Issuer Free Writing Prospectus shall have been filed with the Commission pursuant to Rule 424(b) (in the case of the Issuer Free Writing Prospectus, Chief Executive Officerto the extent required under Rule 433) within the applicable time period prescribed for such filing by such Rule and prior to the time the Prospectus was distributed to the Agent; no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or the Pricing Disclosure Package or any amendment or supplement thereto has been issued, President and no proceedings for that purpose have been instituted or Chief Operating Officer are pending before, or threatened or, to the Company’s knowledge, after due inquiry, are contemplated by the Commission; no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto and no order directed at any document incorporated by reference in the Registration Statement, the Prospectus or the Pricing Disclosure Package or any amendment or supplement thereto has been issued, and no proceedings for that purpose have been instituted or are pending before, or threatened or, to the best of the Company’s knowledge, after due inquiry, are contemplated by the state securities authority of any jurisdiction; and
(C) Subsequent to the respective dates as of which information is given in the Registration Statement, the Prospectus and the Pricing Disclosure Package, other than as set forth in or contemplated by the Registration Statement, the Prospectus and the Pricing Disclosure Package (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement) and prior to the applicable date specified in Section 3(a)(xiii), except for changes of a general nature applicable to all real estate investment trusts investing in commercial office properties, (i) there has not occurred any material adverse change or, to the best knowledge of such persons, any development involving a prospective material adverse change in the condition, financial or otherwise, or the results of operations, business, prospects, management or operations of the Company and the Chief Financial Officer Subsidiaries, taken as a whole, (ii) there has been no casualty loss or Chief Accounting Officer condemnation or other adverse event with respect to any of the properties which would be material to the Company and the Subsidiaries, taken as a whole, (iii) there has not been any material adverse change or any development involving a prospective material adverse change in the capitalization, long-term or short-term debt or in the shares of beneficial interest or equity of the Company (1) on behalf or any of the Subsidiaries, (iv) except as described in the Prospectus or the Pricing Disclosure Package, neither the Company itself nor any of the Subsidiaries has incurred any material liability or obligation, direct or contingent, which would be material, nor have they entered into any transactions, other than pursuant to this Agreement and the transactions referred to herein or as contemplated in the Prospectus and the Pricing Disclosure Package, which would be material, to the Company and its Subsidiaries taken as a whole, and (2v) except for regular quarterly distributions on the Stock and other securities issued by the Company, the Company has not paid or declared and will not pay or declare any dividends or other distributions of any kind on any class of its shares of beneficial interest except in its capacity as general partner the ordinary course of the Operating Partnership, on behalf of the Operating Partnershipbusiness consistent with such practice.
(ij) Subsequent to the later of (i) the execution and delivery of this Agreement or (ii) the most recent Company Periodic Report Date or Registration Statement Amendment Date (whichever is later) and, in connection with any Terms Agreement, subsequent to the date of such Terms Agreement, there shall not have occurred any of the following: (i) trading or quotation in any securities issued or guaranteed by the Company or the Operating Partnership shall have been suspended or limited by the Commission or by the Exchange; (ii) trading in securities generally on the Exchange shall have been suspended or limited, or minimum or maximum prices shall have been generally established on any of such stock exchange by the Commission or FINRA; (iii) a general banking moratorium shall have been declared by federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States has occurred; or (iv) there shall have occurred any outbreak or escalation of national or international hostilities or any crisis or calamitychange, or any change in the United States development or international financial markets, or any substantial change or development event involving a prospective substantial change change, in United States’ or international political, the condition (financial or economic conditionsother), business, properties or results of operations of the Company and its Subsidiaries taken as one enterprise which, in the judgment of the Agent Agent, is material and adverse and makes it impracticable impractical or inadvisable to proceed with the offeringoffering or the sale of the Stock on the terms and in the manner contemplated in the Prospectus; (ii) any downgrading in the rating of any debt securities or preferred stock of the Company and the Operating Partnership by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities or preferred stock of the Company and the Operating Partnership (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement that the Company or the Operating Partnership has been placed on negative outlook; (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the judgment of the Agent, be likely to prejudice materially the success of the proposed issue, sale or delivery distribution of the Shares Stock, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the NYSE, or any setting of minimum prices for trading on such exchange; (v) any banking moratorium declared by U.S. Federal or New York authorities; (vi) any major disruption of settlements of securities or clearance services in the United States; (vii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of the Agent, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with the offering or the sale of the Stock on the terms and in the manner and on the terms described contemplated in the Prospectus Prospectus; or (viii) any suspension of trading of any securities of the Company and the Disclosure Package Operating Partnership on any exchange or to enforce contracts for in the sale of securitiesover-the-counter market.
(jk) The Exchange Stock shall have been approved for listing on the Shares for listingNYSE, subject only to official notice of issuance, and satisfactory evidence of such action shall have been provided to the Agent.
(kl) On or prior to each Delivery Date, the Company shall have furnished to the Agent such further certificates and documents as the Agent may reasonably request.
(l) In the case of any Terms Agreement, any additional conditions specified therein to the obligations of the Agent thereunder shall have been satisfied as of the dates required. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Agent.
Appears in 4 contracts
Samples: Sales Agreement (Corporate Office Properties Trust), Sales Agreement (Corporate Office Properties Trust), Sales Agreement (Corporate Office Properties Trust)
Conditions of Agent’s Obligations. The Mutual Holding Company, Company, Bank and Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder with respect to any Shares that the Company has instructed the Agent to sell as agent and the obligations of the Agent hereunder and under any Terms Agreement with respect to any Shares that the Agent has agreed to purchase or has the option to purchase as principal pursuant to such Terms Agreement are subject to (i) the accuracy of the representations and warranties of the Company and the Operating Partnership Bank herein contained herein, (a) as of the date of this Agreementhereof and the Closing Time, (b) as of the date such instructions are given to the Agent or the date of such Terms Agreement, as the case may be, (c) as of each subsequent Registration Statement Amendment Date and Company Periodic Report Date and (d) as of each Applicable Time and Delivery Date with respect to such Shares, (ii) the accuracy of the statements of officers and directors of the Company and the Operating Partnership Bank made in any certificates pursuant to the provisions hereof, and (iii) to the performance by the Company and the Operating Partnership Bank of their respective covenants and other obligations hereunder and, if applicable, under such Terms Agreementhereunder, and to each of the following additional terms and further conditions:
(a) The Company shall have filed the Prospectus and, in the case of any offering or sale of Shares pursuant to a Terms Agreement, the applicable preliminary prospectus with the Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act (without giving effect to Rule 424(b)(8)). The Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act in connection with the issuance and sale of the Shares, in each case used or referred to after the date hereof, within the applicable time periods prescribed for such filings under such Rule 433. No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or preventing or suspending the use of any preliminary prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding or examination for such purpose shall have been instituted or threatened by the Commission; any request of the Commission for inclusion of additional information in the Registration Statement, any preliminary prospectus or the Prospectus or otherwise shall have been complied with; the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement or including any post-effective amendment thereto; , shall have been issued under the Securities Act or proceedings therefor initiated or, to the Knowledge of the Mutual Holding Company, Company or Bank, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall not have received from been issued or proceedings therefor initiated or, to the Commission any notice pursuant to Rule 401(g)(2) Knowledge of the Mutual Holding Company, Company or Bank, threatened by the Commission, the OCFR or the FRB and no order suspending the sale of the Securities Act objecting to the use of the automatic shelf registration statement form; and FINRA in any jurisdiction shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements;been issued.
(b) The At the Closing Time, the Agent shall not have discovered received:
(1) The favorable opinion, dated as of the Closing Time, of Xxxx Xxxxxx, PC, counsel for the Mutual Holding Company, Company and disclosed Bank, in form and substance satisfactory to counsel for the Company Agent, as attached hereto as Exhibit A.
(2) The favorable opinion, dated as of the Closing Time, of Xxxxxx & Bird 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 Xxxxxx & Bird LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration StatementStatement (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 Prospectus or the Disclosure Packagetime it became effective, or any amendment or supplement thereto relating to the Shares, contains contained an untrue statement of a material fact which, in the judgment of Sidley Austin LLP, counsel for the Agents, is material or omits omitted to state a material fact which, in the judgment of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading or that the Prospectus (except for financial statements 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 became effective, as of the date of the Prospectus or at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, Xxxx Xxxxxx, PC and Xxxxxx & Bird LLP may rely as to matters of fact on certificates of officers and directors of the Mutual Holding Company, Company and Bank and certificates of public officials. Xxxxxx & Bird LLP may also rely on the opinion of Xxxx Xxxxxx, PC.
(c) All corporate At the Closing Time referred to in SECTION 2 hereof, the Company and partnership proceedings and other legal matters incident the Bank shall have completed in all material respects the conditions precedent to the authorizationConversion in accordance with the Plan, form the applicable OCFR Regulations, the applicable FRB Regulations and validity all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Mutual Holding Company, Company or Bank by the OCFR or any other regulatory authority other than those which the OCFR, the FRB or any such other regulatory authority permit to be completed after the consummation of the Sales AgreementsConversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the Prospectus, any Terms AgreementsMaterial Adverse Effect, whether or not arising in the Sharesordinary course of business, and the Agent shall have received a certificate of the Chief Executive Officers of the Mutual Holding Company, Company and Bank and the Chief Financial Officer of the Mutual Holding Company, Company and 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 Mutual Holding Company, Company and Bank from the latest date as of which the financial condition of the Mutual Holding Company, Company and 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 Mutual Holding Company, Company nor the Bank shall have received from the FRB, the OCFR or the FDIC any preliminary prospectusorder 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 Mutual Holding Company, Company or 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 Mutual Holding Company, Company and 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 Mutual Holding Company, the Company, or the Bank, threatened by the Commission, (vii) no order suspending the FRB’s approval of the Holding Company Conversion Application or the OCFR’s approval of the Conversion Application or the transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to the Knowledge of the Mutual Holding Company, the Company, or the Bank, threatened by the FRB or the OCFR and no person has sought to obtain regulatory or judicial review of the action of the OCFR in approving the Plan in accordance with the OCFR Regulations nor has any person sought to obtain regulatory or judicial review of the action of the OCFR in approving the Conversion Application or the FRB in approving the Holding Company Conversion Application, and (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 OCFR.
(e) At the Closing Time, the Agent shall have received a certificate of the Chief Executive Officers of the Mutual Holding Company, Company and Bank and the Chief Financial Officer of the Mutual Holding Company, Company and 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) the Registration Statement, the Prospectus and the General Disclosure Package do not contain any Issuer Free Writing 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) 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.
(f) As of the date hereof, the Agent shall have received from FORVIS a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) they are independent public accountants with respect to the Mutual Holding Company, Company and Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations, they are registered with the PCAOB, and all other legal matters relating to this Agreement, any they are not in violation of the Other Sales Agreements auditor independence requirements of the Xxxxxxxx-Xxxxx Act; (ii) it is their opinion that the financial statements and any Terms Agreements, supporting schedules included in the Registration Statement and the transactions contemplated hereby and thereby shall be reasonably satisfactory 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 FORVIS 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 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 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 Company or the Bank or any decrease in total assets, the allowance for loan losses, total deposits or equity of the Company or the Bank, in each case as compared with the amounts shown in the December 31, 2022 audited balance sheets 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 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 or the Bank or increases in interest expense or the provision for loan losses, except in all instances for increases or decreases which the Registration Statement, 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 FORVIS 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 Agents, and the Company Agent shall have been furnished to with such counsel all documents and information that opinions as they may reasonably require for the purposes purpose of enabling them to pass upon such mattersthe issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations and or warranties, or the satisfaction fulfillment of any of the conditions or agreements conditions, herein contained.
(d) The Agent shall have received (i) the opinion of Xxxxxxx Xxxxx LLP, Maryland counsel for ; and all proceedings taken by the Company in connection with the issuance and sale of the Operating Partnership, addressed to such Agent Securities as herein contemplated shall be satisfactory in form and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, the form of which is attached hereto as Exhibit A and (ii) the opinion or opinions and letter or letters of Xxxxxx & Xxxxxxx LLP, special corporate and tax counsel for the Company, addressed substance to the Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, the form of which is attached hereto as Exhibit B.
(e) The Agent shall have received from Sidley Austin LLP, counsel for the Agent, such letter, addressed to the Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, with respect to the Registration Statement, the Prospectus and the Disclosure Package and other related matters as the Agent may reasonably request, and the Company shall have furnished to such counsel such documents and information as they may reasonably request to enable them to pass upon such matters.
(fk) At the dates specified in Section 3(a)(xiv) and 3(a)(xxvii) hereof, the Agent shall have received from Deloitte & Touche LLP, independent public accountants for the Company and the Operating Partnership, or other independent public accountants of nationally recognized standing for the Company and the Operating Partnership, a letter, in form and substance satisfactory any time prior to the AgentClosing Time, addressed to the Agent and dated the date of delivery thereof (i) confirming that they are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted thereunder by the Commission and the Public Company Accounting Oversight Board (United States), and (ii) stating, as of the date of delivery thereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus and the Disclosure Package and any amendments or supplements thereto, as of a date not more than three days prior to the date of delivery thereof), the conclusions and findings of such firm with respect to the financial statements of the Company, the Operating Partnership and any other properties, businesses or entities (including any pro forma financial statements) and certain financial information regarding the Company, the Operating Partnership and, if applicable, such other properties, businesses or entities contained or incorporated by reference in the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus (other than any electronic road show) and the Prospectus and any amendments or supplements thereto, as customarily covered by accountants’ “comfort letters” in connection with public offerings. If the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus contains or incorporates by reference the financial statements of any properties, businesses or entities whose independent public accountants are not the same as the Company’s independent public accountants, then, at the dates specified in Section 3(a)(xiv) and 3(a)(xxvii) hereof, the Agent shall have received from an independent public accountant of nationally recognized standing, a letter, in form and substance satisfactory to the Agent, addressed to the Agent and dated the date of delivery thereof, as to the matters set forth in the preceding sentence but modified to relate solely to such financial statements and any other financial information contained or incorporated by reference in the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus and any amendments or supplements thereto relating to such properties, businesses or entities, as the case may be.
(g) Since the commencement of the offering of the Shares under this Agreement or, if later, since the most recent Registration Statement Amendment Date or Company Periodic Report Date (whichever is later) and, in the case of the sale of Shares pursuant to a Terms Agreement to which the Agent is a party, since the date of such Terms Agreement:
(A) in the judgment of the Agent there shall not have occurred any Material Adverse Change;
(B) there shall not have been any change, increase or decrease specified material adverse change in the letter financial markets in the United States or letters referred to in subsection (f) elsewhere or any outbreak of this Section 5 hostilities or Section 3(a)(xiv) which isescalation thereof or other calamity or crisis the effect of which, in the sole judgment of the Agent, are so material and adverse as to make it impractical impracticable to market the Securities or inadvisable to proceed with enforce contracts, including subscriptions or orders, for the offering, sale or delivery of the Shares on the terms and in the manner contemplated in the Registration Statement, the Disclosure Package and the Prospectus; and
(C) (i) no downgrading shall have occurred in the rating accorded to any securities issued or guaranteed by the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to its rating of, any securities of or guaranteed by the Company or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading).
(i) The Company shall have furnished to the Agent a certificate of an officer in a form satisfactory to the Agent stating the minimum gross sales price per share for sale of Shares pursuant to this Agreement and the other information specified in clauses (x) and (y) of Section 2(b) and, in the event of any change in such information, shall promptly provide the Agent with a new certificate of an officer setting forth such changed information (and the receipt of such certificate and any such new certificate shall have been confirmed by the Agent (which confirmation may be by facsimile transmission or electronic mail)Securities, and (ii) trading generally on each date specified in Section 3(a)(xii) and 3(a)(xxvii)any of the NYSE MKT, the Company shall have furnished to New York Stock Exchange or the Agent a certificate to the effect set forth in Exhibit C attached hereto (and including any changes proposed by the Company reasonably satisfactory to the Agent and its counsel and such additional matters as the Agent may reasonably request) of the Chairman of the Board, Chief Executive Officer, President or Chief Operating Officer of the Company and the Chief Financial Officer or Chief Accounting Officer of the Company (1) on behalf of the Company itself and (2) in its capacity as general partner of the Operating Partnership, on behalf of the Operating Partnership.
(i) Subsequent to the later of (i) the execution and delivery of this Agreement or (ii) the most recent Company Periodic Report Date or Registration Statement Amendment Date (whichever is later) and, in connection with any Terms Agreement, subsequent to the date of such Terms Agreement, there Nasdaq Stock Market shall not have occurred any of the following: (i) trading or quotation in any securities issued or guaranteed by the Company or the Operating Partnership shall have been suspended or limited by the Commission or by the Exchange; (ii) trading in securities generally on the Exchange shall have been suspended or limitedsuspended, or and minimum or maximum prices for trading shall not have been generally established on fixed, or maximum ranges for prices for securities have been required, by any of such stock exchange said exchanges or by order of the Commission or FINRA; (iii) any other governmental authority, and a general banking moratorium shall not have been declared by federal either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States has occurred; or (iv) there shall have occurred any outbreak or escalation of national or international hostilities or any crisis or calamity, or any change in the United States or international financial markets, or any substantial change or development involving a prospective substantial change in United States’ or international political, financial or economic conditions, as in the judgment of the Agent is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares in the manner and on the terms described in the Prospectus and the Disclosure Package or to enforce contracts for the sale of securitiesMaryland authorities.
(j) The Exchange shall have approved the Shares for listing, subject only to official notice of issuance, and satisfactory evidence of such action shall have been provided to the Agent.
(k) On or prior to each Delivery Date, the Company shall have furnished to the Agent such further certificates and documents as the Agent may reasonably request.
(l) In the case of any Terms Agreement, any additional conditions specified therein to the obligations of the Agent thereunder shall have been satisfied as of the dates required. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Agent.
Appears in 2 contracts
Samples: Agency Agreement (BV Financial, Inc.), Agency Agreement (BV Financial, 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 registered holders from time to time of the Notes shall be subject:
(a) Each Agent shall be entitled to compensation to be agreed upon in writing in a separate letter with the 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 jointly and severally 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 jointly and severally hereby agree 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 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 other paper or document reasonably believed by them, in good faith and without gross negligence, to be genuine and to have been presented, signed or sent by an Authorized Representative of the Issuer or the Guarantor. The obligations of the Agent hereunder with respect to any Shares that Issuer or the Company has instructed the Agent to sell as agent and the obligations Guarantor under this Section 8(a) shall survive payment of the Notes or Guarantee, the resignation or removal of such Agent hereunder or the termination of this Agreement and any termination under any Terms Agreement with respect to any Shares that the Agent has agreed to purchase or has the option to purchase as principal pursuant to such Terms Agreement are subject to (i) the accuracy of the representations and warranties of the Company and the Operating Partnership contained herein, (a) as of the date of this Agreement, bankruptcy law.
(b) In acting under this Agreement and in connection with the Notes and the Guarantee, the Agents are acting solely as agents of the date such instructions are given to Issuer and the Agent or the date of such Terms AgreementGuarantor, as the case may be, and do not assume any obligation towards or relationship of agency or trust for or with any of the registered holders or beneficial holders of the Notes, except that all funds held by any Paying Agent or the Registrar for the payment of 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 Notes, but need not be segregated from other funds held by it, except as required by law; provided that moneys paid by the Issuer or the Guarantor to 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 (cwhether 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 manner set forth in the Conditions, whereupon the aforesaid trust shall terminate and all liability of each subsequent Registration Statement Amendment Date and Company Periodic Report Date and (d) as of each Applicable Time and Delivery Date such Agent with respect to such Shares, (ii) the accuracy of the statements of the Company and the Operating Partnership made in any certificates pursuant to the provisions hereof, and (iii) the performance by the Company and the Operating Partnership of their respective covenants and other obligations hereunder and, if applicable, under such Terms Agreement, and to each of the following additional terms and conditions:
(a) The Company moneys shall have filed the Prospectus and, in the case of any offering or sale of Shares pursuant to a Terms Agreement, the applicable preliminary prospectus with the Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act (without giving effect to Rule 424(b)(8)). The Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act in connection with the issuance and sale of the Shares, in each case used or referred to after the date hereof, within the applicable time periods prescribed for such filings under such Rule 433. No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or preventing or suspending the use of any preliminary prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding or examination for such purpose shall have been instituted or threatened by the Commission; any request of the Commission for inclusion of additional information in the Registration Statement, any preliminary prospectus or the Prospectus or otherwise shall have been complied with; the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; the Company shall not have received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to the use of the automatic shelf registration statement form; and FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements;
(b) The Agent shall not have discovered and disclosed to the Company that the Registration Statement, the Prospectus or the Disclosure Package, or any amendment or supplement thereto relating to the Shares, contains an untrue statement of a fact which, in the judgment of Sidley Austin LLP, counsel for the Agents, is material or omits to state a fact which, in the judgment of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleadingcease.
(c) All corporate and partnership proceedings and other legal matters incident Any Agent may consult with counsel satisfactory to the authorization, form and validity of the Sales Agreements, any Terms Agreements, the Shares, the Registration Statement, any preliminary prospectus, the Prospectus it and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement, any advice or written opinion of the Other Sales Agreements and any Terms Agreements, and the transactions contemplated hereby and thereby such counsel shall be reasonably satisfactory full and complete authorization and protection in all material respects to counsel for the Agents, and the Company shall have furnished to such counsel all documents and information that they may reasonably require for the purposes of enabling them to pass upon such matters, or in order to evidence the accuracy respect of any of the representations action taken, suffered or omitted to be taken by it hereunder in good faith and warranties, without negligence and in accordance with such advice or the satisfaction of any of the conditions or agreements herein containedopinion.
(d) The Agent 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 received (i) if they were not such Agents, and may engage or be interested in any financial or other transaction with the opinion Issuer or the Guarantor, and may act on, or as depositary, trustee or agent for, any committee or body of Xxxxxxx Xxxxx LLPholders of Notes or other obligations of the Issuer or the Guarantor, Maryland counsel for the Company and the Operating Partnership, addressed to as freely as if they were not such Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, the form of which is attached hereto as Exhibit A and (ii) the opinion or opinions and letter or letters of Xxxxxx & Xxxxxxx LLP, special corporate and tax counsel for the Company, addressed to the Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, the form of which is attached hereto as Exhibit B.Agents.
(e) The Agent shall have received from Sidley Austin LLPSubject to any agreement among the Issuer, counsel for the Agent, such letter, addressed Guarantor and the Agents to the Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, with respect to the Registration Statementcontrary, the Prospectus and Agents shall not be under any liability for interest on any moneys received by them pursuant to any of the Disclosure Package and other related matters as provisions of this Agreement, the Agent may reasonably request, and Notes or the Company shall have furnished to such counsel such documents and information as they may reasonably request to enable them to pass upon such mattersGuarantee.
(f) At the dates specified The recitals contained in Section 3(a)(xiv) and 3(a)(xxvii) hereof, the Agent shall have received from Deloitte & Touche LLP, independent public accountants for the Company and the Operating Partnership, or other independent public accountants of nationally recognized standing for the Company and the Operating Partnership, a letterthis Agreement, in form and substance satisfactory to the Agent, addressed to Notes (except the Agent and dated the date of delivery thereof (i) confirming that they are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted thereunder by the Commission and the Public Company Accounting Oversight Board (United States), and (ii) stating, as of the date of delivery thereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus and the Disclosure Package and any amendments or supplements thereto, as of a date not more than three days prior to the date of delivery thereof), the conclusions and findings of such firm with respect to the financial statements of the Company, the Operating Partnership and any other properties, businesses or entities (including any pro forma financial statements) and certain financial information regarding the Company, the Operating Partnership and, if applicable, such other properties, businesses or entities contained or incorporated by reference in the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus (other than any electronic road show) and the Prospectus and any amendments or supplements thereto, as customarily covered by accountants’ “comfort letters” in connection with public offerings. If the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus Registrar’s or the Prospectus contains or incorporates by reference the financial statements of any properties, businesses or entities whose independent public accountants are not the same as the Company’s independent public accountants, then, at the dates specified in Section 3(a)(xiv) and 3(a)(xxvii) hereof, the Agent shall have received from an independent public accountant of nationally recognized standing, a letter, in form and substance satisfactory to the Fiscal Agent, addressed to the Agent and dated the date of delivery thereof, as to the matters set forth in the preceding sentence but modified to relate solely to such financial statements and any other financial information contained or incorporated by reference in the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus and any amendments or supplements thereto relating to such properties, businesses or entities’s, as the case may be, certificates of authentication) and in the Guarantee shall 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 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) Since the commencement of the offering of the Shares under The Agents, their officers, employees and agents shall be obligated to perform such duties and only such duties as are specifically set forth in this Agreement or, if later, since the most recent Registration Statement Amendment Date or Company Periodic Report Date (whichever is later) andAgreement, in the case of the sale of Shares pursuant to a Terms Agreement to which the Agent is a party, since the date of such Terms Agreement:
(A) in the judgment of the Agent there shall not have occurred any Material Adverse Change;
(B) there shall not have been any change, increase or decrease specified in the letter or letters referred to in subsection (f) of this Section 5 or Section 3(a)(xiv) which is, in the sole judgment of the Agent, so material and adverse as to make it impractical or inadvisable to proceed with the offering, sale or delivery of the Shares on the terms Notes and in the manner contemplated in the Registration StatementGuarantee, and no implied duties or obligations shall be read into this Agreement, the Disclosure Package and Notes or the Prospectus; andGuarantee against them.
(Ch) In no event shall the Agents be responsible or liable for special, indirect, consequential or punitive loss or damage of any kind whatsoever (i) no downgrading shall including, but not limited to, loss of profit), irrespective of whether the Agents have occurred in the rating accorded to any securities issued or guaranteed by the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) been advised of the Exchange Act; likelihood of such loss or damage and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to its rating of, any securities regardless of or guaranteed by the Company or any form of its subsidiaries (other than an announcement with positive implications of a possible upgrading)action.
(i) For the avoidance of doubt, under no circumstances shall the Fiscal Agent have any duty whatsoever with respect to an Event of Default under the Notes. The Company Fiscal Agent shall have furnished not be required to the Agent a certificate of an officer send any notices in a form satisfactory to the Agent stating the minimum gross sales price per share for sale of Shares pursuant to this Agreement and the other information specified in clauses (x) and (y) of Section 2(b) and, in the event of any change in such information, shall promptly provide the Agent connection with a new certificate default or Event of an officer setting forth such changed information (Default under the Notes. The Fiscal Agent shall not be required and the receipt is not authorized to file proofs of such certificate and any such new certificate shall have been confirmed by the Agent (which confirmation may be by facsimile transmission or electronic mail), and (ii) on each date specified in Section 3(a)(xii) and 3(a)(xxvii), the Company shall have furnished to the Agent a certificate to the effect set forth in Exhibit C attached hereto (and including any changes proposed by the Company reasonably satisfactory to the Agent and its counsel and such additional matters as the Agent may reasonably request) of the Chairman of the Board, Chief Executive Officer, President or Chief Operating Officer of the Company and the Chief Financial Officer or Chief Accounting Officer of the Company (1) claim on behalf of the Company itself and (2) in its capacity as general partner holders of the Operating Partnership, on behalf Notes or the owners of the Operating Partnership.
(i) Subsequent to the later of (i) the execution and delivery of this Agreement or (ii) the most recent Company Periodic Report Date or Registration Statement Amendment Date (whichever is later) and, beneficial interests in Global Notes in connection with any Terms Agreement, subsequent to the date of such Terms Agreement, there shall not have occurred any of the following: (i) trading bankruptcy or quotation in any securities issued or guaranteed by the Company or the Operating Partnership shall have been suspended or limited by the Commission or by the Exchange; (ii) trading in securities generally on the Exchange shall have been suspended or limited, or minimum or maximum prices shall have been generally established on any of such stock exchange by the Commission or FINRA; (iii) a general banking moratorium shall have been declared by federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States has occurred; or (iv) there shall have occurred any outbreak or escalation of national or international hostilities or any crisis or calamity, or any change in the United States or international financial markets, or any substantial change or development involving a prospective substantial change in United States’ or international political, financial or economic conditions, as in the judgment of the Agent is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares in the manner and on the terms described in the Prospectus and the Disclosure Package or to enforce contracts for the sale of securitiesliquidation proceeding.
(j) The Exchange Agent shall have approved the Shares for listing, subject only not be required to official notice of issuance, and satisfactory evidence of such action shall have been provided to the Agentrisk or expend its own funds in performing its obligations hereunder.
(k) On or prior to each Delivery Date, the Company shall have furnished to the Agent such further certificates and documents as the Agent may reasonably request.
(l) In the case of any Terms Agreement, any additional conditions specified therein to the obligations of the Agent thereunder shall have been satisfied as of the dates required. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Agent.
Appears in 2 contracts
Samples: Fixed Rate Fiscal and Paying Agency Agreement (Brandbev S.a r.l.), Floating Rate Fiscal and Paying Agency Agreement (Brandbev S.a r.l.)
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 with respect to any Shares that the Company has instructed the Agent to sell as agent and the obligations of the Agent hereunder and under any Terms Agreement with respect to any Shares that the Agent has agreed to purchase or has the option to purchase as principal pursuant to such Terms Agreement are subject to (i) the accuracy of the representations and warranties of the Company Company, the Bank and the Operating Partnership MHC herein contained herein, (a) as of the date of this Agreementhereof and the Closing Time, (b) as of the date such instructions are given to the Agent or the date of such Terms Agreement, as the case may be, (c) as of each subsequent Registration Statement Amendment Date and Company Periodic Report Date and (d) as of each Applicable Time and Delivery Date with respect to such Shares, (ii) the accuracy of the statements of officers and directors of the Company Company, the Bank and the Operating Partnership MHC made in any certificates pursuant to the provisions hereof, and (iii) to the performance by the Company and the Operating Partnership Bank of their respective covenants and other obligations hereunder and, if applicable, under such Terms Agreementhereunder, and to each of the following additional terms and further conditions:
(a) The Company shall have filed the Prospectus and, in the case of any offering or sale of Shares pursuant to a Terms Agreement, the applicable preliminary prospectus with the Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act (without giving effect to Rule 424(b)(8)). The Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act in connection with the issuance and sale of the Shares, in each case used or referred to after the date hereof, within the applicable time periods prescribed for such filings under such Rule 433. No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or preventing or suspending the use of any preliminary prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding or examination for such purpose shall have been instituted or threatened by the Commission; any request of the Commission for inclusion of additional information in the Registration Statement, any preliminary prospectus or the Prospectus or otherwise shall have been complied with; the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement or including any post-effective amendment thereto; , shall have been issued under the Company Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall not have received from been issued or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission any notice pursuant to Rule 401(g)(2) or the FRB and no order suspending the sale of the Securities Act objecting to the use of the automatic shelf registration statement form; and FINRA in any jurisdiction shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements;been issued.
(b) The At the Closing Time, the Agent shall not have discovered received:
(1) The favorable opinion, dated as of the Closing Time, of Lxxx Xxxxxx, PC, counsel for the Company, the Bank and disclosed the MHC, in form and substance satisfactory to counsel for the Company 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 StatementStatement (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 Prospectus or the Disclosure Packagetime it became effective, or any amendment or supplement thereto relating to the Shares, contains contained an untrue statement of a material fact which, in the judgment of Sidley Austin LLP, counsel for the Agents, is material or omits omitted to state a material fact which, in the judgment of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading or that the Prospectus (except for financial statements 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 became effective, as of the date of the Prospectus or at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, 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) All corporate At the Closing Time referred to in Section 2 hereof, the Company, the Bank and partnership proceedings and other legal matters incident the MHC shall have completed in all material respects the conditions precedent to the authorizationReorganization in accordance with the Plan, form the applicable MHC Regulations and validity 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 other regulatory authority other than those which the FRB, 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 in the Registration Statement and the Prospectus, any Material Adverse Effect, whether or not arising in the ordinary course of business, and the Agent shall have received a certificate of the Sales Agreements, any Terms AgreementsChief Executive Officer of the Company, the SharesBank 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 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 the Commission, (vii) no order suspending the FRB’s approval of the Holding Company Application and the MHC Notice, 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, to the knowledge of the Company, 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 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 preliminary prospectusuntrue 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 any Issuer Free Writing 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 Wipfli and the audit committee (A) all significant deficiencies in the design or operation of disclosure controls and procedures which are reasonably likely to adversely affect the Bank’s ability to record, process, summarize, and all 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 legal matters relating to this Agreement, any employees who have a significant role in the Company’s and the Bank’s disclosure controls and procedures.
(f) As of the Other Sales Agreements date hereof, the Agent shall have received from Wipfli a letter dated such date, in form and any Terms Agreementssubstance 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 transactions contemplated hereby auditor independence requirements of the Sxxxxxxx-Xxxxx Act; (ii) it is their opinion that the financial statements and thereby shall be reasonably satisfactory 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 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 June 30, 2017 unaudited statements of financial condition presented under the "Recent Developments" caption in the Registration Statement, or (D) during the period from June 30, 2017 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the 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 Wipfli 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 and the Foundation Shares 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 Agents, and the Company Agent shall have been furnished to with such counsel all documents and information that opinions as they may reasonably require for the purposes purpose of enabling them to pass upon such mattersthe issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations and or warranties, or the satisfaction fulfillment of any of the conditions or agreements conditions, herein contained.
(d) The Agent shall have received (i) the opinion of Xxxxxxx Xxxxx LLP, Maryland counsel for ; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Operating Partnership, addressed to such Agent issuance and delivered contribution of the Foundation Shares as herein contemplated shall be satisfactory in form and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, the form of which is attached hereto as Exhibit A and (ii) the opinion or opinions and letter or letters of Xxxxxx & Xxxxxxx LLP, special corporate and tax counsel for the Company, addressed substance to the Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, the form of which is attached hereto as Exhibit B.
(e) The Agent shall have received from Sidley Austin LLP, counsel for the Agent, such letter, addressed to the Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, with respect to the Registration Statement, the Prospectus and the Disclosure Package and other related matters as the Agent may reasonably request, and the Company shall have furnished to such counsel such documents and information as they may reasonably request to enable them to pass upon such matters.
(fk) At the dates specified in Section 3(a)(xiv) and 3(a)(xxvii) hereof, the Agent shall have received from Deloitte & Touche LLP, independent public accountants for the Company and the Operating Partnership, or other independent public accountants of nationally recognized standing for the Company and the Operating Partnership, a letter, in form and substance satisfactory any time prior to the AgentClosing Time, addressed to the Agent and dated the date of delivery thereof (i) confirming that they are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted thereunder by the Commission and the Public Company Accounting Oversight Board (United States), and (ii) stating, as of the date of delivery thereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus and the Disclosure Package and any amendments or supplements thereto, as of a date not more than three days prior to the date of delivery thereof), the conclusions and findings of such firm with respect to the financial statements of the Company, the Operating Partnership and any other properties, businesses or entities (including any pro forma financial statements) and certain financial information regarding the Company, the Operating Partnership and, if applicable, such other properties, businesses or entities contained or incorporated by reference in the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus (other than any electronic road show) and the Prospectus and any amendments or supplements thereto, as customarily covered by accountants’ “comfort letters” in connection with public offerings. If the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus contains or incorporates by reference the financial statements of any properties, businesses or entities whose independent public accountants are not the same as the Company’s independent public accountants, then, at the dates specified in Section 3(a)(xiv) and 3(a)(xxvii) hereof, the Agent shall have received from an independent public accountant of nationally recognized standing, a letter, in form and substance satisfactory to the Agent, addressed to the Agent and dated the date of delivery thereof, as to the matters set forth in the preceding sentence but modified to relate solely to such financial statements and any other financial information contained or incorporated by reference in the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus and any amendments or supplements thereto relating to such properties, businesses or entities, as the case may be.
(g) Since the commencement of the offering of the Shares under this Agreement or, if later, since the most recent Registration Statement Amendment Date or Company Periodic Report Date (whichever is later) and, in the case of the sale of Shares pursuant to a Terms Agreement to which the Agent is a party, since the date of such Terms Agreement:
(A) in the judgment of the Agent there shall not have occurred any Material Adverse Change;
(B) there shall not have been any change, increase or decrease specified material adverse change in the letter financial markets in the United States or letters referred to in subsection (f) elsewhere or any outbreak of this Section 5 hostilities or Section 3(a)(xiv) which isescalation thereof or other calamity or crisis the effect of which, in the sole judgment of the Agent, are so material and adverse as to make it impractical impracticable to market the Securities or inadvisable to proceed with enforce contracts, including subscriptions or orders, for the offering, sale or delivery of the Shares on the terms and in the manner contemplated in the Registration Statement, the Disclosure Package and the Prospectus; and
(C) (i) no downgrading shall have occurred in the rating accorded to any securities issued or guaranteed by the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to its rating of, any securities of or guaranteed by the Company or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading).
(i) The Company shall have furnished to the Agent a certificate of an officer in a form satisfactory to the Agent stating the minimum gross sales price per share for sale of Shares pursuant to this Agreement and the other information specified in clauses (x) and (y) of Section 2(b) and, in the event of any change in such information, shall promptly provide the Agent with a new certificate of an officer setting forth such changed information (and the receipt of such certificate and any such new certificate shall have been confirmed by the Agent (which confirmation may be by facsimile transmission or electronic mail)Securities, and (ii) trading generally on each date specified in Section 3(a)(xii) and 3(a)(xxvii)any of the NYSE MKT, the Company shall have furnished to New York Stock Exchange or the Agent a certificate to the effect set forth in Exhibit C attached hereto (and including any changes proposed by the Company reasonably satisfactory to the Agent and its counsel and such additional matters as the Agent may reasonably request) of the Chairman of the Board, Chief Executive Officer, President or Chief Operating Officer of the Company and the Chief Financial Officer or Chief Accounting Officer of the Company (1) on behalf of the Company itself and (2) in its capacity as general partner of the Operating Partnership, on behalf of the Operating Partnership.
(i) Subsequent to the later of (i) the execution and delivery of this Agreement or (ii) the most recent Company Periodic Report Date or Registration Statement Amendment Date (whichever is later) and, in connection with any Terms Agreement, subsequent to the date of such Terms Agreement, there Nasdaq Stock Market shall not have occurred any of the following: (i) trading or quotation in any securities issued or guaranteed by the Company or the Operating Partnership shall have been suspended or limited by the Commission or by the Exchange; (ii) trading in securities generally on the Exchange shall have been suspended or limitedsuspended, or and minimum or maximum prices for trading shall not have been generally established on fixed, or maximum ranges for prices for securities have been required, by any of such stock exchange said Exchanges or by order of the Commission or FINRA; (iii) any other governmental authority, and a general banking moratorium shall not have been declared by federal either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States has occurred; or (iv) there shall have occurred any outbreak or escalation of national or international hostilities or any crisis or calamity, or any change in the United States or international financial markets, or any substantial change or development involving a prospective substantial change in United States’ or international political, financial or economic conditions, as in the judgment of the Agent is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares in the manner and on the terms described in the Prospectus and the Disclosure Package or to enforce contracts for the sale of securitiesWisconsin authorities.
(j) The Exchange shall have approved the Shares for listing, subject only to official notice of issuance, and satisfactory evidence of such action shall have been provided to the Agent.
(k) On or prior to each Delivery Date, the Company shall have furnished to the Agent such further certificates and documents as the Agent may reasonably request.
(l) In the case of any Terms Agreement, any additional conditions specified therein to the obligations of the Agent thereunder shall have been satisfied as of the dates required. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Agent.
Appears in 2 contracts
Samples: Agency Agreement (FFBW, Inc.), Agency Agreement (FFBW, 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 with respect to any Shares that the Company has instructed the Agent to sell as agent and the obligations of the Agent hereunder and under any Terms Agreement with respect to any Shares that the Agent has agreed to purchase or has the option to purchase as principal pursuant to such Terms Agreement are subject to (i) the accuracy of the representations and warranties of the Company Company, the MHC and the Operating Partnership Bank herein contained herein, (a) as of the date of this Agreementhereof and the Closing Time, (b) as of the date such instructions are given to the Agent or the date of such Terms Agreement, as the case may be, (c) as of each subsequent Registration Statement Amendment Date and Company Periodic Report Date and (d) as of each Applicable Time and Delivery Date with respect to such Shares, (ii) the accuracy of the statements of officers and directors of the Company Company, the MHC and the Operating Partnership Bank made in any certificates pursuant to the provisions hereof, and (iii) to the performance by the Company Company, the MHC and the Operating Partnership Bank of their respective covenants and other obligations hereunder and, if applicable, under such Terms Agreementhereunder, and to each of the following additional terms and further conditions:
(a) The Company shall have filed the Prospectus and, in the case of any offering or sale of Shares pursuant to a Terms Agreement, the applicable preliminary prospectus with the Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act (without giving effect to Rule 424(b)(8)). The Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act in connection with the issuance and sale of the Shares, in each case used or referred to after the date hereof, within the applicable time periods prescribed for such filings under such Rule 433. No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or preventing or suspending the use of any preliminary prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding or examination for such purpose shall have been instituted or threatened by the Commission; any request of the Commission for inclusion of additional information in the Registration Statement, any preliminary prospectus or the Prospectus or otherwise shall have been complied with; the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement or including any post-effective amendment thereto; , shall have been issued under the Company Securities Act or proceedings therefor initiated or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall not have received from been issued or proceedings therefor initiated or, to the Commission any notice pursuant to Rule 401(g)(2) knowledge of the Company, threatened by the FRB, and no order suspending the sale of the Securities Act objecting to the use of the automatic shelf registration statement form; and FINRA in any jurisdiction shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements;been issued.
(b) The At the Closing Time, the Agent shall not have discovered received:
(1) The favorable opinion, dated as of the Closing Time, of Xxxxx Lovells US LLP, counsel for the Company, the MHC and disclosed the Bank, in form and substance satisfactory to counsel for the Company Agent, set forth on Exhibit A hereto.
(2) The favorable opinion, dated as of the Closing Time, of Xxxxxxx Procter LLP, counsel for the Agent, with respect to such matters as the Agent may reasonably require.
(3) In addition to giving their opinions required by subsections (b)(l) and (b)(2), respectively, of this Section, Xxxxx Lovells US LLP and Xxxxxxx Procter LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration StatementStatement (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 Prospectus or the Disclosure Packagetime it became effective, or any amendment or supplement thereto relating to that the SharesGeneral Disclosure Package as of the Applicable Time, contains contained an untrue statement of a material fact which, in the judgment of Sidley Austin LLP, counsel for the Agents, is material or omits omitted to state a material fact which, in the judgment of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements, stock valuation information and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, Xxxxx Lovells US LLP and Xxxxxxx Procter LLP may rely as to matters of fact on certificates of officers and directors of the Company, the MHC and the Bank and certificates of public officials, and Xxxxxxx Procter LLP may also rely on the opinion of Xxxxx Lovells US LLP.
(c) All corporate At the Closing Time referred to in Section 2, the Company, the MHC and partnership the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company or the Bank by the FRB, or any other regulatory authority other than those which the FRB or the Division permits to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Company, the MHC and the Bank, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC, and of the Bank, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) there shall have been no material transaction entered into by the Company, the MHC or the Bank from the latest date as of which the financial condition of the Company, the MHC or the Bank, as set forth in the Registration Statement and the General Disclosure Package, including the Prospectus, other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice, (iii) neither the Company nor the Bank shall have received from the FRB any order or direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business, financial condition, results of operations or prospects of the Company, the MHC or the Bank, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (v) each of the Company, the MHC and the Bank has complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time, (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission, and (vii) no order suspending the Subscription and Community Offering or the Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or, to their knowledge, threatened by the FRB and no person has sought to obtain regulatory or judicial review of the action of the Division in approving the Plan nor has any person sought to obtain regulatory or judicial review of the action of the FRB in approving the Holding Company Application.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of the Company, of the MHC and of the Bank and the Chief Financial Officer of the Company, of the MHC and of the Bank, dated as of the Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on their knowledge, the Registration Statement and the General Disclosure Package, including the Prospectus, do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on their knowledge, the financial statements and other legal matters incident financial information included in the Registration Statement and the General Disclosure Package, including the Prospectus, fairly present the financial condition and results of operations of the MHC and the subsidiaries as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus.
(f) At the time of the execution of this Agreement, the Agent shall have received from Xxxxxxxxx, XxxXxxx & Company, P.C., a letter dated such date, in form and substance satisfactory to the authorizationAgent, form to the effect that: (i) they are independent public accountants with respect to the MHC, the Company and validity the Bank within the meaning of the Sales Agreements, any Terms AgreementsCode of Ethics of the American Institute of Certified Public Accountants, the SharesSecurities Act and the Securities Act Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the 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 Xxxxxxxxx, XxxXxxx & Company, P.C. set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the MHC included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations or are not presented in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five days prior to the date of this Agreement, there has been any preliminary prospectusincrease in the consolidated long-term or short-term debt of the MHC and the Bank or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings of the MHC and the Bank, in each case as compared with the amounts shown in the consolidated statements of financial conditions included in the Registration Statement or, (D) during the period from [ ], 2014 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the MHC, except in all instances for increases or decreases which the Registration Statement and the General Disclosure Package, including the Prospectus, disclose have occurred or may occur; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and the General Disclosure Package, including the Prospectus and any Issuer Free Writing Prospectuswhich are specified by the Agent, and all have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other legal matters relating to this Agreement, any records of the Other Sales Agreements and any Terms Agreements, MHC and the transactions contemplated hereby and thereby Bank identified in such letter.
(g) At the Closing Time, the Agent shall have received from Xxxxxxxxx, XxxXxxx & Company, P.C. a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be reasonably satisfactory in all material respects a date not more than five days prior to the Closing Time.
(h) At the Closing Time, the Securities shall have been approved for trading on the Nasdaq Capital Market upon notice of issuance.
(i) At the Closing Time, the Agent shall have received a letter from the Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agents, and the Company Agent shall have been furnished to with such counsel all documents and information that opinions as they may reasonably require for the purposes purpose of enabling them to pass upon such mattersthe 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 and or warranties, or the satisfaction fulfillment of any of the conditions or agreements conditions, herein contained.
(d) The Agent shall have received (i) the opinion of Xxxxxxx Xxxxx LLP, Maryland counsel for ; and all proceedings taken by the Company in connection with the issuance and sale of the Securities and the Operating Partnership, addressed to such Agent Foundation Shares as herein contemplated shall be satisfactory in form and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, the form of which is attached hereto as Exhibit A and (ii) the opinion or opinions and letter or letters of Xxxxxx & Xxxxxxx LLP, special corporate and tax counsel for the Company, addressed substance to the Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, the form of which is attached hereto as Exhibit B.
(e) The Agent shall have received from Sidley Austin LLP, counsel for the Agent, such letter, addressed to the Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, with respect to the Registration Statement, the Prospectus and the Disclosure Package and other related matters as the Agent may reasonably request, and the Company shall have furnished to such counsel such documents and information as they may reasonably request to enable them to pass upon such matters.
(fk) At the dates specified in Section 3(a)(xiv) and 3(a)(xxvii) hereof, the Agent shall have received from Deloitte & Touche LLP, independent public accountants for the Company and the Operating Partnership, or other independent public accountants of nationally recognized standing for the Company and the Operating Partnership, a letter, in form and substance satisfactory any time prior to the AgentClosing Time, addressed to the Agent and dated the date of delivery thereof (i) confirming that they are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted thereunder by the Commission and the Public Company Accounting Oversight Board (United States), and (ii) stating, as of the date of delivery thereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus and the Disclosure Package and any amendments or supplements thereto, as of a date not more than three days prior to the date of delivery thereof), the conclusions and findings of such firm with respect to the financial statements of the Company, the Operating Partnership and any other properties, businesses or entities (including any pro forma financial statements) and certain financial information regarding the Company, the Operating Partnership and, if applicable, such other properties, businesses or entities contained or incorporated by reference in the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus (other than any electronic road show) and the Prospectus and any amendments or supplements thereto, as customarily covered by accountants’ “comfort letters” in connection with public offerings. If the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus contains or incorporates by reference the financial statements of any properties, businesses or entities whose independent public accountants are not the same as the Company’s independent public accountants, then, at the dates specified in Section 3(a)(xiv) and 3(a)(xxvii) hereof, the Agent shall have received from an independent public accountant of nationally recognized standing, a letter, in form and substance satisfactory to the Agent, addressed to the Agent and dated the date of delivery thereof, as to the matters set forth in the preceding sentence but modified to relate solely to such financial statements and any other financial information contained or incorporated by reference in the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus and any amendments or supplements thereto relating to such properties, businesses or entities, as the case may be.
(g) Since the commencement of the offering of the Shares under this Agreement or, if later, since the most recent Registration Statement Amendment Date or Company Periodic Report Date (whichever is later) and, in the case of the sale of Shares pursuant to a Terms Agreement to which the Agent is a party, since the date of such Terms Agreement:
(A) in the judgment of the Agent there shall not have occurred any Material Adverse Change;
(B) there shall not have been any change, increase or decrease specified material adverse change in the letter financial markets in the United States or letters referred to in subsection (f) elsewhere or any outbreak of this Section 5 hostilities or Section 3(a)(xiv) which isescalation thereof or other calamity or crisis the effect of which, in the sole judgment of the Agent, is so material and adverse as to make it impractical impracticable to market the Securities or inadvisable to proceed with enforce contracts, including subscriptions or orders, for the offering, sale or delivery of the Shares on the terms and in the manner contemplated in the Registration Statement, the Disclosure Package and the Prospectus; and
(C) (i) no downgrading shall have occurred in the rating accorded to any securities issued or guaranteed by the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to its rating of, any securities of or guaranteed by the Company or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading).
(i) The Company shall have furnished to the Agent a certificate of an officer in a form satisfactory to the Agent stating the minimum gross sales price per share for sale of Shares pursuant to this Agreement and the other information specified in clauses (x) and (y) of Section 2(b) and, in the event of any change in such information, shall promptly provide the Agent with a new certificate of an officer setting forth such changed information (and the receipt of such certificate and any such new certificate shall have been confirmed by the Agent (which confirmation may be by facsimile transmission or electronic mail)Securities, and (ii) trading generally on each date specified in Section 3(a)(xii) and 3(a)(xxvii), either the Company shall have furnished to New York Stock Exchange or the Agent a certificate to the effect set forth in Exhibit C attached hereto (and including any changes proposed by the Company reasonably satisfactory to the Agent and its counsel and such additional matters as the Agent may reasonably request) of the Chairman of the Board, Chief Executive Officer, President or Chief Operating Officer of the Company and the Chief Financial Officer or Chief Accounting Officer of the Company (1) on behalf of the Company itself and (2) in its capacity as general partner of the Operating Partnership, on behalf of the Operating Partnership.
(i) Subsequent to the later of (i) the execution and delivery of this Agreement or (ii) the most recent Company Periodic Report Date or Registration Statement Amendment Date (whichever is later) and, in connection with any Terms Agreement, subsequent to the date of such Terms Agreement, there Nasdaq Stock Market shall not have occurred any of the following: (i) trading or quotation in any securities issued or guaranteed by the Company or the Operating Partnership shall have been suspended or limited by the Commission or by the Exchange; (ii) trading in securities generally on the Exchange shall have been suspended or limitedsuspended, or and minimum or maximum prices for trading shall not have been generally established on any fixed, or maximum ranges for prices for securities have been required, by either of such stock exchange said Exchanges or by order of the Commission or FINRA; (iii) any other governmental authority, and a general banking moratorium shall not have been declared by federal Federal, Massachusetts or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States has occurred; or (iv) there shall have occurred any outbreak or escalation of national or international hostilities or any crisis or calamity, or any change in the United States or international financial markets, or any substantial change or development involving a prospective substantial change in United States’ or international political, financial or economic conditions, as in the judgment of the Agent is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares in the manner and on the terms described in the Prospectus and the Disclosure Package or to enforce contracts for the sale of securitiesauthorities.
(j) The Exchange shall have approved the Shares for listing, subject only to official notice of issuance, and satisfactory evidence of such action shall have been provided to the Agent.
(k) On or prior to each Delivery Date, the Company shall have furnished to the Agent such further certificates and documents as the Agent may reasonably request.
(l) In the case of any Terms Agreement, any additional conditions specified therein to the obligations of the Agent thereunder shall have been satisfied as of the dates required. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Agent.
Appears in 2 contracts
Samples: Agency Agreement (Beverly Financial, Inc.), Agency Agreement (Beverly Financial, Inc.)
Conditions of Agent’s Obligations. The obligations of the Agent hereunder with respect hereunder, as to any Shares that the Company has instructed the Agent Securities to sell as agent and the obligations of the Agent hereunder and under any Terms Agreement with respect to any Shares that the Agent has agreed to purchase or has the option to purchase as principal pursuant to such Terms Agreement be delivered at each Closing Time, are subject to (i) the accuracy of the representations and warranties of the Company and the Operating Partnership contained herein, (a) as of the date of this Agreement, (b) as of the date such instructions are given to the Agent or the date of such Terms Agreement, as the case may be, (c) as of each subsequent Registration Statement Amendment Date and Company Periodic Report Date and (d) as of each Applicable Time and Delivery Date with respect to such Shares, (ii) the accuracy of the statements of the Company and the Operating Partnership made in any certificates pursuant to the provisions hereof, and (iii) the performance by the Company and the Operating Partnership of their respective covenants and other obligations hereunder and, if applicable, under such Terms Agreement, and to each of the following additional terms and conditions:
(a) The Company shall have Registration Statement has been filed with the Prospectus and, in the case of any offering or sale of Shares SEC pursuant to a Terms Agreement, the applicable preliminary prospectus with the Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act and in accordance with Section 3(a) hereof (without giving effect to or a post-effective amendment has been filed and declared effective in accordance with the requirements of Rule 424(b)(8)430A). The Company shall have complied with all filing requirements applicable to any Any Issuer Represented Free Writing Prospectus and any other material that is required to be filed by with the Company SEC pursuant to Rule 433(d) under the Securities Act in connection with the issuance and sale of the Shares, in each case used or referred to after the date hereof, 433 has been filed within the applicable time periods period prescribed for such filings under such Rule 433filing by applicable rules and regulations. No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or preventing or suspending the use of any preliminary prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have part thereof has been issued and no proceeding or examination for such that purpose shall have has been instituted initiated or threatened by the Commission; SEC or any request state securities regulator, and all requests for additional information on the part of the Commission for inclusion SEC or any state securities regulator have complied with to the Agent’s reasonable satisfaction;
(b) The representations and warranties of additional information in the Registration Statement, any preliminary prospectus or the Prospectus or otherwise shall have been complied with; the Commission shall not have notified the Company of any objection set forth in Section 1 are true and correct;
(c) The Company has performed its obligations and agreements under this Agreement to be performed by it;
(d) McGuireWoods LLP, counsel for the Company, has furnished to the use of Agent their written opinion, dated the Reoffer Closing Date, in form of the Registration Statement or any post-effective amendment thereto; the Company shall not have received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting and substance satisfactory to the use of Agent, to the automatic shelf registration statement form; effect set forth in Annex I hereto and to such further effect as counsel to the Agent may reasonably request;
(e) FINRA shall have has raised no objection to the fairness and reasonableness of the underwriting terms and arrangements;
(bf) The Agent shall not have discovered and disclosed to On the Company that the Registration Statement, the Prospectus or the Disclosure Package, or any amendment or supplement thereto relating to the Shares, contains an untrue statement of a fact which, in the judgment of Sidley Austin LLP, counsel for the Agents, is material or omits to state a fact which, in the judgment of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate and partnership proceedings and other legal matters incident to the authorization, form and validity date of the Sales Agreements, any Terms Agreements, the Shares, the Registration Statement, any preliminary prospectus, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to execution of this Agreement, any of at 9:30 a.m., New York Time, on the Other Sales Agreements and any Terms Agreements, and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Agents, and the Company shall have furnished to such counsel all documents and information that they may reasonably require for the purposes of enabling them to pass upon such matters, or in order to evidence the accuracy effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at the representations and warrantiesReoffer Closing Time, or the satisfaction of any of the conditions or agreements herein contained.
(d) The Agent shall have received (i) the opinion of Xxxxx Xxxxxxx Xxxxx LLP, Maryland counsel for the Company and the Operating Partnership, addressed to such Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, the form of which is attached hereto as Exhibit A and (ii) the opinion or opinions and letter or letters of Xxxxxx & Xxxxxxx LLP, special corporate and tax counsel for the Company, addressed LLP has furnished to the Agent and delivered and a letter or letters, dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, the form respective dates of which is attached hereto as Exhibit B.
(e) The Agent shall have received from Sidley Austin LLP, counsel for the Agent, such letter, addressed to the Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, with respect to the Registration Statement, the Prospectus and the Disclosure Package and other related matters as the Agent may reasonably request, and the Company shall have furnished to such counsel such documents and information as they may reasonably request to enable them to pass upon such matters.
(f) At the dates specified in Section 3(a)(xiv) and 3(a)(xxvii) hereof, the Agent shall have received from Deloitte & Touche LLP, independent public accountants for the Company and the Operating Partnership, or other independent public accountants of nationally recognized standing for the Company and the Operating Partnership, a letterdelivery thereof, in form and substance satisfactory to the Agent, addressed to the Agent containing statements and dated the date of delivery thereof (i) confirming that they are independent public accountants within the meaning information of the Securities Act and the applicable rules and regulations adopted thereunder by the Commission and the Public Company Accounting Oversight Board (United States), and (ii) stating, as of the date of delivery thereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given type ordinarily included in the Prospectus and the Disclosure Package and any amendments or supplements thereto, as of a date not more than three days prior to the date of delivery thereof), the conclusions and findings of such firm accountant “comfort letters” with respect to the financial statements of the Company, the Operating Partnership and any other properties, businesses or entities (including any pro forma financial statements) Company and certain financial information regarding included in the Prospectus, and to the effect set forth in Annex II hereto;
(i) Neither the Company, the Operating Partnership andnor its subsidiary, if applicable, such other properties, businesses or entities contained or incorporated by reference in the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus (other than any electronic road show) and the Prospectus and any amendments or supplements thereto, as customarily covered by accountants’ “comfort letters” in connection with public offerings. If the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus contains or incorporates by reference the financial statements of any properties, businesses or entities whose independent public accountants are not the same as the Company’s independent public accountants, then, at the dates specified in Section 3(a)(xiv) and 3(a)(xxvii) hereof, the Agent shall have received from an independent public accountant of nationally recognized standing, a letter, in form and substance satisfactory to the Agent, addressed to the Agent and dated the date of delivery thereof, as to the matters set forth in the preceding sentence but modified to relate solely to such financial statements and any other financial information contained or incorporated by reference in the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus and any amendments or supplements thereto relating to such properties, businesses or entities, as the case may be.
(g) Since the commencement of the offering of the Shares under this Agreement or, if later, since the most recent Registration Statement Amendment Date or Company Periodic Report Date (whichever is later) and, in the case of the sale of Shares pursuant to a Terms Agreement to which the Agent is a party, has sustained since the date of such Terms Agreement:
(A) the latest audited financial statements included in each of the General Disclosure Package and the Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in 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 has not 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 the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the reasonable judgment of the Agent there shall not have occurred any Material Adverse Change;
(B) there shall not have been any change, increase or decrease specified in the letter or letters referred to in subsection (f) of this Section 5 or Section 3(a)(xiv) which is, in the sole judgment of the Agent, so material and adverse as to make it impractical impracticable or inadvisable to proceed with the offering, sale Offering or the delivery of the Shares Securities being delivered at such Closing Time on the terms and in the manner contemplated in the Registration Statement, the Disclosure Package and the Prospectus; and;
(Ch) (i) no downgrading shall have occurred in the rating accorded to any securities issued On or guaranteed by the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to its rating of, any securities of or guaranteed by the Company or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading).
(i) The Company shall have furnished to the Agent a certificate of an officer in a form satisfactory to the Agent stating the minimum gross sales price per share for sale of Shares pursuant to this Agreement and the other information specified in clauses (x) and (y) of Section 2(b) and, in the event of any change in such information, shall promptly provide the Agent with a new certificate of an officer setting forth such changed information (and the receipt of such certificate and any such new certificate shall have been confirmed by the Agent (which confirmation may be by facsimile transmission or electronic mail), and (ii) on each date specified in Section 3(a)(xii) and 3(a)(xxvii), the Company shall have furnished to the Agent a certificate to the effect set forth in Exhibit C attached hereto (and including any changes proposed by the Company reasonably satisfactory to the Agent and its counsel and such additional matters as the Agent may reasonably request) of the Chairman of the Board, Chief Executive Officer, President or Chief Operating Officer of the Company and the Chief Financial Officer or Chief Accounting Officer of the Company (1) on behalf of the Company itself and (2) in its capacity as general partner of the Operating Partnership, on behalf of the Operating Partnership.
(i) Subsequent to the later of (i) the execution and delivery of this Agreement or (ii) the most recent Company Periodic Report Date or Registration Statement Amendment Date (whichever is later) and, in connection with any Terms Agreement, subsequent to after the date of such Terms Agreementhereof, there shall has not have occurred any of the following: (i) trading a suspension or quotation material limitation in any securities issued or guaranteed by the Company or the Operating Partnership shall have been suspended or limited by the Commission or by the Exchange; (ii) trading in securities generally on the Exchange shall have been suspended Nasdaq Stock Market; (ii) a suspension or limited, or minimum or maximum prices shall have been generally established material limitation in trading in the Company’s securities on any of such stock exchange by the Commission or FINRANasdaq Stock Market; (iii) a general moratorium on commercial banking moratorium shall have been activities declared by federal either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States has occurredFlorida state authorities; or (iv) there shall have occurred any the outbreak or escalation of national or international hostilities or any crisis the declaration of a national emergency or calamitywar or a change in general economic, political or any change 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 or international financial marketsare such), or any substantial change or development involving a prospective substantial change in United States’ other national or international politicalcalamity or crisis, financial or economic conditions, as if the effect of any such event specified in this clause (iv) in the reasonable judgment of the Agent is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale Public Reoffer or the delivery of the Shares Securities being delivered at such Closing Time on the terms and in the manner and contemplated in the Prospectus;
(i) The Shares to be sold in the Offering shall have been approved for listing, subject to notice of issuance, on the terms described in the Prospectus and the Disclosure Package or to enforce contracts for the sale of securities.Nasdaq Stock Market;
(j) The Exchange shall have approved Company has complied with the Shares for listing, subject only to official notice provisions of issuance, and satisfactory evidence of such action shall have been provided Section 3(e) hereof with respect to the Agent.furnishing of prospectuses; and
(k) On The Company has furnished or prior caused to each Delivery Date, the Company shall have be furnished to the Agent at the Reoffer Closing Time certificates of officers of the Company satisfactory to the Agent as to the accuracy of the representations and warranties of the Company herein at and as of the Reoffer Closing Time, as to the performance by the Company of all of its obligations hereunder to be performed at or prior to the Reoffer Closing Time, as to the matters set forth in subsections (a) through (g) of this Section and as to such further certificates and documents 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, or in the Agent’s reasonable judgment is unable to be satisfied, this Agreement may be terminated by the Agent in its sole discretion by notice to the Company at any time on or prior to the applicable Closing Time. In the case of any Terms Agreementalternative, any additional conditions specified therein to the obligations of if the Agent thereunder shall so elects, it may waive any such conditions which have not been satisfied as fulfilled or may extend the time of the dates required. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Agenttheir fulfillment.
Appears in 2 contracts
Samples: Agency Agreement (Jacksonville Bancorp Inc /Fl/), Agency Agreement (Jacksonville Bancorp Inc /Fl/)
Conditions of Agent’s Obligations. The obligations of the Agent hereunder with respect to any Shares that the Company has instructed the Agent to sell as agent and the obligations of the Agent hereunder and under any Terms Agreement with respect to any Shares that the Agent has agreed to purchase or has the option to purchase as principal --------------------------------- pursuant to such Terms this Agreement are subject to (i) the accuracy of the representations and warranties of the Company and the Operating Partnership contained herein, (a) as herein or in certificates of the date of this Agreement, (b) as of the date such instructions are given to the Agent or the date of such Terms Agreement, as the case may be, (c) as of each subsequent Registration Statement Amendment Date and Company Periodic Report Date and (d) as of each Applicable Time and Delivery Date with respect to such Shares, (ii) the accuracy of the statements officers of the Company and the Operating Partnership made in any certificates delivered pursuant to the provisions hereof, as of the date hereof, and (iii) each Closing Time, to the performance by the Company and the Operating Partnership of their respective covenants and other its obligations hereunder and, if applicable, under such Terms Agreement, and to each of the following additional terms and further conditions, except the extent waived in writing by the Agent:
(a) At each Closing Time, the Agent shall have received:
(i) The favorable opinion, dated as of each Closing Time, of Igler & Dougherty, P.A., counsel for the Company, in form and xxxstanxx xxxxxxably satisfactory to counsel for the Agent, substantially in the form set forth in Exhibit A.
(ii) A letter from Hacker, Johnson & Smith, P.A., dated the effective date of the Post-Effectxxx Xxendmxxx, and updated as of each Closing Time, addressed to the Agent in the form reasonably approved by the Agent, containing statements and information of the type ordinarily included in accountant's "comfort letters" to underwriters and sales agents delivered according to Statement of Financial Accounting Standards No. 72 (or any successor bulletin), with respect to the audited financial statements and the other financial information in the Registration Statement and the Prospectus.
(b) At each Closing Time: (i) the Registration Statement and the Prospectus, as may then be amended or supplemented, 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; (ii) there shall not have been, since the respective dates as of which information is given in the Prospectus, any material adverse change in the condition (financial or otherwise), earnings, business affairs or assets of thc Company or the Subsidiaries, whether or not arising in the ordinary course of business; (iii) no action, suit or proceeding at law or in equity shall be pending or, to the Knowledge of the Company, threatened against the Company or any Subsidiary that would be required to be set forth in the Prospectus other than as set forth therein and no proceedings shall be pending or, to the Knowledge of the Company, threatened against the Company or any Subsidiary before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding could reasonably be expected to have a Material Adverse Effect, other than set forth in the Prospectus; (iv) the Company shall have filed the Prospectus andcomplied, in the case of any offering or sale of Shares pursuant to a Terms Agreementall material respects, the applicable preliminary prospectus with the Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act (without giving effect to Rule 424(b)(8)). The Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus agreements and any other material required satisfied all conditions on its part to be filed by performed or satisfied at or prior to each Closing Time, as applicable; (v) the other representations and warranties of the Company pursuant to Rule 433(dset forth in Section 2(a) under the Securities Act of this Agreement shall be accurate in connection with the issuance all respects as though expressly made at and sale as of the Shareseach Closing Time, in each case used or referred to after the date hereof, within the applicable time periods prescribed for such filings under such Rule 433. No as applicable; and (vi) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or preventing or suspending the use of any preliminary prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding or examination for such that purpose shall have been instituted or initiated or, to the Knowledge of the Company, threatened by the Commission; SEC or any request bank regulatory agency. At each Closing Time, the Agent shall have received a certificate of the Commission for inclusion of additional information in the Registration Statement, any preliminary prospectus or the Prospectus or otherwise shall have been complied with; the Commission shall not have notified the Company of any objection to the use President and of the form Chief Financial Officer of the Registration Statement or any post-effective amendment thereto; the Company shall not have received from the Commission any notice pursuant Company, dated as of each Closing Time, as applicable, to Rule 401(g)(2) of the Securities Act objecting to the use of the automatic shelf registration statement form; and FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements;
(b) The Agent shall not have discovered and disclosed to the Company that the Registration Statement, the Prospectus or the Disclosure Package, or any amendment or supplement thereto relating to the Shares, contains an untrue statement of a fact which, in the judgment of Sidley Austin LLP, counsel for the Agents, is material or omits to state a fact which, in the judgment of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleadingeffect.
(c) All corporate and partnership proceedings and other legal matters incident to the authorizationAt each Closing Time, form and validity of the Sales Agreements, any Terms Agreements, the Shares, the Registration Statement, any preliminary prospectus, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement, any of the Other Sales Agreements and any Terms Agreements, and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Agents, and the Company Agent shall have been furnished to with all such counsel all documents documents, certificates and information that opinions as they may reasonably require request for the purposes purpose of enabling them to pass upon such mattersthe issuance and sale of the Shares as contemplated in this Agreement and the matters referred to in Section 5 of this Agreement, or and in order to evidence the accuracy and completeness of any of the representations and warrantiesrepresentations, warranties or statements of the Company, the performance of any of the covenants of the Company, or the satisfaction fulfillment of any of the conditions or agreements herein contained; and all proceedings taken by the Company at or prior to each Closing Time in connection with the authorization, issuance and sale of the Shares as contemplated in this Agreement shall be satisfactory in form and substance to the Agent and its counsel.
(d) The Agent Company shall have received (i) the opinion of Xxxxxxx Xxxxx LLPpaid, Maryland counsel for the Company and the Operating Partnership, addressed to such Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, the form of which is attached hereto as Exhibit A and (ii) the opinion or opinions and letter or letters of Xxxxxx & Xxxxxxx LLP, special corporate and tax counsel for the Company, addressed made arrangements satisfactory to the Agent and delivered and dated on each date specified in for the payment of, all such expenses as may be required by Section 3(a)(xiii) and 3(a)(xxvii) 4 hereof, the form of which is attached hereto as Exhibit B..
(e) The Agent Shares shall have received been qualified or registered for sale, or are subject to an available exemption from Sidley Austin LLPsuch qualification or registration, counsel for under the Agent, "blue sky" or securities laws of such letter, addressed jurisdictions as shall have been agreed to by the Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, with respect to the Registration Statement, the Prospectus and the Disclosure Package and other related matters as the Agent may reasonably requestCompany, and the Company Offering contemplated by this Agreement shall have furnished to such counsel such documents and information as they may reasonably request to enable them to pass upon such matters.
(f) At been cleared by the dates NASD. If any of the conditions specified in this Section 3(a)(xiv) and 3(a)(xxvii) hereof, the Agent shall have received from Deloitte & Touche LLP, independent public accountants for the Company and the Operating Partnership, or other independent public accountants of nationally recognized standing for the Company and the Operating Partnership, a letter, in form and substance satisfactory to the Agent, addressed to the Agent and dated the date of delivery thereof (i) confirming that they are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted thereunder by the Commission and the Public Company Accounting Oversight Board (United States), and (ii) stating, as of the date of delivery thereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus and the Disclosure Package and any amendments or supplements thereto, as of a date not more than three days prior to the date of delivery thereof), the conclusions and findings of such firm with respect to the financial statements of the Company, the Operating Partnership and any other properties, businesses or entities (including any pro forma financial statements) and certain financial information regarding the Company, the Operating Partnership and, if applicable, such other properties, businesses or entities contained or incorporated by reference in the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus (other than any electronic road show) and the Prospectus and any amendments or supplements thereto, as customarily covered by accountants’ “comfort letters” in connection with public offerings. If the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus contains or incorporates by reference the financial statements of any properties, businesses or entities whose independent public accountants are not the same as the Company’s independent public accountants, then, at the dates specified in Section 3(a)(xiv) and 3(a)(xxvii) hereof, the Agent shall have received from an independent public accountant of nationally recognized standing, a letter, in form and substance satisfactory to the Agent, addressed to the Agent and dated the date of delivery thereof, as to the matters set forth in the preceding sentence but modified to relate solely to such financial statements and any other financial information contained or incorporated by reference in the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus and any amendments or supplements thereto relating to such properties, businesses or entities, as the case may be.
(g) Since the commencement of the offering of the Shares under this Agreement or, if later, since the most recent Registration Statement Amendment Date or Company Periodic Report Date (whichever is later) and, in the case of the sale of Shares pursuant to a Terms Agreement to which the Agent is a party, since the date of such Terms Agreement:
(A) in the judgment of the Agent there shall not have occurred any Material Adverse Change;
(B) there 5 shall not have been any change, increase or decrease specified in the letter or letters referred to in subsection (f) of this Section 5 or Section 3(a)(xiv) which is, in the sole judgment of the Agent, so material fulfilled when and adverse as to make it impractical or inadvisable to proceed with the offering, sale or delivery of the Shares on the terms and in the manner contemplated in the Registration Statement, the Disclosure Package and the Prospectus; and
(C) (i) no downgrading shall have occurred in the rating accorded to any securities issued or guaranteed required by the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to its rating of, any securities of or guaranteed by the Company or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading).
(i) The Company shall have furnished to the Agent a certificate of an officer in a form satisfactory to the Agent stating the minimum gross sales price per share for sale of Shares pursuant to this Agreement and the other information specified in clauses (x) and (y) of Section 2(b) andto be fulfilled, in the event of any change in such information, shall promptly provide the Agent with a new certificate of an officer setting forth such changed information (and the receipt of such certificate and any such new certificate shall have been confirmed this Agreement may be terminated by the Agent (which confirmation may be by facsimile transmission or electronic mail), and (ii) on each date specified in Section 3(a)(xii) and 3(a)(xxvii), notice to the Company shall have furnished at any time at or prior to the Agent a certificate to the effect set forth in Exhibit C attached hereto (and including any changes proposed by the Company reasonably satisfactory to applicable Closing Time, or, if the Agent and its counsel and such additional matters as so elects, the Agent may reasonably request) waive in writing any such conditions that have not been fulfilled, or may extend the time of their fulfillment. If the Chairman Agent terminates this Agreement as provided herein, such termination shall be without liability of any party to any other party, except as provided in Section 4. Notwithstanding any such termination, the Boardprovisions of Sections 4, Chief Executive Officer6, President or Chief Operating Officer of the Company 7 and the Chief Financial Officer or Chief Accounting Officer of the Company (1) on behalf of the Company itself and (2) in its capacity as general partner of the Operating Partnership, on behalf of the Operating Partnership.
(i) Subsequent to the later of (i) the execution and delivery 11 of this Agreement or (ii) the most recent Company Periodic Report Date or Registration Statement Amendment Date (whichever is later) and, shall remain in connection with any Terms Agreement, subsequent to the date of such Terms Agreement, there shall not have occurred any of the following: (i) trading or quotation in any securities issued or guaranteed by the Company or the Operating Partnership shall have been suspended or limited by the Commission or by the Exchange; (ii) trading in securities generally on the Exchange shall have been suspended or limited, or minimum or maximum prices shall have been generally established on any of such stock exchange by the Commission or FINRA; (iii) a general banking moratorium shall have been declared by federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States has occurred; or (iv) there shall have occurred any outbreak or escalation of national or international hostilities or any crisis or calamity, or any change in the United States or international financial markets, or any substantial change or development involving a prospective substantial change in United States’ or international political, financial or economic conditions, as in the judgment of the Agent is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares in the manner and on the terms described in the Prospectus and the Disclosure Package or to enforce contracts for the sale of securitieseffect.
(j) The Exchange shall have approved the Shares for listing, subject only to official notice of issuance, and satisfactory evidence of such action shall have been provided to the Agent.
(k) On or prior to each Delivery Date, the Company shall have furnished to the Agent such further certificates and documents as the Agent may reasonably request.
(l) In the case of any Terms Agreement, any additional conditions specified therein to the obligations of the Agent thereunder shall have been satisfied as of the dates required. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Agent.
Appears in 1 contract
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 with respect to any Shares that the Company has instructed the Agent to sell as agent and the obligations of the Agent hereunder and under any Terms Agreement with respect to any Shares that the Agent has agreed to purchase or has the option to purchase as principal pursuant to such Terms Agreement are subject to (i) the accuracy of the representations and warranties of the Company and the Operating Partnership Bank herein contained herein, (a) as of the date of this Agreementhereof and the Closing Time, (b) as of the date such instructions are given to the Agent or the date of such Terms Agreement, as the case may be, (c) as of each subsequent Registration Statement Amendment Date and Company Periodic Report Date and (d) as of each Applicable Time and Delivery Date with respect to such Shares, (ii) the accuracy of the statements of officers, trustees and directors, as applicable, of the Company and the Operating Partnership Bank made in any certificates pursuant to the provisions hereof, and (iii) to the performance by the Company and the Operating Partnership Bank of their respective covenants and other obligations hereunder and, if applicable, under such Terms Agreementhereunder, and to each of the following additional terms and further conditions:
(a) The Company shall have filed the Prospectus and, in the case of any offering or sale of Shares pursuant to a Terms Agreement, the applicable preliminary prospectus with the Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act (without giving effect to Rule 424(b)(8)). The Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act in connection with the issuance and sale of the Shares, in each case used or referred to after the date hereof, within the applicable time periods prescribed for such filings under such Rule 433. No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or any post-effective amendment thereto proceedings therefor initiated or preventing or threatened by the Commission, no order suspending the Offerings or authorization for final use of any preliminary prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been issued or proceedings therefor initiated or threatened by the Superintendent or the FDIC and no proceeding or examination for such purpose order suspending the sale of the Securities in any jurisdiction shall have been instituted issued.
(b) At Closing Time, the Agent shall have received:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware.
(ii) The Company has full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and to enter into and perform its obligations under this Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact business and is in good standing in the State of New York and in each other jurisdiction in which such qualification is required whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the Company.
(iv) Upon consummation of the Conversion, and the issuance of the Foundation Shares to the Foundation immediately upon completion thereof, the authorized, issued and outstanding capital stock of the Company will be as set forth in the Prospectus under the caption "Capitalization" and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Time.
(v) The Securities and the Foundation Shares have been duly and validly authorized for issuance and sale and, when issued and delivered by the Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, or contributed by the Company pursuant to the Plan in the case of the Foundation Shares, will be duly and validly issued and fully paid and non-assessable.
(vi) The issuance of the Securities and the Foundation Shares is not subject to preemptive or other similar rights arising by operation of law or, to the best of TP&W's knowledge and information, otherwise.
(vii) The Bank has been at all times since 1875 and prior to the Closing Time duly organized, validly existing and in good standing under the laws of the State of New York as a New York state chartered savings bank of mutual form, and, at Closing Time, will be duly organized, validly existing and in good standing under the laws of the State of New York as a New York state chartered savings bank of stock form, in both instances with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus; and the Bank is, and upon consummation of the Conversion will be, duly qualified as a foreign corporation in each 21 -21- jurisdiction in which the failure to so qualify would have a material adverse effect upon the financial condition, results of operations or business affairs of the Bank.
(viii) The Bank is a member in good standing of the Federal Home Loan Bank of New York and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(ix) Each direct and indirect subsidiary of the Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which the failure to so qualify would have a material adverse effect upon the financial condition, results of operations or business of the Bank and its subsidiaries, taken as a whole; the activities of each such subsidiary are permitted to subsidiaries of a bank holding company and of a New York state chartered savings bank by the rules, regulations, resolutions and practices of the FRB and the Superintendent; all of the issued and outstanding capital stock of each such subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and is owned by the Bank, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity.
(x) The Foundation has been duly incorporated and is validly existing as a non-stock corporation in good standing under the laws of the State of Delaware with corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus; the Foundation is not a bank holding company within the meaning of 12 C.F.R. Section 225.2(c) as a result of the issuance of shares of Common Stock to it in accordance with the terms of the Plan and the amounts as described in the Prospectus; no approvals are required to establish the Foundation and to contribute the shares of Common Stock thereto as described in the Prospectus other than those set forth in any written notice or order or approval or non-objection of the Conversion, the Conversion Application or the Holding Company Application, copies of which have been provided to the Agent prior to the Closing Time.
(xi) owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity.
(xii) The FRB has duly approved the Holding Company Application, the Superintendent has duly approved the Conversion Application and the FDIC has issued a letter of intent not to object to the Conversion, and no action is pending, or to the best of TP&W's knowledge, threatened, with respect to the Holding Company Application, the Conversion Application (including the establishment of the Foundation and the contribution of shares of Common Stock thereto) or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application complies with the applicable requirements of the FRB and the Conversion Application complies as to form in all material respects with the applicable requirements of the Superintendent and the FDIC (including all documents required to be filed as exhibits thereto); each of the Holding Company Application and the Conversion Application is, to the best of TP&W's knowledge and information, truthful, accurate and complete; and the Company is duly authorized to become a bank holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank to be issued pursuant to the Plan.
(xiii) which the Company, the Bank or their subsidiaries is a party or by which any of them may be bound, or to which any of the property or assets of the Company, the Bank or its subsidiaries is subject that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business affairs of the Company, the Bank and its subsidiaries considered as one enterprise.
(xiv) The Prospectus has been duly authorized by the Superintendent and the FDIC for final use pursuant to the Conversion Regulations and no action is pending, or to the best of TP&W's knowledge, is threatened, by the Superintendent or the FDIC to revoke such authorization.
(xv) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act or, to the best of TP&W's knowledge, proceedings therefor initiated or threatened by the Commission; .
(xvi) No further approval, authorization, consent or other order of any request public board or body is required in connection with the execution and delivery of this Agreement, the issuance of the Commission for inclusion of additional information in Securities and the Registration Statement, any preliminary prospectus or the Prospectus or otherwise shall have been complied with; the Commission shall not have notified the Company of any objection to the use consummation of the form Conversion, except as may be required under the securities or "Blue Sky" laws of various jurisdictions as to which no opinion need be rendered.
(xvii) At the time the Registration Statement or any post-effective amendment thereto; the Company shall not have received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to the use of the automatic shelf registration statement form; and FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements;
(b) The Agent shall not have discovered and disclosed to the Company that the Registration Statement, the Prospectus or the Disclosure Package, or any amendment or supplement thereto relating to the Shares, contains an untrue statement of a fact which, in the judgment of Sidley Austin LLP, counsel for the Agents, is material or omits to state a fact which, in the judgment of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate and partnership proceedings and other legal matters incident to the authorization, form and validity of the Sales Agreements, any Terms Agreements, the Sharesbecame effective, the Registration StatementStatement (other than the financial statements and statistical data included therein, any preliminary prospectus, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating as to this Agreement, any of the Other Sales Agreements and any Terms Agreements, and the transactions contemplated hereby and thereby shall which no opinion need be reasonably satisfactory rendered) complied as to form in all material respects to counsel for with the Agents, and the Company shall have furnished to such counsel all documents and information that they may reasonably require for the purposes of enabling them to pass upon such matters, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements herein contained.
(d) The Agent shall have received (i) the opinion of Xxxxxxx Xxxxx LLP, Maryland counsel for the Company and the Operating Partnership, addressed to such Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, the form of which is attached hereto as Exhibit A and (ii) the opinion or opinions and letter or letters of Xxxxxx & Xxxxxxx LLP, special corporate and tax counsel for the Company, addressed to the Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, the form of which is attached hereto as Exhibit B.
(e) The Agent shall have received from Sidley Austin LLP, counsel for the Agent, such letter, addressed to the Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, with respect to the Registration Statement, the Prospectus and the Disclosure Package and other related matters as the Agent may reasonably request, and the Company shall have furnished to such counsel such documents and information as they may reasonably request to enable them to pass upon such matters.
(f) At the dates specified in Section 3(a)(xiv) and 3(a)(xxvii) hereof, the Agent shall have received from Deloitte & Touche LLP, independent public accountants for the Company and the Operating Partnership, or other independent public accountants of nationally recognized standing for the Company and the Operating Partnership, a letter, in form and substance satisfactory to the Agent, addressed to the Agent and dated the date of delivery thereof (i) confirming that they are independent public accountants within the meaning requirements of the Securities Act and the applicable rules and regulations adopted thereunder by the Commission Securities Act Regulations and the Public Company Accounting Oversight Board Conversion Regulations.
(United States)xviii) The Common Stock conforms to the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(iixix) stating, as of the date of delivery thereof (or, with respect to matters involving changes There are no legal or developments since the respective dates as of which specified financial information is given in the Prospectus and the Disclosure Package and any amendments governmental proceedings pending or supplements thereto, as of a date not more than three days prior to the date of delivery thereof), the conclusions and findings of such firm with respect to the financial statements of threatened against or affecting the Company, the Operating Partnership Bank or their subsidiaries or the Foundation which are required, individually or in the aggregate, to be disclosed in the Registration Statement and any Prospectus, other propertiesthan those disclosed therein, businesses and all pending legal or entities (including any pro forma financial statements) and certain financial information regarding governmental proceedings to which the Company, the Operating Partnership and, if applicable, such other properties, businesses Bank or entities contained any of their subsidiaries is a party or incorporated by reference to which any of their property is subject which are not described in the 24 -24- Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus (other than any electronic road show) and the Prospectus and any amendments or supplements thereto, as customarily covered by accountants’ “comfort letters” in connection with public offerings. If the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus contains or incorporates by reference the financial statements of any properties, businesses or entities whose independent public accountants are not the same as the Company’s independent public accountants, then, at the dates specified in Section 3(a)(xiv) and 3(a)(xxvii) hereof, the Agent shall have received from an independent public accountant of nationally recognized standing, a letter, in form and substance satisfactory including ordinary routine litigation incidental to the Agentbusiness, addressed to the Agent and dated the date of delivery thereofare, as to the matters set forth considered in the preceding sentence but modified to relate solely to such financial statements and any other financial information contained or incorporated by reference in the Registration Statementaggregate, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus and any amendments or supplements thereto relating to such properties, businesses or entities, as the case may benot material.
(gxx) Since the commencement of the offering of the Shares under this Agreement or, if later, since the most recent Registration Statement Amendment Date or Company Periodic Report Date (whichever is later) and, The information in the case of Prospectus under the sale of Shares pursuant to a Terms Agreement to which the Agent is a party, since the date of such Terms Agreement:
(A) in the judgment of the Agent there shall not have occurred any Material Adverse Change;
(B) there shall not have been any change, increase or decrease specified in the letter or letters referred to in subsection (f) of this Section 5 or Section 3(a)(xiv) which is, in the sole judgment of the Agent, so material captions "Dividend Policy," "Regulatory Capital Compliance," "Federal and adverse as to make it impractical or inadvisable to proceed with the offering, sale or delivery of the Shares State Taxation," "Regulation and Supervision," "The Conversion," "Restrictions on the terms and in the manner contemplated in the Registration Statement, the Disclosure Package and the Prospectus; and
(C) (i) no downgrading shall have occurred in the rating accorded to any securities issued or guaranteed by the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to its rating of, any securities of or guaranteed by the Company or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading).
(i) The Company shall have furnished to the Agent a certificate of an officer in a form satisfactory to the Agent stating the minimum gross sales price per share for sale of Shares pursuant to this Agreement and the other information specified in clauses (x) and (y) of Section 2(b) and, in the event of any change in such information, shall promptly provide the Agent with a new certificate of an officer setting forth such changed information (and the receipt of such certificate and any such new certificate shall have been confirmed by the Agent (which confirmation may be by facsimile transmission or electronic mail), and (ii) on each date specified in Section 3(a)(xii) and 3(a)(xxvii), the Company shall have furnished to the Agent a certificate to the effect set forth in Exhibit C attached hereto (and including any changes proposed by the Company reasonably satisfactory to the Agent and its counsel and such additional matters as the Agent may reasonably request) of the Chairman of the Board, Chief Executive Officer, President or Chief Operating Officer Acquisition of the Company and the Chief Financial Officer or Chief Accounting Officer Bank," and "Description of Capital Stock of the Company (1) on behalf Company," and "Description of Capital Stock of the Company itself and (2) in its capacity as general partner of the Operating Partnership, on behalf of the Operating Partnership.
(i) Subsequent Bank" to the later extent that it constitutes matters of (i) the execution and delivery law, summaries of this Agreement legal matters, documents or (ii) the most recent Company Periodic Report Date or Registration Statement Amendment Date (whichever is later) and, in connection with any Terms Agreement, subsequent to the date of such Terms Agreement, there shall not have occurred any of the following: (i) trading or quotation in any securities issued or guaranteed by the Company or the Operating Partnership shall have been suspended or limited by the Commission or by the Exchange; (ii) trading in securities generally on the Exchange shall have been suspended or limitedproceedings, or minimum or maximum prices shall have legal conclusions, has been generally established on any of such stock exchange reviewed by the Commission or FINRA; (iii) a general banking moratorium shall have been declared by federal or New York authorities or a TP&W and is complete and accurate in all material disruption in commercial banking or securities settlement or clearance services in the United States has occurred; or (iv) there shall have occurred any outbreak or escalation of national or international hostilities or any crisis or calamity, or any change in the United States or international financial markets, or any substantial change or development involving a prospective substantial change in United States’ or international political, financial or economic conditions, as in the judgment of the Agent is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares in the manner and on the terms described in the Prospectus and the Disclosure Package or to enforce contracts for the sale of securitiesrespects.
(j) The Exchange shall have approved the Shares for listing, subject only to official notice of issuance, and satisfactory evidence of such action shall have been provided to the Agent.
(k) On or prior to each Delivery Date, the Company shall have furnished to the Agent such further certificates and documents as the Agent may reasonably request.
(l) In the case of any Terms Agreement, any additional conditions specified therein to the obligations of the Agent thereunder shall have been satisfied as of the dates required. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Agent.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder with respect to any Shares that the Company has instructed the Agent to sell as agent and the obligations of the Agent hereunder and under any Terms Agreement with respect to any Shares that the Agent has agreed to purchase or has the option to purchase as principal pursuant to such Terms Agreement are subject to (i) the accuracy of the representations and warranties of the Company and the Operating Partnership Bank herein contained herein, (a) as of the date of this Agreement, (b) hereof and as of the date such instructions are given Closing Date, to the Agent or the date of such Terms Agreement, as the case may be, (c) as of each subsequent Registration Statement Amendment Date and Company Periodic Report Date and (d) as of each Applicable Time and Delivery Date with respect to such Shares, (ii) the accuracy of the written statements of officers and directors of the Company and the Operating Partnership made in any certificates pursuant to the provisions hereof, and (iii) to the performance by the Company and the Operating Partnership of their respective covenants and other obligations hereunder and, if applicable, under such Terms Agreementhereunder, and to each of the following additional terms and further conditions:
(a) The Company shall have filed the Prospectus and, in the case of any offering or sale of Shares pursuant to a Terms Agreement, the applicable preliminary prospectus with the Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act (without giving effect to Rule 424(b)(8)). The Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act in connection with the issuance and sale of the Shares, in each case used or referred to after the date hereof, within the applicable time periods prescribed for such filings under such Rule 433. No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or preventing or suspending the use of any preliminary prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding under the 1933 Act or examination for such purpose shall have been instituted proceedings therefor initiated or threatened by the Commission; any request , no order suspending the sale of the Commission for inclusion of additional information Securities in the Registration Statement, any preliminary prospectus or the Prospectus or otherwise jurisdiction shall have been complied with; the Commission shall not have notified issued, and no order, directive, request or other correspondence has been received by the Company of any objection to or the use of the form of the Registration Statement or any post-effective amendment thereto; the Company shall not have received Bank from the Commission any notice pursuant to Rule 401(g)(2) FRB, the Banking Department or the FDIC which could have the effect of delaying or canceling the Securities Act objecting to the use of the automatic shelf registration statement form; and FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements;Offering.
(b) The Agent shall not have discovered and disclosed to the Company that the Registration StatementAt Closing Time, the Prospectus or the Disclosure Package, or any amendment or supplement thereto relating to the Shares, contains an untrue statement of a fact which, in the judgment of Sidley Austin LLP, counsel for the Agents, is material or omits to state a fact which, in the judgment of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate and partnership proceedings and other legal matters incident to the authorization, form and validity of the Sales Agreements, any Terms Agreements, the Shares, the Registration Statement, any preliminary prospectus, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement, any of the Other Sales Agreements and any Terms Agreements, and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Agents, and the Company shall have furnished to such counsel all documents and information that they may reasonably require for the purposes of enabling them to pass upon such matters, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements herein contained.
(d) The Agent shall have received received:
(i) the opinion The favorable opinion, dated as of Xxxxxxx Xxxxx LLPClosing Time, Maryland of Stevens & Lee, P.C., counsel for the Company and the Operating PartnershipBank, addressed in form xxx xxxstaxxx satisfactory to such Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, the form of which is attached hereto as Exhibit A and (ii) the opinion or opinions and letter or letters of Xxxxxx & Xxxxxxx LLP, special corporate and tax counsel for the Company, addressed to the Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, the form of which is attached hereto as Exhibit B.
(e) The Agent shall have received from Sidley Austin LLP, counsel for the Agent, such letter, addressed to the Agent effect that:
(1) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the Commonwealth of Pennsylvania.
(2) The Company has full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and to enter into and perform its obligations under this Agreement.
(3) The Company is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, except where the failure to be so qualified would not have a Material Adverse Effect.
(4) The authorized capital stock of the Company is correctly set forth in the Registration Statement and Prospectus under the caption "Capitalization" and upon consummation of the Offering, the issued and outstanding capital stock of the Company will be within the range set forth in the Registration Statement and Prospectus under the caption "Capitalization."
(5) The Securities have been duly and validly authorized for issuance and sale and, when issued and delivered by the Company pursuant to the terms of the Offering against payment of the consideration therefor in accordance with the description set forth in the Prospectus, will be duly and dated on each date specified validly issued and fully paid and non-assessable and will be owned free and clear of any mortgage, pledge, loan, security interest, encumbrance, or claim (legal or equitable) other than that created by the purchaser thereof.
(6) The issuance of the Securities is not subject to preemptive or other similar rights arising by operation of law or, to the best of such counsel's knowledge, otherwise.
(7) The Bank is duly organized, and is validly existing and in Section 3(a)(xiii) and 3(a)(xxvii) hereofgood standing as a commercial bank under the laws of the Commonwealth of Pennsylvania, with respect full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the Prospectus Statement and the Disclosure Package Prospectus; and the Bank is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required, except where the failure to be so qualified would not have a Material Adverse Effect.
(8) Each of the Subsidiaries (other related matters than the Trust) has been duly incorporated and is validly existing as a corporation in good standing under the Agent may reasonably requestlaws of the jurisdiction of its incorporation, has full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus, and is duly qualified to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a Material Adverse Effect; the activities of the Bank and the Subsidiaries are permitted to a Pennsylvania chartered commercial bank under all applicable rules and regulations; all of the issued and outstanding capital stock of the Bank has been duly authorized and validly issued, is fully paid and nonassessable and is owned by the Company, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity; and all of the issued and outstanding capital stock of each of the Subsidiaries (other than the Trust) has been duly authorized and validly issued, is fully paid and nonassessable and is owned by the Bank, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity.
(9) The Trust has been duly created and is validly existing in good standing as a business trust under the laws of the State of Delaware, with the power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus, and is duly qualified to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a Material Adverse Effect; the activities of the Trust are permitted to a Pennsylvania chartered bank holding company by all applicable rules and regulations; all of the issued and outstanding capital stock of the Trust has been duly authorized and validly issued, is fully paid and nonassessable, and the Company shall have furnished to such counsel such documents Trust's common securities are owned by the Company, free and information as they may reasonably request to enable them to pass upon such mattersclear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity.
(f10) At the dates specified in Section 3(a)(xiv) The execution, delivery and 3(a)(xxvii) hereof, the Agent shall have received from Deloitte & Touche LLP, independent public accountants for the Company performance of this Agreement and the Operating Partnershipconsummation of the transactions contemplated herein do not and will not conflict with or constitute a breach of, or other independent public accountants of nationally recognized standing for the Company and the Operating Partnershipdefault under, a letter, in form and substance satisfactory to the Agent, addressed to the Agent and dated the date of delivery thereof (i) confirming that they are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted thereunder by the Commission and the Public Company Accounting Oversight Board (United States), and (ii) stating, as of the date of delivery thereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given result in the Prospectus and the Disclosure Package and creation or imposition of any amendments lien, charge or supplements thereto, as of a date not more than three days prior to the date of delivery thereof), the conclusions and findings of such firm with respect to the financial statements encumbrance upon any property or assets of the Company, the Operating Partnership and Bank or any of the Subsidiaries pursuant to, any contract, indenture, mortgage, loan agreement, note, lease or other properties, businesses or entities (including any pro forma financial statements) and certain financial information regarding instrument to which the Company, the Operating Partnership andBank or any of the Subsidiaries is a party or by which it or any of them may be bound, if applicable, such other properties, businesses or entities contained to which any of the property or incorporated by reference in assets of the Registration StatementCompany, the Disclosure Package, Bank or any Issuer Free Writing Prospectus (other than any electronic road show) and the Prospectus and any amendments or supplements thereto, as customarily covered by accountants’ “comfort letters” in connection with public offerings. If the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus contains or incorporates by reference the financial statements of any properties, businesses or entities whose independent public accountants are not the same as the Company’s independent public accountants, then, at the dates specified in Section 3(a)(xiv) and 3(a)(xxvii) hereof, the Agent shall have received from an independent public accountant of nationally recognized standing, a letter, in form and substance satisfactory to the Agent, addressed to the Agent and dated the date of delivery thereof, as to the matters set forth in the preceding sentence but modified to relate solely to such financial statements and any other financial information contained or incorporated by reference in the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus and any amendments or supplements thereto relating to such properties, businesses or entities, as the case may be.
(g) Since the commencement of the offering of the Shares under this Agreement orSubsidiaries are subject except for such liens, if later, since the most recent Registration Statement Amendment Date charges or Company Periodic Report Date (whichever is later) and, in the case of the sale of Shares pursuant to a Terms Agreement to encumbrances which the Agent is a party, since the date of such Terms Agreement:
(A) in the judgment of the Agent there shall will not have occurred any a Material Adverse Change;
(B) there shall not have been any change, increase or decrease specified in the letter or letters referred to in subsection (f) of this Section 5 or Section 3(a)(xiv) which is, in the sole judgment of the Agent, so material and adverse as to make it impractical or inadvisable to proceed with the offering, sale or delivery of the Shares on the terms and in the manner contemplated in the Registration Statement, the Disclosure Package and the Prospectus; and
(C) (i) no downgrading shall have occurred in the rating accorded to any securities issued or guaranteed by Effect upon the Company or any of its subsidiaries by Subsidiary, nor will such action result in any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) violation of the Exchange Act; and (ii) no such organization shall have publicly announced that it has under surveillance or reviewprovisions of the charter, certificate of trust, or has changed its outlook with respect to its rating ofby laws, any securities of or guaranteed by the Company Company, the Bank or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading)the Subsidiaries, or any applicable law, administrative regulation or administrative or court decree.
(i11) The Company shall have furnished Registration Statement is effective under the 1933 Act and, to the Agent a certificate of an officer in a form satisfactory to the Agent stating the minimum gross sales price per share for sale of Shares pursuant to this Agreement and the other information specified in clauses (x) and (y) of Section 2(b) and, in the event of any change in such information, shall promptly provide the Agent with a new certificate of an officer setting forth such changed information (and the receipt best of such certificate and any such new certificate shall have counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been confirmed issued under the 1933 Act or proceedings therefor initiated or threatened by the Agent (which confirmation may be by facsimile transmission or electronic mail), and (ii) on each date specified in Section 3(a)(xii) and 3(a)(xxvii), the Company shall have furnished to the Agent a certificate to the effect set forth in Exhibit C attached hereto (and including any changes proposed by the Company reasonably satisfactory to the Agent and its counsel and such additional matters as the Agent may reasonably request) of the Chairman of the Board, Chief Executive Officer, President or Chief Operating Officer of the Company and the Chief Financial Officer or Chief Accounting Officer of the Company (1) on behalf of the Company itself and (2) in its capacity as general partner of the Operating Partnership, on behalf of the Operating PartnershipCommission.
(i12) Subsequent to the later No further approval, authorization, consent or other order of (i) any public board or body is required in connection with the execution and delivery of this Agreement or the issuance of the Securities, except as may be required under the securities or Blue Sky laws of various jurisdictions as to which no opinion need be rendered.
(ii13) At the most recent Company Periodic Report Date or time the Registration Statement Amendment Date became effective, the Registration Statement (whichever is laterother than the financial statements and statistical data included therein, as to which no opinion need be rendered) and, complied as to form in connection all material respects with any Terms Agreement, subsequent the requirements of the 1933 Act and the 1933 Act Regulations.
(14) The Common Stock conforms to the date of such Terms Agreement, there shall not have occurred any of the following: (i) trading or quotation in any securities issued or guaranteed by the Company or the Operating Partnership shall have been suspended or limited by the Commission or by the Exchange; (ii) trading in securities generally on the Exchange shall have been suspended or limited, or minimum or maximum prices shall have been generally established on any of such stock exchange by the Commission or FINRA; (iii) a general banking moratorium shall have been declared by federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services description thereof contained in the United States has occurred; or Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(iv15) there shall have occurred any outbreak or escalation of national or international hostilities or any crisis or calamity, or any change in the United States or international financial markets, or any substantial change or development involving a prospective substantial change in United States’ or international political, financial or economic conditions, as in the judgment of the Agent is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares in the manner and on the terms described The statements set forth in the Prospectus under the caption "Description of Capital Stock," insofar as they purport to constitute a summary of the terms of the capital stock and the Disclosure Package or to enforce contracts for the sale options of securities.
(j) The Exchange shall have approved the Shares for listing, subject only to official notice of issuance, and satisfactory evidence of such action shall have been provided to the Agent.
(k) On or prior to each Delivery Date, the Company shall have furnished and under the captions "Prospectus Summary," "Risk Factors," "The Rights Offering," "Standby Purchase Agreement," "Management's Discussion and analysis of Financial Condition and Results of Operations, "Business," "Supervision and Regulation," "Executive Compensation" and "Description of Capital Stock," insofar as they purport to describe the Agent such further certificates provisions of the laws and documents as the Agent may reasonably requestreferred to therein, are accurate, complete and fair.
(l) In the case of any Terms Agreement, any additional conditions specified therein to the obligations of the Agent thereunder shall have been satisfied as of the dates required. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Agent.
Appears in 1 contract
Conditions of Agent’s Obligations. The obligations of one or more Agents to purchase Notes from the Agent hereunder with respect to any Shares that Trust as principal, the Company has instructed the obligations of an Agent to sell solicit offers for the purchase of Notes as an agent of the Trust and the obligations of any purchasers of Notes sold through an Agent as an agent of the Agent hereunder and under any Terms Agreement with respect to any Shares that the Agent has agreed to purchase or has the option to purchase as principal pursuant to such Terms Agreement are Trust, will be subject to (i) the accuracy of the representations and warranties on the part of the Trust herein contained, and the accuracy of the representations and warranties on the part of the Company contained in the Representations and Indemnity Agreement entered into, as of even date herewith, by and among the Company and the Operating Partnership Agents to this Agreement (the "REPRESENTATIONS AND INDEMNITY AGREEMENT") or contained herein, (a) as in any certificate of an officer or trustee of the date of this Agreement, (b) as of the date such instructions are given to the Agent Trust or the date of such Terms Agreement, as the case may be, (c) as of each subsequent Registration Statement Amendment Date and Company Periodic Report Date and (d) as of each Applicable Time and Delivery Date with respect to such Shares, (ii) the accuracy of the statements of the Company and the Operating Partnership made in any certificates delivered pursuant to the provisions hereofhereof and thereof, and (iii) as applicable, to the performance and observance by the Company and the Operating Partnership Trust of their respective its covenants and other obligations hereunder and, if applicable, or the performance and observance by the Company of its covenants and other obligations under such Terms the Representations and Indemnity Agreement, and to each of the following additional terms and conditionsconditions precedent:
(a) EFFECTIVENESS OF THE S-1 REGISTRATION STATEMENT, S-3 REGISTRATION STATEMENT AND FORM 10. The Company shall have filed the Prospectus and, in the case of S-1 Registration Statement (including any offering or sale of Shares pursuant to a Terms AgreementRule 462(b) Registration Statement), the applicable preliminary prospectus with the Commission S-3 Registration Statement (including any Rule 462(b) Registration Statement) and the information required by Rule 430B Form 10 have become effective under the Securities 1933 Act and the 1934 Act) in the manner , as applicable, and within the time period required by Rule 424(b) under the Securities Act (without giving effect to Rule 424(b)(8)). The Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act in connection with the issuance and sale of the Shares, in each case used or referred to after the date hereof, within the applicable time periods prescribed for such filings under such Rule 433. No no stop order suspending the effectiveness of the S-1 Registration Statement or any post-effective amendment thereto or preventing or suspending the use of any preliminary prospectus, the Prospectus or any Issuer Free Writing Prospectus S-3 Registration Statement shall have been issued under the 1933 Act or the 1934 Act, as applicable, and no proceeding or examination proceedings for such that purpose shall have been instituted or shall be pending or threatened by the Commission; , and any request on the part of the Commission for inclusion of additional information in the Registration Statement, any preliminary prospectus or the Prospectus or otherwise shall have been complied with; the Commission shall not have notified the Company of any objection with to the use reasonable satisfaction of the form of the Registration Statement or any post-effective amendment thereto; the Company shall not have received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting counsel to the use of the automatic shelf registration statement form; and FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements;
(b) The Agent shall not have discovered and disclosed to the Company that the Registration Statement, the Prospectus or the Disclosure Package, or any amendment or supplement thereto relating to the Shares, contains an untrue statement of a fact which, in the judgment of Sidley Austin LLP, counsel for the Agents, is material or omits to state a fact which, in the judgment of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate and partnership proceedings and other legal matters incident to the authorization, form and validity of the Sales Agreements, any Terms Agreements, the Shares, the Registration Statement, any preliminary prospectus, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement, any of the Other Sales Agreements and any Terms Agreements, and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Agents, and the Company shall have furnished to such counsel all documents and information that they may reasonably require for the purposes of enabling them to pass upon such matters, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements herein contained.
(d) The Agent shall have received (i) the opinion of Xxxxxxx Xxxxx LLP, Maryland counsel for the Company and the Operating Partnership, addressed to such Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, the form of which is attached hereto as Exhibit A and (ii) the opinion or opinions and letter or letters of Xxxxxx & Xxxxxxx LLP, special corporate and tax counsel for the Company, addressed to the Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, the form of which is attached hereto as Exhibit B.
(e) The Agent shall have received from Sidley Austin LLP, counsel for the Agent, such letter, addressed to the Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, with respect to the Registration Statement, the Prospectus and the Disclosure Package and other related matters as the Agent may reasonably request, and the Company shall have furnished to such counsel such documents and information as they may reasonably request to enable them to pass upon such matters.
(f) At the dates specified in Section 3(a)(xiv) and 3(a)(xxvii) hereof, the Agent shall have received from Deloitte & Touche LLP, independent public accountants for the Company and the Operating Partnership, or other independent public accountants of nationally recognized standing for the Company and the Operating Partnership, a letter, in form and substance satisfactory to the Agent, addressed to the Agent and dated the date of delivery thereof (i) confirming that they are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted thereunder by the Commission and the Public Company Accounting Oversight Board (United States), and (ii) stating, as of the date of delivery thereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus and the Disclosure Package and any amendments or supplements thereto, as of a date not more than three days prior to the date of delivery thereof), the conclusions and findings of such firm with respect to the financial statements of the Company, the Operating Partnership and any other properties, businesses or entities (including any pro forma financial statements) and certain financial information regarding the Company, the Operating Partnership and, if applicable, such other properties, businesses or entities contained or incorporated by reference in the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus (other than any electronic road show) and the Prospectus and any amendments or supplements thereto, as customarily covered by accountants’ “comfort letters” in connection with public offerings. If the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus contains or incorporates by reference the financial statements of any properties, businesses or entities whose independent public accountants are not the same as the Company’s independent public accountants, then, at the dates specified in Section 3(a)(xiv) and 3(a)(xxvii) hereof, the Agent shall have received from an independent public accountant of nationally recognized standing, a letter, in form and substance satisfactory to the Agent, addressed to the Agent and dated the date of delivery thereof, as to the matters set forth in the preceding sentence but modified to relate solely to such financial statements and any other financial information contained or incorporated by reference in the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus and any amendments or supplements thereto relating to such properties, businesses or entities, as the case may be.
(g) Since the commencement of the offering of the Shares under this Agreement or, if later, since the most recent Registration Statement Amendment Date or Company Periodic Report Date (whichever is later) and, in the case of the sale of Shares pursuant to a Terms Agreement to which the Agent is a party, since the date of such Terms Agreement:
(A) in the judgment of the Agent there shall not have occurred any Material Adverse Change;
(B) there shall not have been any change, increase or decrease specified in the letter or letters referred to in subsection (f) of this Section 5 or Section 3(a)(xiv) which is, in the sole judgment of the Agent, so material and adverse as to make it impractical or inadvisable to proceed with the offering, sale or delivery of the Shares on the terms and in the manner contemplated in the Registration Statement, the Disclosure Package and the Prospectus; and
(C) (i) no downgrading shall have occurred in the rating accorded to any securities issued or guaranteed by the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to its rating of, any securities of or guaranteed by the Company or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading).
(i) The Company shall have furnished to the Agent a certificate of an officer in a form satisfactory to the Agent stating the minimum gross sales price per share for sale of Shares pursuant to this Agreement and the other information specified in clauses (x) and (y) of Section 2(b) and, in the event of any change in such information, shall promptly provide the Agent with a new certificate of an officer setting forth such changed information (and the receipt of such certificate and any such new certificate shall have been confirmed by the Agent (which confirmation may be by facsimile transmission or electronic mail), and (ii) on each date specified in Section 3(a)(xii) and 3(a)(xxvii), the Company shall have furnished to the Agent a certificate to the effect set forth in Exhibit C attached hereto (and including any changes proposed by the Company reasonably satisfactory to the Agent and its counsel and such additional matters as the Agent may reasonably request) of the Chairman of the Board, Chief Executive Officer, President or Chief Operating Officer of the Company and the Chief Financial Officer or Chief Accounting Officer of the Company (1) on behalf of the Company itself and (2) in its capacity as general partner of the Operating Partnership, on behalf of the Operating Partnership.
(i) Subsequent to the later of (i) the execution and delivery of this Agreement or (ii) the most recent Company Periodic Report Date or Registration Statement Amendment Date (whichever is later) and, in connection with any Terms Agreement, subsequent to the date of such Terms Agreement, there shall not have occurred any of the following: (i) trading or quotation in any securities issued or guaranteed by the Company or the Operating Partnership shall have been suspended or limited by the Commission or by the Exchange; (ii) trading in securities generally on the Exchange shall have been suspended or limited, or minimum or maximum prices shall have been generally established on any of such stock exchange by the Commission or FINRA; (iii) a general banking moratorium shall have been declared by federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States has occurred; or (iv) there shall have occurred any outbreak or escalation of national or international hostilities or any crisis or calamity, or any change in the United States or international financial markets, or any substantial change or development involving a prospective substantial change in United States’ or international political, financial or economic conditions, as in the judgment of the Agent is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares in the manner and on the terms described in the Prospectus and the Disclosure Package or to enforce contracts for the sale of securities.
(j) The Exchange shall have approved the Shares for listing, subject only to official notice of issuance, and satisfactory evidence of such action shall have been provided to the Agent.
(k) On or prior to each Delivery Date, the Company shall have furnished to the Agent such further certificates and documents as the Agent may reasonably request.
(l) In the case of any Terms Agreement, any additional conditions specified therein to the obligations of the Agent thereunder shall have been satisfied as of the dates required. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Agent.
Appears in 1 contract
Samples: Distribution Agreement (Allstate Life Global Funding)
Conditions of Agent’s Obligations. The obligations of the Agent --------------------------------- Agents to act and continue to act as Agents hereunder with respect to any Shares that the Company has instructed the Agent to sell as agent and the obligations of the Agent hereunder and under any Terms Agreement with respect to any Shares that the Agent has agreed to purchase or has the option to purchase as principal pursuant to such Terms Agreement are shall be subject to (i) the accuracy of the representations and warranties made herein on the part of the Company and the Operating Partnership contained herein, (a) as of at the date of this Agreementagreement and any Settlement Date, (b) as of the date such instructions are given to the Agent or the date of such Terms Agreement, as the case may be, (c) as of each subsequent Registration Statement Amendment Date and Company Periodic Report Date and (d) as of each Applicable Time and Delivery Date with respect to such Shares, (ii) the accuracy of the statements of the Company and the Operating Partnership made in any certificates pursuant to the provisions hereof, and (iii) the performance by the Company and the Operating Partnership of their respective covenants and other its obligations hereunder and, if applicable, under such Terms Agreementto be performed hereunder, and to each of the following additional terms and conditions:
(a) The Company shall have filed the Prospectus and, in the case of any offering or sale of Shares pursuant to a Terms Agreement, the applicable preliminary prospectus with the Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act (without giving effect to Rule 424(b)(8)). The Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act in connection with the issuance and sale of the Shares, in each case used or referred to after the date hereof, within the applicable time periods prescribed for such filings under such Rule 433. No stop order suspending the effectiveness of the Registration Statement shall be in effect, and no proceedings for that purpose shall be pending before, or any post-effective amendment thereto or preventing or suspending the use of any preliminary prospectusthreatened by, the Commission; and the Agents shall have received a certificate, dated the date of this agreement and signed by an officer of the Company, to the effect that no such stop order is in effect and that no proceedings for such purpose are pending before, or to the knowledge of the Company threatened by, the Commission.
(b) At the date of this agreement the Agents shall have received from Worsham, Forsythe & Wooldridge, L.L.P., general counsel fox xxx Xompaxx, Xxxx & Priest LLP, of counsel to the Company, and Winthrop, Stimson, Putnam & Roberts, Counsel for the Agents, opxxxxxx in xxxxxxxtially the form and substance prescribed in Schedules I, II and III hereto (i) with such changes therein as may be agreed upon by the Company and the Agents, with the approval of Counsel for the Agents, and (ii) if the Prospectus relating to the Securities shall be supplemented or any Issuer Free Writing amended after the Prospectus shall have been issued and no proceeding filed with, or examination transmitted for such purpose shall have been instituted or threatened by the Commission; any request of filing to, the Commission for inclusion of additional information in the Registration Statement, any preliminary prospectus or the Prospectus or otherwise shall have been complied with; the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; the Company shall not have received from the Commission any notice pursuant to Rule 401(g)(2) 424 of the General Rules and Regulations under the Securities Act objecting (Rule 424), with changes therein to the use of the automatic shelf registration statement form; and FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements;
(b) The Agent shall not have discovered and disclosed to the Company that the Registration Statement, the Prospectus reflect such supplementation or the Disclosure Package, or any amendment or supplement thereto relating to the Shares, contains an untrue statement of a fact which, in the judgment of Sidley Austin LLP, counsel for the Agents, is material or omits to state a fact which, in the judgment of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleadingamendment.
(c) All corporate and partnership proceedings and other legal matters incident to At the authorization, form and validity date of the Sales Agreements, any Terms Agreementsthis agreement, the Shares, the Registration Statement, any preliminary prospectus, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement, any of the Other Sales Agreements and any Terms Agreements, and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Agents, and the Company shall have furnished to such counsel all documents and information that they may reasonably require for the purposes of enabling them to pass upon such matters, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements herein contained.
(d) The Agent shall have received (i) the opinion of Xxxxxxx Xxxxx LLP, Maryland counsel for the Company and the Operating Partnership, addressed to such Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, the form of which is attached hereto as Exhibit A and (ii) the opinion or opinions and letter or letters of Xxxxxx & Xxxxxxx LLP, special corporate and tax counsel for the Company, addressed to the Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, the form of which is attached hereto as Exhibit B.
(e) The Agent shall have received from Sidley Austin LLP, counsel for the Agent, such letter, addressed to the Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, with respect to the Registration Statement, the Prospectus and the Disclosure Package and other related matters as the Agent may reasonably request, and the Company shall have furnished to such counsel such documents and information as they may reasonably request to enable them to pass upon such matters.
(f) At the dates specified in Section 3(a)(xiv) and 3(a)(xxvii) hereof, the Agent Agents shall have received from Deloitte & Touche LLP, independent public accountants for the Company and the Operating Partnership, or other independent public accountants of nationally recognized standing for the Company and the Operating Partnership, LLP a letter, in form and substance satisfactory letter to the Agent, addressed to the Agent and dated the date of delivery thereof effect that (i) confirming that 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 adopted thereunder by the Commission and the Public Company Accounting Oversight Board (United States)thereunder, and (ii) statingin their opinion, the financial statements audited by them and included or incorporated by reference in the Prospectus comply as to form in all material respects with the applicable accounting requirements of the date Exchange Act and the published rules and regulations thereunder, (iii) on the basis of delivery thereof (or, with respect to matters involving changes a reading of the unaudited amounts of operating revenues and net income included or developments since the respective dates as of which specified financial information is given incorporated by reference in the Prospectus and the Disclosure Package and any amendments or supplements thereto, as of a date not more than three days prior to the date of delivery thereof)related financial statements from which these amounts were derived, the conclusions and findings of such firm with respect to the latest available unaudited financial statements of the Company, the Operating Partnership and any other properties, businesses or entities (including any pro forma financial statements) and certain financial information regarding minute books of the Company, and inquiries of officers of the Operating Partnership andCompany who have responsibility 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, if applicableand 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 prin- ciples 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, (C) for the twelve months ended as of the date of the latest available financial statements of the Company, there were any decreases in operating revenues or net income as compared with the comparable period of the preceding year, and (D) at a specified date not more than five days prior to the date of 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 declaration of a regular quarterly dividend or the acquisition of long-term debt for sinking fund purposes, or which are described in such letter, and (iv) they have compared the dollar amounts (or percentages or ratios derived from such dollar amounts) and other properties, businesses or entities contained financial information included or incorporated by reference in the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus (other than any electronic road show) Statement and the Prospectus as reasonably re- quested by the Agents (in each case to the extent that such dollar amounts, percentages and any amendments 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 supplements theretoare 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 customarily covered by accountants’ “comfort letters” otherwise specified in connection with public offerings. If such letter.
(d) Since the most recent dates as of which information is given in the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus Statement or the Prospectus contains or incorporates by reference the financial statements of any properties, businesses or entities whose independent public accountants are not the same as the Company’s independent public accountants, then, at the dates specified in Section 3(a)(xiv) and 3(a)(xxvii) hereof, the Agent shall have received from an independent public accountant of nationally recognized standing, a letter, in form and substance satisfactory to the Agent, addressed to the Agent and dated the date of delivery thereof, as to the matters set forth in the preceding sentence but modified to relate solely to such financial statements and any other financial information contained or incorporated by reference in the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus and any amendments or supplements thereto relating to such properties, businesses or entities, as the case may be.
(g) Since the commencement of the offering of the Shares under this Agreement or, if later, since the most recent Registration Statement Amendment Date or Company Periodic Report Date (whichever is later) and, in the case of the sale of Shares pursuant to a Terms Agreement to which the Agent is a party, since the date of such Terms Agreement:
(A) in the judgment of the Agent there shall not have occurred any Material Adverse Change;
(B) there shall not have been any change, increase or decrease specified material adverse change in the letter business, property or letters referred to financial condition of the Company and, since such dates, there shall not have been any material transaction entered into by the Company, in subsection (f) each case other than transactions in the ordinary course of business or transactions contemplated by the Registration Statement or Prospectus and at the date of this Section 5 or Section 3(a)(xiv) which isagreement the Agents shall have received a certificate to such effect, in the sole judgment signed by an officer of the Agent, so material Company.
(e) On and adverse as to make it impractical or inadvisable to proceed with the offering, sale or delivery of the Shares on the terms and in the manner contemplated in the Registration Statementeach Settlement Date, the Disclosure Package and the Prospectus; and
(C) Agents shall have received (i) no downgrading shall have occurred from Worsham, Forsythe & Wooldridge, L.L.P. their opinion xxxxirxxxx xxx mxxxxxx xxx forth in the rating accorded to any securities issued or guaranteed by the Company or any paragraph 5 of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; Schedule I hereto, and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to its rating of, any securities of or guaranteed by the Company or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading).
(i) The Company shall have furnished to the Agent a certificate of an officer in a form satisfactory of the Company to the Agent stating effect that the minimum gross sales price per share for resolutions of the Company's Board of Directors adopted at a meeting held June 14, 1995 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) All legal proceedings to be taken in connection with the issuance and sale of Shares pursuant to this Agreement and the other information specified in clauses (x) and (y) of Section 2(b) and, in the event of any change in such information, shall promptly provide the Agent with a new certificate of an officer setting forth such changed information (and the receipt of such certificate and any such new certificate Securities shall have been confirmed by the Agent (which confirmation may be by facsimile transmission or electronic mail), and (ii) on each date specified in Section 3(a)(xii) and 3(a)(xxvii), the Company shall have furnished to the Agent a certificate to the effect set forth in Exhibit C attached hereto (and including any changes proposed by the Company reasonably satisfactory to the Agent and its counsel and such additional matters as the Agent may reasonably request) of the Chairman of the Board, Chief Executive Officer, President or Chief Operating Officer of the Company and the Chief Financial Officer or Chief Accounting Officer of the Company (1) on behalf of the Company itself and (2) in its capacity as general partner of the Operating Partnership, on behalf of the Operating Partnership.
(i) Subsequent to the later of (i) the execution and delivery of this Agreement or (ii) the most recent Company Periodic Report Date or Registration Statement Amendment Date (whichever is later) and, in connection with any Terms Agreement, subsequent to the date of such Terms Agreement, there shall not have occurred any of the following: (i) trading or quotation in any securities issued or guaranteed by the Company or the Operating Partnership shall have been suspended or limited by the Commission or by the Exchange; (ii) trading in securities generally on the Exchange shall have been suspended or limited, or minimum or maximum prices shall have been generally established on any of such stock exchange by the Commission or FINRA; (iii) a general banking moratorium shall have been declared by federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States has occurred; or (iv) there shall have occurred any outbreak or escalation of national or international hostilities or any crisis or calamity, or any change in the United States or international financial markets, or any substantial change or development involving a prospective substantial change in United States’ or international political, financial or economic conditions, as in the judgment of the Agent is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares in the manner and on the terms described in the Prospectus and the Disclosure Package or to enforce contracts for the sale of securities.
(j) The Exchange shall have approved the Shares for listing, subject only to official notice of issuance, and satisfactory evidence of such action shall have been provided to the Agent.
(k) On or prior to each Delivery Date, the Company shall have furnished to the Agent such further certificates and documents as the Agent may reasonably request.
(l) In the case of any Terms Agreement, any additional conditions specified therein to the obligations of the Agent thereunder shall have been satisfied as of the dates required. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel Counsel for the AgentAgents. 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 any offering, sale, or any solicitation of purchase, 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 with respect to any Shares that the Company has instructed the Agent to sell as agent and the obligations of the Agent hereunder and under any Terms Agreement with respect to any Shares that the Agent has agreed to purchase or has the option to purchase as principal pursuant to such Terms Agreement are subject to (i) the accuracy of the representations and warranties of the Transaction Entities contained herein or in certificates of any officer of the Company and or the Operating Partnership contained herein, (a) as or any of the date of this Agreement, (b) as of the date such instructions are given to the Agent or the date of such Terms Agreement, as the case may be, (c) as of each subsequent Registration Statement Amendment Date and Company Periodic Report Date and (d) as of each Applicable Time and Delivery Date with respect to such Shares, (ii) the accuracy of the statements of the Company and the Operating Partnership made in any certificates Subsidiaries delivered pursuant to the provisions hereof, and (iii) hereof at each Representation Date to the performance by the Company and the Operating Partnership of their respective covenants and other obligations hereunder and, if applicable, under such Terms Agreementhereunder, and to each of the following additional terms and further conditions:
(a) Effectiveness of Registration Statement and Filing of Prospectus. The Company shall have filed the Prospectus and, in the case of any offering or sale of Shares pursuant to a Terms Agreement, the applicable preliminary prospectus with the Commission (including the information required by Rule 430B under Prospectus on or prior to the Securities Act) date of this Agreement and any subsequent Base Prospectus or Prospectus Supplement prior to any Applicable Time and related Settlement Date, as applicable, in each case in the manner and within the time period required by Rule 424(b) under the Securities Act (without giving effect to Rule 424(b)(8)). The Company shall have complied with all filing requirements applicable to any , and each Issuer Free Writing Prospectus and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act in connection with the issuance and sale of the SharesProspectus, if any, in each case used or referred to after the date hereof, manner and within the applicable time periods prescribed for such filings under such period required by Rule 433. No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or preventing or suspending the use of any preliminary prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have has been issued and under the 1933 Act, no proceeding or examination for such purpose shall have been instituted or threatened by the Commission; any request notice of objection of the Commission for inclusion of additional information in the Registration Statement, any preliminary prospectus or the Prospectus or otherwise shall have been complied with; the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; the Company shall not have received from the Commission any notice thereto pursuant to Rule 401(g)(2) of has been received by the Securities Act objecting to Company, no order preventing or suspending the use of the automatic shelf registration statement form; and FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements;
(b) The Agent shall not have discovered and disclosed to the Company that the Registration Statement, any preliminary prospectus or the Prospectus or the Disclosure Package, or any amendment or supplement thereto relating to the Shares, contains an untrue statement of a fact which, in the judgment of Sidley Austin LLP, counsel has been issued and no proceedings for the Agents, is material or omits to state a fact which, in the judgment of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate and partnership proceedings and other legal matters incident to the authorization, form and validity of the Sales Agreements, any Terms Agreements, the Shares, the Registration Statement, any preliminary prospectus, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement, any of the Other Sales Agreements and any Terms Agreements, and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Agents, and the Company shall those purposes have furnished to such counsel all documents and information that they may reasonably require for the purposes of enabling them to pass upon such matters, been instituted or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements herein contained.
(d) The Agent shall have received (i) the opinion of Xxxxxxx Xxxxx LLP, Maryland counsel for the Company and the Operating Partnership, addressed to such Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, the form of which is attached hereto as Exhibit A and (ii) the opinion or opinions and letter or letters of Xxxxxx & Xxxxxxx LLP, special corporate and tax counsel for the Company, addressed to the Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, the form of which is attached hereto as Exhibit B.
(e) The Agent shall have received from Sidley Austin LLP, counsel for the Agent, such letter, addressed to the Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, with respect to the Registration Statement, the Prospectus and the Disclosure Package and other related matters as the Agent may reasonably request, and the Company shall have furnished to such counsel such documents and information as they may reasonably request to enable them to pass upon such matters.
(f) At the dates specified in Section 3(a)(xiv) and 3(a)(xxvii) hereof, the Agent shall have received from Deloitte & Touche LLP, independent public accountants for the Company and the Operating Partnership, or other independent public accountants of nationally recognized standing for the Company and the Operating Partnership, a letter, in form and substance satisfactory to the Agent, addressed to the Agent and dated the date of delivery thereof (i) confirming that they are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted thereunder by the Commission and the Public Company Accounting Oversight Board (United States), and (ii) stating, as of the date of delivery thereof (pending or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus and the Disclosure Package and any amendments or supplements thereto, as of a date not more than three days prior to the date of delivery thereof), the conclusions and findings of such firm with respect to the financial statements of the Company, the Operating Partnership and any other properties, businesses or entities (including any pro forma financial statements) and certain financial information regarding the Company, the Operating Partnership and, if applicable, such other properties, businesses or entities contained or incorporated by reference in the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus (other than any electronic road show) and the Prospectus and any amendments or supplements thereto, as customarily covered by accountants’ “comfort letters” in connection with public offerings. If the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus contains or incorporates by reference the financial statements of any properties, businesses or entities whose independent public accountants are not the same as the Company’s independent public accountantsknowledge, then, at the dates specified in Section 3(a)(xiv) and 3(a)(xxvii) hereof, the Agent shall have received from an independent public accountant of nationally recognized standing, a letter, in form and substance satisfactory to the Agent, addressed to the Agent and dated the date of delivery thereof, as to the matters set forth in the preceding sentence but modified to relate solely to such financial statements and any other financial information contained or incorporated by reference in the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus and any amendments or supplements thereto relating to such properties, businesses or entities, as the case may be.
(g) Since the commencement of the offering of the Shares under this Agreement or, if later, since the most recent Registration Statement Amendment Date or Company Periodic Report Date (whichever is later) and, in the case of the sale of Shares pursuant to a Terms Agreement to which the Agent is a party, since the date of such Terms Agreement:
(A) in the judgment of the Agent there shall not have occurred any Material Adverse Change;
(B) there shall not have been any change, increase or decrease specified in the letter or letters referred to in subsection (f) of this Section 5 or Section 3(a)(xiv) which is, in the sole judgment of the Agent, so material and adverse as to make it impractical or inadvisable to proceed with the offering, sale or delivery of the Shares on the terms and in the manner contemplated in the Registration Statement, the Disclosure Package and the Prospectus; and
(C) (i) no downgrading shall have occurred in the rating accorded to any securities issued or guaranteed by the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to its rating of, any securities of or guaranteed by the Company or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading).
(i) contemplated. The Company shall have furnished complied with any and all requests for additional information on the part of the Commission to the Agent a certificate reasonable satisfaction of an officer in a form satisfactory to the Agent stating the minimum gross sales price per share for sale of Shares pursuant to this Agreement and the other information specified in clauses (x) and (y) of Section 2(b) and, in the event of any change in such information, shall promptly provide the Agent with a new certificate of an officer setting forth such changed information (and the receipt of such certificate and any such new certificate shall have been confirmed by the Agent (which confirmation may be by facsimile transmission or electronic mail), and (ii) on each date specified in Section 3(a)(xii) and 3(a)(xxvii), the Company shall have furnished to the Agent a certificate to the effect set forth in Exhibit C attached hereto (and including any changes proposed by the Company reasonably satisfactory to the Agent and its counsel and such additional matters as the Agent may reasonably request) of the Chairman of the Board, Chief Executive Officer, President or Chief Operating Officer of the Company and the Chief Financial Officer or Chief Accounting Officer of the Company (1) on behalf of the Company itself and (2) in its capacity as general partner of the Operating Partnership, on behalf of the Operating Partnership.
(i) Subsequent to the later of (i) the execution and delivery of this Agreement or (ii) the most recent Company Periodic Report Date or Registration Statement Amendment Date (whichever is later) and, in connection with any Terms Agreement, subsequent to the date of such Terms Agreement, there shall not have occurred any of the following: (i) trading or quotation in any securities issued or guaranteed by the Company or the Operating Partnership shall have been suspended or limited by the Commission or by the Exchange; (ii) trading in securities generally on the Exchange shall have been suspended or limited, or minimum or maximum prices shall have been generally established on any of such stock exchange by the Commission or FINRA; (iii) a general banking moratorium shall have been declared by federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States has occurred; or (iv) there shall have occurred any outbreak or escalation of national or international hostilities or any crisis or calamity, or any change in the United States or international financial markets, or any substantial change or development involving a prospective substantial change in United States’ or international political, financial or economic conditions, as in the judgment of the Agent is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares in the manner and on the terms described in the Prospectus and the Disclosure Package or to enforce contracts for the sale of securities.
(j) The Exchange shall have approved the Shares for listing, subject only to official notice of issuance, and satisfactory evidence of such action shall have been provided to the Agent.
(k) On or prior to each Delivery Date, the Company shall have furnished to the Agent such further certificates and documents as the Agent may reasonably request.
(l) In the case of any Terms Agreement, any additional conditions specified therein to the obligations of the Agent thereunder shall have been satisfied as of the dates required. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Agent.
Appears in 1 contract
Samples: Atm Equity Offering Sales Agreement
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 with respect to any Shares that the Company has instructed the Agent to sell as agent and the obligations of the Agent hereunder and under any Terms Agreement with respect to any Shares that the Agent has agreed to purchase or has the option to purchase as principal pursuant to such Terms Agreement are subject to (i) the accuracy of the representations and warranties of the Company and the Operating Partnership Bank herein contained herein, (a) as of the date of this Agreementhereof and the Closing Time, (b) as of the date such instructions are given to the Agent or the date of such Terms Agreement, as the case may be, (c) as of each subsequent Registration Statement Amendment Date and Company Periodic Report Date and (d) as of each Applicable Time and Delivery Date with respect to such Shares, (ii) the accuracy of the statements of officers and directors of the Company and the Operating Partnership Bank made in any certificates pursuant to the provisions hereof, and (iii) to the performance by the Company and the Operating Partnership Bank of their respective covenants and other obligations hereunder and, if applicable, under such Terms Agreementhereunder, and to each of the following additional terms and further conditions:
(a) The Company shall have filed the Prospectus and, in the case of any offering or sale of Shares pursuant to a Terms Agreement, the applicable preliminary prospectus with the Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act (without giving effect to Rule 424(b)(8)). The Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act in connection with the issuance and sale of the Shares, in each case used or referred to after the date hereof, within the applicable time periods prescribed for such filings under such Rule 433. No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or any post-effective amendment thereto proceedings therefor initiated or preventing or threatened by the Commission, no order suspending the Offerings or authorization for final use of any preliminary prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding or examination for such purpose shall have been instituted proceedings therefor initiated or threatened by the Commission; any request OTS and no order suspending the sale of the Commission for inclusion of additional information Securities in the Registration Statement, any preliminary prospectus or the Prospectus or otherwise jurisdiction shall have been complied with; the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; the Company shall not have received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to the use of the automatic shelf registration statement form; and FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements;issued.
(b) The Agent shall not have discovered and disclosed to the Company that the Registration Statement, the Prospectus or the Disclosure Package, or any amendment or supplement thereto relating to the Shares, contains an untrue statement of a fact which, in the judgment of Sidley Austin LLP, counsel for the Agents, is material or omits to state a fact which, in the judgment of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate and partnership proceedings and other legal matters incident to the authorization, form and validity of the Sales Agreements, any Terms Agreements, the Shares, the Registration Statement, any preliminary prospectus, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement, any of the Other Sales Agreements and any Terms Agreements, and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Agents, and the Company shall have furnished to such counsel all documents and information that they may reasonably require for the purposes of enabling them to pass upon such matters, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements herein contained.
(d) The Agent shall have received (i) the opinion of Xxxxxxx Xxxxx LLP, Maryland counsel for the Company and the Operating Partnership, addressed to such Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, the form of which is attached hereto as Exhibit A and (ii) the opinion or opinions and letter or letters of Xxxxxx & Xxxxxxx LLP, special corporate and tax counsel for the Company, addressed to the Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, the form of which is attached hereto as Exhibit B.
(e) The Agent shall have received from Sidley Austin LLP, counsel for the Agent, such letter, addressed to the Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, with respect to the Registration Statement, the Prospectus and the Disclosure Package and other related matters as the Agent may reasonably request, and the Company shall have furnished to such counsel such documents and information as they may reasonably request to enable them to pass upon such matters.
(f) At the dates specified in Section 3(a)(xiv) and 3(a)(xxvii) hereofClosing Time, the Agent shall have received from Deloitte received:
(1) The favorable opinion, dated as of Closing Time, of Malizia Spidi & Touche LLPFisch, independent public accountants for PC, counsxx xxx the Company and Compaxx xxd the Operating Partnership, or other independent public accountants of nationally recognized standing for the Company and the Operating Partnership, a letterBank, in form and substance satisfactory to counsel for the Agent, addressed to the Agent and dated the date of delivery thereof effect that:
(i) confirming The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Pennsylvania.
(ii) The Company has full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and to enter into and perform its obligations under this Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact business and is in good standing in the State of New Jersey and in each other jurisdiction in which such qualification is required whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations, business affairs or prospects of the Company, the Bank and the Subsidiary, considered as one enterprise. The Company will be registered as a savings and loan holding company under HOLA within 90 days of the Closing Time.
(iv) Upon consummation of the Conversion, the authorized, issued and outstanding capital stock of the Company will be as set forth in the Prospectus under "Capitalization" and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Time.
(v) The Securities have been duly and validly authorized for issuance and sale and, when issued and delivered by the Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be duly and validly issued and fully paid and non-assessable.
(vi) The issuance of the Securities is not subject to preemptive or other similar rights arising by operation of law or, to the best of their knowledge and information, otherwise.
(vii) Upon completion of the Conversion, the issuance of the Securities will be in compliance with all conditions imposed upon the Company and the Bank, by the OTS under the terms of their written approval or notice of intention not to object, as applicable.
(viii) The Bank has been at all times since 1995 and prior to the Closing Time duly organized, and is validly existing and in good standing under the laws of the United States of America as a federally chartered savings bank of mutual form, and, at Closing Time, has become duly organized, validly existing and in good standing under the laws of the United States of America as a federally chartered savings bank of stock form, in both instances with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus and to enter into and perform its obligations under this Agreement; and the Bank is duly qualified as a foreign corporation in each jurisdiction in which the failure to so qualify would have a material adverse effect upon the financial condition, results of operations, business affairs or prospects of the Bank.
(ix) The Bank is a member in good standing of the Federal Home Loan Bank of Pittsburgh and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(x) The Subsidiary is the only direct or indirect subsidiary of the Bank. The Subsidiary of the Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, and the Subsidiary has full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which the failure to so qualify would have a material adverse effect upon the financial condition, results of operations, business affairs or prospects of the Company, the Bank and the Subsidiary, taken as a whole; the activities of the Subsidiary are permitted to subsidiaries of a savings and loan holding company and of a federally chartered savings bank by the rules, regulations, resolutions and practices of the OTS; all of the issued and outstanding capital stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and is owned by the Bank, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity.
(xi) Upon consummation of the Conversion, all of the issued and outstanding capital stock of the Bank when issued and delivered pursuant to the Plan against payment of consideration calculated as set forth in the Plan and set forth in the Prospectus, will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity.
(xii) The OTS has duly approved the Holding Company Application and the Conversion Application; such approvals remain in full force and effect and no action is pending, or to the best of such counsel's knowledge after due inquiry, threatened respecting the Holding Company Application or the Conversion Application or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion Application comply as to form with the applicable requirements of the OTS, includes all documents required to be filed as exhibits thereto, and is, to the best of such counsel's knowledge after due inquiry, truthful, accurate and complete; and the Company is duly authorized to become a savings and loan holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank to be issued pursuant to the Plan.
(xiii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, (A) have been duly and validly authorized by all necessary action on the part of each of the Company and the Bank, and this Agreement constitutes the legal, valid and binding agreement of each of the Company and the Bank, enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that they are independent such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws and the availability of equitable remedies); (B) will not result in any violation of the provisions of the charter or by-laws of the Company, the Bank or the Subsidiary; and, (C) will not conflict with or constitute a breach of, or default under, and no event has occurred which, with notice or lapse of time or both, would constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance, that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations, business affairs or prospects of the Company, the Bank and the Subsidiary considered as one enterprise, upon any property or assets of the Company, the Bank or the Subsidiary pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the Bank or the Subsidiary is a party or by which any of them may be bound, or to which any of the property or assets of the Company, the Bank or the Subsidiary is subject.
(xiv) The Prospectus has been duly authorized by the OTS for final use pursuant to the Conversion Regulations and no action is pending, or to the best of such counsel's knowledge after due inquiry, is threatened, by the OTS to revoke such authorization.
(xv) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act or, to the best of such counsel's knowledge after due inquiry, proceedings therefor initiated or threatened by the Commission.
(xvi) No further approval, authorization, consent or other order of any public accountants within board or body is required in connection with the meaning execution and delivery of this Agreement, the issuance of the Securities and the consummation of the Conversion, except as may be required under the securities or Blue Sky laws of various jurisdictions as to which no opinion need be rendered.
(xvii) At the time the Registration Statement became effective, the Registration Statement (other than the financial statements and statistical data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act and the applicable rules and regulations adopted thereunder by the Commission Securities Act Regulations and the Public Company Accounting Oversight Board Conversion Regulations.
(United States)xviii) The Common Stock conforms to the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(iixix) stating, as of the date of delivery thereof (or, with respect to matters involving changes There are no legal or developments since the respective dates as of which specified financial information is given in the Prospectus and the Disclosure Package and any amendments governmental proceedings pending or supplements thereto, as of a date not more than three days prior to the date of delivery thereof), the conclusions and findings of such firm with respect to the financial statements of threatened against or affecting the Company, the Operating Partnership Bank or the Subsidiary which are required, individually or in the aggregate, to be disclosed in the Registration Statement and any Prospectus, other propertiesthan those disclosed therein, businesses and all pending legal or entities (including any pro forma financial statements) and certain financial information regarding governmental proceedings to which the Company, the Operating Partnership and, if applicable, such other properties, businesses Bank or entities contained the Subsidiary is a party or incorporated by reference to which any of their property is subject which are not described in the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus (other than any electronic road show) and the Prospectus and any amendments or supplements thereto, as customarily covered by accountants’ “comfort letters” in connection with public offerings. If the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus contains or incorporates by reference the financial statements of any properties, businesses or entities whose independent public accountants are not the same as the Company’s independent public accountants, then, at the dates specified in Section 3(a)(xiv) and 3(a)(xxvii) hereof, the Agent shall have received from an independent public accountant of nationally recognized standing, a letter, in form and substance satisfactory including ordinary routine litigation incidental to the Agentbusiness, addressed to the Agent and dated the date of delivery thereofare, as to the matters set forth considered in the preceding sentence but modified to relate solely to such financial statements and any other financial information contained or incorporated by reference in the Registration Statementaggregate, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus and any amendments or supplements thereto relating to such properties, businesses or entities, as the case may benot material.
(g) Since the commencement of the offering of the Shares under this Agreement or, if later, since the most recent Registration Statement Amendment Date or Company Periodic Report Date (whichever is later) and, in the case of the sale of Shares pursuant to a Terms Agreement to which the Agent is a party, since the date of such Terms Agreement:
(A) in the judgment of the Agent there shall not have occurred any Material Adverse Change;
(B) there shall not have been any change, increase or decrease specified in the letter or letters referred to in subsection (f) of this Section 5 or Section 3(a)(xiv) which is, in the sole judgment of the Agent, so material and adverse as to make it impractical or inadvisable to proceed with the offering, sale or delivery of the Shares on the terms and in the manner contemplated in the Registration Statement, the Disclosure Package and the Prospectus; and
(C) (i) no downgrading shall have occurred in the rating accorded to any securities issued or guaranteed by the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to its rating of, any securities of or guaranteed by the Company or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading).
(ixx) The Company shall have furnished to the Agent a certificate of an officer in a form satisfactory to the Agent stating the minimum gross sales price per share for sale of Shares pursuant to this Agreement and the other information specified in clauses (x) and (y) of Section 2(b) and, in the event of any change in such information, shall promptly provide the Agent with a new certificate of an officer setting forth such changed information (and the receipt of such certificate and any such new certificate shall have been confirmed by the Agent (which confirmation may be by facsimile transmission or electronic mail), and (ii) on each date specified in Section 3(a)(xii) and 3(a)(xxvii), the Company shall have furnished to the Agent a certificate to the effect set forth in Exhibit C attached hereto (and including any changes proposed by the Company reasonably satisfactory to the Agent and its counsel and such additional matters as the Agent may reasonably request) of the Chairman of the Board, Chief Executive Officer, President or Chief Operating Officer of the Company and the Chief Financial Officer or Chief Accounting Officer of the Company (1) on behalf of the Company itself and (2) in its capacity as general partner of the Operating Partnership, on behalf of the Operating Partnership.
(i) Subsequent to the later of (i) the execution and delivery of this Agreement or (ii) the most recent Company Periodic Report Date or Registration Statement Amendment Date (whichever is later) and, in connection with any Terms Agreement, subsequent to the date of such Terms Agreement, there shall not have occurred any of the following: (i) trading or quotation in any securities issued or guaranteed by the Company or the Operating Partnership shall have been suspended or limited by the Commission or by the Exchange; (ii) trading in securities generally on the Exchange shall have been suspended or limited, or minimum or maximum prices shall have been generally established on any of such stock exchange by the Commission or FINRA; (iii) a general banking moratorium shall have been declared by federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States has occurred; or (iv) there shall have occurred any outbreak or escalation of national or international hostilities or any crisis or calamity, or any change in the United States or international financial markets, or any substantial change or development involving a prospective substantial change in United States’ or international political, financial or economic conditions, as in the judgment of the Agent is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares in the manner and on the terms described in the Prospectus under "Risk Factors - We Operate in a Highly Regulated Environment and the Disclosure Package or to enforce contracts for the sale May Be Adversely Affected by Changes in Laws and Regulations," "Dividend Policy," "Business of securities.
(j) The Exchange shall have approved the Shares for listing, subject only to official notice of issuance, and satisfactory evidence of such action shall have been provided to the Agent.
(k) On or prior to each Delivery Date, the Company shall have furnished to the Agent such further certificates and documents as the Agent may reasonably request.
(l) In the case of any Terms Agreement, any additional conditions specified therein to the obligations of the Agent thereunder shall have been satisfied as of the dates required. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Agent.St. Edmond's Federal Savings Bank- Legal Proceedings",
Appears in 1 contract
Samples: Agency Agreement (Se Financial Corp)
Conditions of Agent’s Obligations. The obligations of the Agent hereunder with respect hereunder, as to any Shares that the Company has instructed the Agent Securities to sell as agent and the obligations of the Agent hereunder and under any Terms Agreement with respect to any Shares that the Agent has agreed to purchase or has the option to purchase as principal pursuant to such Terms Agreement be delivered at each Closing Time, are subject to (i) the accuracy of the representations and warranties of the Company and the Operating Partnership contained herein, (a) as of the date of this Agreement, (b) as of the date such instructions are given to the Agent or the date of such Terms Agreement, as the case may be, (c) as of each subsequent Registration Statement Amendment Date and Company Periodic Report Date and (d) as of each Applicable Time and Delivery Date with respect to such Shares, (ii) the accuracy of the statements of the Company and the Operating Partnership made in any certificates pursuant to the provisions hereof, and (iii) the performance by the Company and the Operating Partnership of their respective covenants and other obligations hereunder and, if applicable, under such Terms Agreement, and to each of the following additional terms and conditions:
(a) The Company shall have Registration Statement has been filed with the Prospectus and, in the case of any offering or sale of Shares SEC pursuant to a Terms Agreement, the applicable preliminary prospectus with the Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act and in accordance with Section 3(a) hereof (without giving effect to or a post-effective amendment has been filed and declared effective in accordance with the requirements of Rule 424(b)(8)430A). The Company shall have complied with all filing requirements applicable to any Any Issuer Represented Free Writing Prospectus and any other material that is required to be filed by with the Company SEC pursuant to Rule 433(d) under the Securities Act in connection with the issuance and sale of the Shares, in each case used or referred to after the date hereof, 433 has been filed within the applicable time periods period prescribed for such filings under such Rule 433filing by applicable rules and regulations. No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or preventing or suspending the use of any preliminary prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have part thereof has been issued and no proceeding or examination for such that purpose shall have has been instituted initiated or threatened by the Commission; SEC or any request state securities regulator, and all requests for additional information on the part of the Commission for inclusion SEC or any state securities regulator have complied with to the Agent’s reasonable satisfaction;
(b) The representations and warranties of additional information in the Registration Statement, any preliminary prospectus or the Prospectus or otherwise shall have been complied with; the Commission shall not have notified the Company of any objection set forth in Section 1 are true and correct;
(c) The Company has performed its obligations and agreements under this Agreement to be performed by it;
(d) Sxxxxx Xxxxxxx (US) LLP, counsel for the Company, has furnished to the use of the Agent their written opinion, dated such Closing Time, in form of the Registration Statement or any post-effective amendment thereto; the Company shall not have received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting and substance satisfactory to the use of Agent, to the automatic shelf registration statement form; effect set forth in Annex I hereto and to such further effect as counsel to the Agent may reasonably request;
(e) FINRA shall have has raised no objection to the fairness and reasonableness of the underwriting terms and arrangements;
(bf) The Agent shall not have discovered and disclosed On the date of the Prospectus at a time prior to the Company that the Registration Statement, the Prospectus or the Disclosure Package, or any amendment or supplement thereto relating to the Shares, contains an untrue statement execution of a fact which, in the judgment of Sidley Austin LLP, counsel for the Agents, is material or omits to state a fact which, in the judgment of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate and partnership proceedings and other legal matters incident to the authorization, form and validity of the Sales Agreements, any Terms Agreements, the Shares, the Registration Statement, any preliminary prospectus, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement, any of at 9:30 a.m., Eastern Time, on the Other Sales Agreements and any Terms Agreements, and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Agents, and the Company shall have furnished to such counsel all documents and information that they may reasonably require for the purposes of enabling them to pass upon such matters, or in order to evidence the accuracy effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of the representations this Agreement and warrantiesalso at each Closing Time, or the satisfaction of any of the conditions or agreements herein contained.
(d) The Agent shall have received (i) the opinion of Xxxxxxx Xxxxx LLP, Maryland counsel for the Company and the Operating Partnership, addressed to such Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, the form of which is attached hereto as Exhibit A and (ii) the opinion or opinions and letter or letters of Xxxxxx & Xxxxxxx LLP, special corporate and tax counsel for the Company, addressed Cxxxx Hxxxxxx LLP has furnished to the Agent and delivered and a letter or letters, dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, the form respective dates of which is attached hereto as Exhibit B.
(e) The Agent shall have received from Sidley Austin LLP, counsel for the Agent, such letter, addressed to the Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, with respect to the Registration Statement, the Prospectus and the Disclosure Package and other related matters as the Agent may reasonably request, and the Company shall have furnished to such counsel such documents and information as they may reasonably request to enable them to pass upon such matters.
(f) At the dates specified in Section 3(a)(xiv) and 3(a)(xxvii) hereof, the Agent shall have received from Deloitte & Touche LLP, independent public accountants for the Company and the Operating Partnership, or other independent public accountants of nationally recognized standing for the Company and the Operating Partnership, a letterdelivery thereof, in form and substance satisfactory to the Agent, addressed to the Agent containing statements and dated the date of delivery thereof (i) confirming that they are independent public accountants within the meaning information of the Securities Act and the applicable rules and regulations adopted thereunder by the Commission and the Public Company Accounting Oversight Board (United States), and (ii) stating, as of the date of delivery thereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given type ordinarily included in the Prospectus and the Disclosure Package and any amendments or supplements thereto, as of a date not more than three days prior to the date of delivery thereof), the conclusions and findings of such firm accountant “comfort letters” with respect to the financial statements of the Company, the Operating Partnership and any other properties, businesses or entities (including any pro forma financial statements) Company and certain financial information regarding included in the Prospectus, and to the effect set forth in Annex II hereto;
(i) Neither the Company, the Operating Partnership andnor its subsidiary, if applicable, such other properties, businesses or entities contained or incorporated by reference in the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus (other than any electronic road show) and the Prospectus and any amendments or supplements thereto, as customarily covered by accountants’ “comfort letters” in connection with public offerings. If the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus contains or incorporates by reference the financial statements of any properties, businesses or entities whose independent public accountants are not the same as the Company’s independent public accountants, then, at the dates specified in Section 3(a)(xiv) and 3(a)(xxvii) hereof, the Agent shall have received from an independent public accountant of nationally recognized standing, a letter, in form and substance satisfactory to the Agent, addressed to the Agent and dated the date of delivery thereof, as to the matters set forth in the preceding sentence but modified to relate solely to such financial statements and any other financial information contained or incorporated by reference in the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus and any amendments or supplements thereto relating to such properties, businesses or entities, as the case may be.
(g) Since the commencement of the offering of the Shares under this Agreement or, if later, since the most recent Registration Statement Amendment Date or Company Periodic Report Date (whichever is later) and, in the case of the sale of Shares pursuant to a Terms Agreement to which the Agent is a party, has sustained since the date of such Terms Agreement:
(A) the latest audited financial statements included in each of the General Disclosure Package and the Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in 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 has not 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 the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the reasonable judgment of the Agent there shall not have occurred any Material Adverse Change;
(B) there shall not have been any change, increase or decrease specified in the letter or letters referred to in subsection (f) of this Section 5 or Section 3(a)(xiv) which is, in the sole judgment of the Agent, so material and adverse as to make it impractical impracticable or inadvisable to proceed with the offering, sale Offering or the delivery of the Shares Securities being delivered at such Closing Time on the terms and in the manner contemplated in the Registration Statement, the Disclosure Package and the Prospectus; and;
(Ch) (i) no downgrading shall have occurred in the rating accorded to any securities issued On or guaranteed by the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to its rating of, any securities of or guaranteed by the Company or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading).
(i) The Company shall have furnished to the Agent a certificate of an officer in a form satisfactory to the Agent stating the minimum gross sales price per share for sale of Shares pursuant to this Agreement and the other information specified in clauses (x) and (y) of Section 2(b) and, in the event of any change in such information, shall promptly provide the Agent with a new certificate of an officer setting forth such changed information (and the receipt of such certificate and any such new certificate shall have been confirmed by the Agent (which confirmation may be by facsimile transmission or electronic mail), and (ii) on each date specified in Section 3(a)(xii) and 3(a)(xxvii), the Company shall have furnished to the Agent a certificate to the effect set forth in Exhibit C attached hereto (and including any changes proposed by the Company reasonably satisfactory to the Agent and its counsel and such additional matters as the Agent may reasonably request) of the Chairman of the Board, Chief Executive Officer, President or Chief Operating Officer of the Company and the Chief Financial Officer or Chief Accounting Officer of the Company (1) on behalf of the Company itself and (2) in its capacity as general partner of the Operating Partnership, on behalf of the Operating Partnership.
(i) Subsequent to the later of (i) the execution and delivery of this Agreement or (ii) the most recent Company Periodic Report Date or Registration Statement Amendment Date (whichever is later) and, in connection with any Terms Agreement, subsequent to after the date of such Terms Agreementhereof, there shall has not have occurred any of the following: (i) trading a suspension or quotation material limitation in any securities issued or guaranteed by the Company or the Operating Partnership shall have been suspended or limited by the Commission or by the Exchange; (ii) trading in securities generally on the New York Stock Exchange shall have been suspended or limited, on the NASDAQ Capital Market; (ii) a suspension or minimum or maximum prices shall have been generally established material limitation in trading in the Company’s securities on any of such stock exchange by the Commission or FINRAOTCQB; (iii) a general moratorium on commercial banking moratorium shall have been activities declared by federal either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States has occurredOhio state authorities; or (iv) there shall have occurred any the outbreak or escalation of national or international hostilities or any crisis the declaration of a national emergency or calamitywar or a change in general economic, political or any change 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 or international financial marketsare such), or any substantial change or development involving a prospective substantial change in United States’ other national or international politicalcalamity or crisis, financial or economic conditions, as if the effect of any such event specified in this clause (iv) in the reasonable judgment of the Agent is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale public offering or the delivery of the Shares Securities being delivered at such Closing Time on the terms and in the manner and on the terms described contemplated in the Prospectus and the Disclosure Package or to enforce contracts for the sale of securities.Prospectus;
(ji) The Exchange shall have approved the Shares for listing, subject only to official notice of issuance, Company has obtained and satisfactory evidence of such action shall have been provided to the Agent.
(k) On or prior to each Delivery Date, the Company shall have furnished delivered to the Agent such further certificates executed copies of a “lock up” agreement from each of the directors and documents as officers of the Agent may reasonably request.
(l) In the case of any Terms AgreementCompany, any additional conditions specified therein substantially to the obligations of the Agent thereunder shall have been satisfied as of the dates required. All opinionseffect set forth in Section 3(g) hereof, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Agent;
(j) The Company has complied with the provisions of Section 3(e) hereof with respect to the furnishing of prospectuses; and
(k) The Company has 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 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) through (g) of this Section and as to such other matters as the Agent may reasonably request. If any condition specified in this Section 5 is not satisfied when and as required to be satisfied, or in the Agent’s reasonable judgment is unable to be satisfied, this Agreement may be terminated by the Agent in its sole discretion by notice to the Company at any time on or prior to the applicable Closing Time. In the alternative, if the Agent so elects, it may waive any such conditions which have not been fulfilled or may extend the time of their fulfillment.
Appears in 1 contract
Conditions of Agent’s Obligations. The obligations of the Agent hereunder with respect to any Shares that the Company has instructed the Agent to sell as agent and the obligations of the Agent hereunder and under any Terms Agreement with respect to any Shares that the Agent has agreed to purchase or has the option to purchase as principal pursuant to such Terms Agreement are subject to (i) the accuracy accuracy, when made and on the date of this Agreement, each Registration Statement Amendment Date, each Company Periodic Report Date, each Supplemental Request Date, each Applicable Time and each Delivery Date, of the representations and warranties of the Company and the Operating Partnership contained hereinherein as though made on such date, (a) as of the date of this Agreement, (b) as of the date such instructions are given to the Agent or the date of such Terms Agreement, as the case may be, (c) as of each subsequent Registration Statement Amendment Date and Company Periodic Report Date and (d) as of each Applicable Time and Delivery Date with respect to such Shares, (ii) the accuracy of the statements of the Company and the Operating Partnership made in any certificates pursuant to the provisions hereof, and (iii) the performance by the Company and the Operating Partnership of their respective covenants and other its obligations hereunder and, if applicable, under such Terms Agreementhereunder, and to each of the following additional terms and conditions:
(a) The Company Prospectus shall have been filed the Prospectus and, in the case of any offering or sale of Shares pursuant to a Terms Agreement, the applicable preliminary prospectus with the Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by pursuant to Rule 424(b) under the Securities Act on or prior to the date hereof and the Company shall have complied with all other requirements applicable to the Prospectus or any supplement thereto under Rule 424(b) (without giving effect to Rule 424(b)(8)). The Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act in connection with the issuance and sale of the Shares, in each case used or referred to after the date hereof, within the applicable time periods prescribed for such filings under such Rule 433. No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or preventing or suspending the use of any preliminary prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding or examination for such purpose shall have been instituted initiated or threatened by the Commission; , any request of the Commission for inclusion of additional information in the Registration Statement, any preliminary prospectus Statement or the Prospectus (including, without limitation, in any document incorporated by reference therein) or otherwise shall have been complied with; , and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; the Company shall not have received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to the use of the automatic shelf registration statement form; and FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements;.
(b) The Agent shall not have discovered and disclosed to the Company that the Registration StatementSkadden, the Prospectus or the Disclosure PackageArps, or any amendment or supplement thereto relating to the SharesSlate, contains an untrue statement of a fact which, in the judgment of Sidley Austin LLP, counsel for the Agents, is material or omits to state a fact which, in the judgment of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate and partnership proceedings and other legal matters incident to the authorization, form and validity of the Sales Agreements, any Terms Agreements, the Shares, the Registration Statement, any preliminary prospectus, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement, any of the Other Sales Agreements and any Terms Agreements, and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Agents, and the Company Xxxxxxx & Xxxx LLP shall have furnished to such the Agent its written opinion and letter, as counsel all documents and information that they may reasonably require for the purposes of enabling them to pass upon such matters, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements herein contained.
(d) The Agent shall have received (i) the opinion of Xxxxxxx Xxxxx LLP, Maryland counsel for the Company and the Operating Partnership, addressed to such Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, the form of which is attached hereto as Exhibit A and (ii) the opinion or opinions and letter or letters of Xxxxxx & Xxxxxxx LLP, special corporate and tax counsel for the Company, addressed to the Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, in form and substance reasonably satisfactory to the form of which is Agent, substantially in the forms attached hereto as Exhibit B.A-0, Xxxxxxx X-0 xnd Exhibit A-3.
(ec) The Agent Xxxxx Xxxxx, Associate General Counsel of the Company shall have received from Sidley Austin LLP, counsel for the Agent, such letter, furnished her written opinion addressed to the Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, with respect in form and substance reasonably satisfactory to the Registration StatementAgent, substantially in the Prospectus and the Disclosure Package and other related matters form attached hereto as the Agent may reasonably request, and the Company shall have furnished to such counsel such documents and information as they may reasonably request to enable them to pass upon such mattersExhibit A-4.
(fd) At the dates specified in Section 3(a)(xiv) and 3(a)(xxvii) hereof, the Agent shall have received from Deloitte & Touche LLP, independent public accountants for the Company and the Operating Partnership, or other independent public accountants of nationally recognized standing for the Company and the Operating Partnership, KPMG LLP a letter, in form and substance reasonably satisfactory to the Agent, addressed to the Agent and dated the date of delivery thereof (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable rules and regulations adopted thereunder by requirements relating to the Commission and qualification of accountants under Rule 2-01 of Regulation S-X of the Public Company Accounting Oversight Board (United States)Commission, and (ii) stating, as of the date of the date of delivery thereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus and or the Pricing Disclosure Package and any amendments or supplements theretoPackage, as of a date not more than three (3) days prior to the date of delivery thereof), the conclusions and findings of such firm with respect to the financial statements of the Company, the Operating Partnership information and any other properties, businesses or entities (including any pro forma financial statements) and certain financial information regarding the Company, the Operating Partnership and, if applicable, such other properties, businesses or entities contained or incorporated by reference in the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus (other than any electronic road show) and the Prospectus and any amendments or supplements thereto, as customarily matters ordinarily covered by accountants’ “comfort letters” in connection with registered public offerings. If the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus contains or incorporates by reference the financial statements of any properties, businesses or entities whose independent public accountants are not the same as the Company’s independent public accountants, then, at the dates specified in Section 3(a)(xiv) and 3(a)(xxvii) hereof, the Agent shall have received from an independent public accountant of nationally recognized standing, a letter, in form and substance satisfactory to the Agent, addressed to the Agent and dated the date of delivery thereof, as to the matters set forth in the preceding sentence but modified to relate solely to such financial statements and any other financial information contained or incorporated by reference in the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus and any amendments or supplements thereto relating to such properties, businesses or entities, as the case may be.
(gi) Since the Upon commencement of the offering of the Shares Stock under this Agreement or, if later, since the most recent Registration Statement Amendment Date or Company Periodic Report Date (whichever is later) and, in the case of the sale of Shares pursuant to a Terms Agreement to which the Agent is a party, since the date of such Terms Agreement:
(A) in the judgment of the Agent there shall not have occurred any Material Adverse Change;
(B) there shall not have been any change, increase or decrease specified in the letter or letters referred to in subsection (f) of this Section 5 or Section 3(a)(xiv) which is, in the sole judgment of the Agent, so material and adverse as to make it impractical or inadvisable to proceed with the offering, sale or delivery of the Shares on the terms and in the manner contemplated in the Registration Statement, the Disclosure Package and the Prospectus; and
(C) (i) no downgrading shall have occurred in the rating accorded to any securities issued or guaranteed by the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to its rating of, any securities of or guaranteed by the Company or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading).
(i) The Company shall have furnished to the Agent a certificate of an officer in a form reasonably satisfactory to the Agent stating the minimum gross sales price per share for the sale of Shares such Stock pursuant to this Agreement and the other information specified in clauses (x) maximum aggregate number of shares of Stock that may be issued and (y) of Section 2(b) andsold pursuant to this Agreement or, alternatively, maximum aggregate gross sales price from such sales, as authorized from time to time by the Board or the Designated Subcommittee or, in the event connection with any amendment, revision or modification of any change in such informationminimum price or maximum share number or amount, shall promptly provide the Agent with a new certificate of an officer setting forth such changed information (and the receipt of such certificate and any such new certificate shall have been confirmed by the Agent (which confirmation may be by facsimile transmission or electronic mail), with respect thereto and (ii) on each date specified in Section 3(a)(xii) and 3(a)(xxvii), the Company shall have furnished to the Agent a certificate to the effect set forth in Exhibit C attached hereto (and including certificate, dated such date, of any changes proposed by the Company reasonably satisfactory to the Agent and two of its counsel and such additional matters as the Agent may reasonably request) of the Chairman of the Board, Chief Executive Officer, President President, Chief Financial Officer, Executive Vice President, Senior Vice President, General Counsel, Treasurer or Chief Operating Officer Associate General Counsel to the effect that:
(A) The representations and warranties of the Company in Section 1 are true and correct on and as of the applicable date specified in Section 3(a)(xii), and the Chief Financial Officer Company has complied in all material respects with all its agreements contained herein and satisfied all the conditions on its part to be performed or Chief Accounting Officer satisfied hereunder at or prior to such applicable date; and
(B) No stop order suspending the effectiveness of the Registration Statement has been issued; no proceedings or examination for that purpose have been instituted or, to the knowledge of such officers, threatened; and the Commission has not notified the Company (1) on behalf of any objection to the use of the Company itself and (2) in its capacity as general partner form of the Operating Partnership, on behalf of the Operating PartnershipRegistration Statement or any post-effective amendment thereto.
(if) Subsequent to the later of (i) the execution and delivery of this Agreement or (ii) the most recent Company Periodic Report Date or Registration Statement Amendment Date (whichever is later) and, in connection with any Terms Agreement, subsequent to the date of such Terms Agreement, there shall not have occurred any of the following: (i) trading generally shall have been materially suspended or quotation in materially limited on or by, as the case may be, any of the New York Stock Exchange, the American Stock Exchange or the NASDAQ Global Select Market, (ii) trading of any securities issued or guaranteed by of the Company or the Operating Partnership shall have been suspended or limited by the Commission or by the Exchange; (ii) trading in securities generally on the Exchange shall have been suspended or limited, or minimum or maximum prices shall have been generally established on any of such stock exchange by the Commission or FINRA; in any over-the-counter market, (iii) a general moratorium on commercial banking moratorium activities in New York shall have been declared by federal either Federal or New York State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States has occurred; or and (iv) there shall have occurred any attack on, outbreak or escalation of national or international hostilities or any crisis or calamityact of terrorism involving, the United States, or any change in the United States or international financial markets, markets or any substantial change calamity or development involving a prospective substantial change in United States’ or international political, financial or economic conditions, as in the judgment of the Agent crisis that is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale (v) any material disruption of settlements of securities or delivery of the Shares clearance services in the manner United States that would materially impair settlement and on clearance with respect to the terms described Stock. If the Agent elects to terminate its obligations pursuant to this paragraph, the Company shall be notified promptly in the Prospectus and the Disclosure Package or to enforce contracts for the sale of securitieswriting.
(jg) The Exchange shall have approved the Shares Stock for listing, subject only to official notice of issuance, and satisfactory evidence of such action shall have been provided to the Agent.
(kh) On or prior to each Delivery Dateanniversary of the date hereof and upon the reasonable request of the Agent, the Company shall have furnished to the Agent such further certificates and documents as the Agent may reasonably requestreceived upon the execution of this Agreement.
(li) In the case of any Terms AgreementSidley Austin LLP, any additional conditions specified therein counsel to the obligations Agent, shall have furnished their letter addressed to the Agent and delivered and dated on each date specified in Section 3(a)(xiii) hereof, with respect to the Registration Statement, the Prospectus and, if applicable, the Pricing Disclosure Package and other related matters as the Agent may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purposes of enabling them to pass upon such matters. Such counsel may also state that, insofar as such opinion involves factual matters or matters of Iowa law, they have relied, to the extent they deem proper, upon certificates and opinions of officers of the Agent thereunder shall have been satisfied as of the dates required. All opinions, letters, evidence Company and its subsidiaries and certificates mentioned above or elsewhere in of public officials.
(j) The Company and the Agent hereby agree that the date of commencement of sales under this Agreement shall be deemed to the date the Company and the Agent mutually agree (which may be in compliance with later than the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Agentdate of this Agreement).
Appears in 1 contract
Samples: Distribution Agreement (American Equity Investment Life Holding Co)
Conditions of Agent’s Obligations. The obligations obligation of any Agent, as agent of the Company, at any time ("Solicitation Time") to solicit offers to purchase the Securities and the obligation of any offeree to purchase Securities or of any Agent hereunder with respect to purchase Securities as principal, pursuant to any Shares Terms Agreement, shall in each case be subject, in such offeree's or Agent's discretion, to the condition that all representations and warranties and other statements of the Company has instructed herein (and, in the case of an obligation of an Agent to sell as agent and the obligations of the Agent hereunder and under any a Terms Agreement with respect to any Shares that the Agent has agreed to purchase Agreement, contained in or has the option to purchase as principal pursuant to incorporated in such Terms Agreement by reference) are subject to (i) the accuracy of the representations true and warranties of the Company correct at and the Operating Partnership contained herein, (a) as of the Commencement Date and any applicable date that is on or prior to such Solicitation Time or Time of this Agreement, (b) as of the date such instructions are given to the Agent or the date of such Terms AgreementDelivery, as the case may be, (c) and at and as of each subsequent Registration Statement Amendment Date such Solicitation Time or Time of Delivery, as the case may be, the condition that on or prior to such Solicitation Time or Time of Delivery, as the case may be, the Company shall have performed all of its obligations hereunder theretofore to be performed, and Company Periodic Report Date and the following additional conditions:
(di) With respect to any Securities sold at or prior to such Solicitation Time or Time of Delivery, as of each Applicable Time and Delivery Date the case may be, the Prospectus as amended or supplemented (including the Pricing Supplement) with respect to such Shares, (ii) the accuracy of the statements of the Company and the Operating Partnership made in any certificates pursuant to the provisions hereof, and (iii) the performance by the Company and the Operating Partnership of their respective covenants and other obligations hereunder and, if applicable, under such Terms Agreement, and to each of the following additional terms and conditions:
(a) The Company Securities shall have been filed the Prospectus and, in the case of any offering or sale of Shares pursuant to a Terms Agreement, the applicable preliminary prospectus with the Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by pursuant to Rule 424(b) under the Securities Act (without giving effect to Rule 424(b)(8)). The Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act in connection with the issuance and sale of the Shares, in each case used or referred to after the date hereof, within the applicable time periods period prescribed for such filings filing by the rules and regulations under such Rule 433. No the Act and in accordance with Section 4(a) hereof; (ii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or preventing or suspending the use of any preliminary prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been issued and shall remain in effect and no proceeding or examination for such that purpose shall have been instituted initiated or threatened by the Commission; any request and (iii) all requests for additional information on the part of the Commission for inclusion of additional information in the Registration Statement, any preliminary prospectus or the Prospectus or otherwise shall have been complied with; the Commission shall not have notified the Company of any objection with to the use reasonable satisfaction of the form of the Registration Statement or any post-effective amendment thereto; the Company shall not have received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to the use of the automatic shelf registration statement form; and FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangementssuch Agent;
(b) The Agent shall not have discovered and disclosed Counsel to the Company that the Registration Statement, the Prospectus or the Disclosure Package, or any amendment or supplement thereto relating to the Shares, contains an untrue statement of a fact which, in the judgment of Sidley Austin LLP, counsel for the Agents, is material or omits to state a fact which, in the judgment of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate and partnership proceedings and other legal matters incident to the authorization, form and validity of the Sales Agreements, any Terms Agreements, the Shares, the Registration Statement, any preliminary prospectus, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement, any of the Other Sales Agreements and any Terms Agreements, and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Agents, and the Company Agents shall have furnished to such counsel all documents and information that they may reasonably require for the purposes of enabling them to pass upon such matters, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements herein contained.
(d) The Agent shall have received (i) the opinion of Xxxxxxx Xxxxx LLP, Maryland counsel for the Company and the Operating Partnership, addressed to such Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, the form of which is attached hereto as Exhibit A and (ii) the opinion or opinions and letter or letters of Xxxxxx & Xxxxxxx LLPopinions, special corporate and tax counsel for dated the Company, addressed to the Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, the form of which is attached hereto as Exhibit B.
(e) The Agent shall have received from Sidley Austin LLP, counsel for the Agent, such letter, addressed to the Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereofCommencement Date, with respect to the Registration Statementincorporation of the Company, the Prospectus validity of the Indenture, the Securities, the Registration Statement and the Disclosure Package Prospectus as amended or supplemented and other related matters (ii) if and to the extent requested by such Agent, on or prior to such Solicitation Time or Time of Delivery, as the case may be, a letter, dated such applicable date, to the effect that such Agent may reasonably request, and rely on the Company shall have opinion or opinions which were last furnished to such Agent pursuant to this Section 6(b) to the same extent as though it or they were dated the date of such letter authorizing reliance (except that the statements in such letter shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented to such date) or, in any case, in lieu of such a letter, an opinion or opinions of the same tenor as the opinion or opinions referred to in clause (i) but modified to relate to the Registration Statement and the Prospectus as amended and supplemented to such date; and in each case such counsel shall have received such documents papers and information as they may reasonably request to enable them to pass upon such matters.;
(fc) At General Counsel for the dates specified in Section 3(a)(xiv) and 3(a)(xxvii) hereofCompany, the Agent shall have received from Deloitte & Touche LLP, independent public accountants or other counsel for the Company satisfactory to such Agent, shall have furnished to such Agent his written opinions, dated the Commencement Date and each applicable date that is on or prior to such Solicitation Time or Time of Delivery, as the Operating Partnership, or other independent public accountants of nationally recognized standing for the Company and the Operating Partnership, a lettercase may be, in form and substance satisfactory to the Agent, addressed to the such Agent and dated the date of delivery thereof Company.
(id) confirming that they are The independent certified public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted thereunder by the Commission and the Public Company Accounting Oversight Board (United States), and (ii) stating, as of the date of delivery thereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus and the Disclosure Package and any amendments or supplements thereto, as of a date not more than three days prior to the date of delivery thereof), the conclusions and findings of such firm with respect to who have certified the financial statements of the Company, the Operating Partnership Company and any other properties, businesses or entities (including any pro forma financial statements) and certain financial information regarding the Company, the Operating Partnership and, if applicable, such other properties, businesses or entities contained its subsidiaries included or incorporated by reference in the Registration StatementStatement shall have furnished to such Agent a letter, dated the Disclosure Package, any Issuer Free Writing Prospectus (other than any electronic road show) Commencement Date and the Prospectus and any amendments each applicable date that is on or supplements theretoprior to such Solicitation Time or Time of Delivery, as customarily covered by accountants’ “comfort letters” in connection with public offerings. If the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus contains or incorporates by reference the financial statements of any properties, businesses or entities whose independent public accountants are not the same as the Company’s independent public accountants, then, at the dates specified in Section 3(a)(xiv) and 3(a)(xxvii) hereof, the Agent shall have received from an independent public accountant of nationally recognized standing, a lettercase may be, in form and substance satisfactory to the Agent, addressed such Agent to the Agent effect set forth in Annex III hereto;
(e) There shall not have occurred any:
(i) change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations, of the Company and dated the date of delivery thereofits subsidiaries, taken as to the matters a whole, from that set forth in the preceding sentence but modified to relate solely to Prospectus, as amended or supplemented at such financial statements and any other financial information contained Solicitation Time or incorporated by reference in the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus and any amendments or supplements thereto relating to such properties, businesses or entitiesTime of Delivery, as the case may be.
(g) Since the commencement of the offering of the Shares under this Agreement or, if later, since the most recent Registration Statement Amendment Date or Company Periodic Report Date (whichever is later) andthat, in the case of the sale of Shares pursuant to a Terms Agreement to which the Agent such Agent's judgment, is a party, since the date of such Terms Agreement:
(A) in the judgment of the Agent there shall not have occurred any Material Adverse Change;
(B) there shall not have been any change, increase or decrease specified in the letter or letters referred to in subsection (f) of this Section 5 or Section 3(a)(xiv) which is, in the sole judgment of the Agent, so material and adverse as and that makes it, in such Agent's judgment, impracticable to make it impractical or inadvisable to proceed with market the offering, sale or delivery of the Shares Securities on the terms and in the manner contemplated by the Prospectus, as so amended or supplemented;
(ii) suspension or material limitation of trading generally on or by, as the case may be, the New York Stock Exchange, the American Stock Exchange, the National Association of Securities Dealers, Inc., the Chicago Board Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade, (B) suspension of trading of any securities of the Company on any exchange or in any over-the-counter market, (C) declaration of a general moratorium on commercial banking activities in New York by either Federal or New York State authorities or (D) any outbreak or escalation of hostilities or any change in financial markets or any calamity or crisis that, in such Agent's judgment, is material and adverse and, in the Registration Statementcase of any of the events described in clauses (A) through (D), such event, singly or together with any other such event, makes it, in such Agent's judgment, impracticable to market the Disclosure Package Securities on the terms and in the manner contemplated by the Prospectus, as amended or supplemented at such Solicitation Time or Time of Delivery, as the case may be; and
(Ciii) (i) no downgrading shall have occurred in the rating accorded to any securities issued or guaranteed by the Company or any of its subsidiaries the Company's securities by any “"nationally recognized statistical rating organization,” " as such term is defined in Section 3(a)(62) for purposes of the Exchange Act; and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to its rating of, any securities of or guaranteed by the Company or any of its subsidiaries (other than an announcement with positive implications of a possible upgradingRule 436(g).
(i) The Company shall have furnished to the Agent a certificate of an officer in a form satisfactory to the Agent stating the minimum gross sales price per share for sale of Shares pursuant to this Agreement and the other information specified in clauses (x) and (y) of Section 2(b) and, in the event of any change in such information, shall promptly provide the Agent with a new certificate of an officer setting forth such changed information (and the receipt of such certificate and any such new certificate shall have been confirmed by the Agent (which confirmation may be by facsimile transmission or electronic mail), and (ii) on each date specified in Section 3(a)(xii) and 3(a)(xxvii), the Company shall have furnished to the Agent a certificate to the effect set forth in Exhibit C attached hereto (and including any changes proposed by the Company reasonably satisfactory to the Agent and its counsel and such additional matters as the Agent may reasonably request) of the Chairman of the Board, Chief Executive Officer, President or Chief Operating Officer of the Company and the Chief Financial Officer or Chief Accounting Officer of the Company (1) on behalf of the Company itself and (2) in its capacity as general partner of the Operating Partnership, on behalf of the Operating Partnership.
(i) Subsequent to the later of (i) the execution and delivery of this Agreement or (ii) the most recent Company Periodic Report Date or Registration Statement Amendment Date (whichever is later) and, in connection with any Terms Agreement, subsequent to the date of such Terms Agreement, there shall not have occurred any of the following: (i) trading or quotation in any securities issued or guaranteed by the Company or the Operating Partnership shall have been suspended or limited by the Commission or by the Exchange; (ii) trading in securities generally on the Exchange shall have been suspended or limited, or minimum or maximum prices shall have been generally established on any of such stock exchange by the Commission or FINRA; (iii) a general banking moratorium shall have been declared by federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States has occurred; or (iv) there shall have occurred any outbreak or escalation of national or international hostilities or any crisis or calamity, or any change in the United States or international financial markets, or any substantial change or development involving a prospective substantial change in United States’ or international political, financial or economic conditions, as in the judgment of the Agent is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares in the manner and on the terms described in the Prospectus and the Disclosure Package or to enforce contracts for the sale of securities.
(j) The Exchange shall have approved the Shares for listing, subject only to official notice of issuance, and satisfactory evidence of such action shall have been provided to the Agent.
(k) On or prior to each Delivery Date, the Company shall have furnished to the Agent such further certificates and documents as the Agent may reasonably request.
(l) In the case of any Terms Agreement, any additional conditions specified therein to the obligations of the Agent thereunder shall have been satisfied as of the dates required. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Agent.
Appears in 1 contract
Conditions of Agent’s Obligations. The obligations of the Agent hereunder with respect to any Shares that the Company has instructed the Agent to sell as agent and the obligations of the Agent hereunder and under any Terms Agreement with respect to any Shares that the Agent has agreed to purchase or has the option to purchase as principal pursuant to such Terms Agreement are subject to (i) the accuracy accuracy, when made and on the date of this Agreement, each Registration Statement Amendment Date, each Company Periodic Report Date, each Supplemental Request Date, each Applicable Time and each Delivery Date, of the representations and warranties of the Company and the Operating Partnership contained hereinherein as though made on such date, (a) as of the date of this Agreement, (b) as of the date such instructions are given to the Agent or the date of such Terms Agreement, as the case may be, (c) as of each subsequent Registration Statement Amendment Date and Company Periodic Report Date and (d) as of each Applicable Time and Delivery Date with respect to such Shares, (ii) the accuracy of the statements of the Company and the Operating Partnership made in any certificates pursuant to the provisions hereof, and (iii) the performance by the Company and the Operating Partnership of their respective covenants and other its obligations hereunder and, if applicable, under such Terms Agreementhereunder, and to each of the following additional terms and conditions:
(a) The Company Prospectus shall have been filed the Prospectus and, in the case of any offering or sale of Shares pursuant to a Terms Agreement, the applicable preliminary prospectus with the Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by pursuant to Rule 424(b) under the Securities Act on or prior to the date hereof and the Company shall have complied with all other requirements applicable to the Prospectus or any supplement thereto under Rule 424(b) (without giving effect to Rule 424(b)(8)). The Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act in connection with the issuance and sale of the Shares, in each case used or referred to after the date hereof, within the applicable time periods prescribed for such filings under such Rule 433. No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or preventing or suspending the use of any preliminary prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding or examination for such purpose shall have been instituted initiated or threatened by the Commission; , any request of the Commission for inclusion of additional information in the Registration Statement, any preliminary prospectus Statement or the Prospectus (including, without limitation, in any document incorporated by reference therein) or otherwise shall have been complied with; , and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; the Company shall not have received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to the use of the automatic shelf registration statement form; and FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements;.
(b) The Agent shall not have discovered and disclosed to the Company that the Registration StatementSkadden, the Prospectus or the Disclosure PackageArps, or any amendment or supplement thereto relating to the SharesSlate, contains an untrue statement of a fact which, in the judgment of Sidley Austin LLP, counsel for the Agents, is material or omits to state a fact which, in the judgment of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate and partnership proceedings and other legal matters incident to the authorization, form and validity of the Sales Agreements, any Terms Agreements, the Shares, the Registration Statement, any preliminary prospectus, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement, any of the Other Sales Agreements and any Terms Agreements, and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Agents, and the Company Xxxxxxx & Xxxx LLP shall have furnished to such the Agent its written opinion and letter, as counsel all documents and information that they may reasonably require for the purposes of enabling them to pass upon such matters, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements herein contained.
(d) The Agent shall have received (i) the opinion of Xxxxxxx Xxxxx LLP, Maryland counsel for the Company and the Operating Partnership, addressed to such Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, the form of which is attached hereto as Exhibit A and (ii) the opinion or opinions and letter or letters of Xxxxxx & Xxxxxxx LLP, special corporate and tax counsel for the Company, addressed to the Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, in form and substance reasonably satisfactory to the form of which is Agent, substantially in the forms attached hereto as Exhibit B.X-0, Xxxxxxx X-0 and Exhibit A-3.
(ec) The Agent Xxxxx Xxxxx, Associate General Counsel of the Company shall have received from Sidley Austin LLP, counsel for the Agent, such letter, furnished her written opinion addressed to the Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, with respect in form and substance reasonably satisfactory to the Registration StatementAgent, substantially in the Prospectus and the Disclosure Package and other related matters form attached hereto as the Agent may reasonably request, and the Company shall have furnished to such counsel such documents and information as they may reasonably request to enable them to pass upon such mattersExhibit A-4.
(fd) At the dates specified in Section 3(a)(xiv) and 3(a)(xxvii) hereof, the Agent shall have received from Deloitte & Touche LLP, independent public accountants for the Company and the Operating Partnership, or other independent public accountants of nationally recognized standing for the Company and the Operating Partnership, KPMG LLP a letter, in form and substance reasonably satisfactory to the Agent, addressed to the Agent and dated the date of delivery thereof (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable rules and regulations adopted thereunder by requirements relating to the Commission and qualification of accountants under Rule 2-01 of Regulation S-X of the Public Company Accounting Oversight Board (United States)Commission, and (ii) stating, as of the date of the date of delivery thereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus and or the Pricing Disclosure Package and any amendments or supplements theretoPackage, as of a date not more than three (3) days prior to the date of delivery thereof), the conclusions and findings of such firm with respect to the financial statements of the Company, the Operating Partnership information and any other properties, businesses or entities (including any pro forma financial statements) and certain financial information regarding the Company, the Operating Partnership and, if applicable, such other properties, businesses or entities contained or incorporated by reference in the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus (other than any electronic road show) and the Prospectus and any amendments or supplements thereto, as customarily matters ordinarily covered by accountants’ “comfort letters” in connection with registered public offerings. If the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus contains or incorporates by reference the financial statements of any properties, businesses or entities whose independent public accountants are not the same as the Company’s independent public accountants, then, at the dates specified in Section 3(a)(xiv) and 3(a)(xxvii) hereof, the Agent shall have received from an independent public accountant of nationally recognized standing, a letter, in form and substance satisfactory to the Agent, addressed to the Agent and dated the date of delivery thereof, as to the matters set forth in the preceding sentence but modified to relate solely to such financial statements and any other financial information contained or incorporated by reference in the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus and any amendments or supplements thereto relating to such properties, businesses or entities, as the case may be.
(gi) Since the Upon commencement of the offering of the Shares Stock under this Agreement or, if later, since the most recent Registration Statement Amendment Date or Company Periodic Report Date (whichever is later) and, in the case of the sale of Shares pursuant to a Terms Agreement to which the Agent is a party, since the date of such Terms Agreement:
(A) in the judgment of the Agent there shall not have occurred any Material Adverse Change;
(B) there shall not have been any change, increase or decrease specified in the letter or letters referred to in subsection (f) of this Section 5 or Section 3(a)(xiv) which is, in the sole judgment of the Agent, so material and adverse as to make it impractical or inadvisable to proceed with the offering, sale or delivery of the Shares on the terms and in the manner contemplated in the Registration Statement, the Disclosure Package and the Prospectus; and
(C) (i) no downgrading shall have occurred in the rating accorded to any securities issued or guaranteed by the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to its rating of, any securities of or guaranteed by the Company or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading).
(i) The Company shall have furnished to the Agent a certificate of an officer in a form reasonably satisfactory to the Agent stating the minimum gross sales price per share for the sale of Shares such Stock pursuant to this Agreement and the other information specified in clauses (x) maximum aggregate number of shares of Stock that may be issued and (y) of Section 2(b) andsold pursuant to this Agreement or, alternatively, maximum aggregate gross sales price from such sales, as authorized from time to time by the Board or the Designated Subcommittee or, in the event connection with any amendment, revision or modification of any change in such informationminimum price or maximum share number or amount, shall promptly provide the Agent with a new certificate of an officer setting forth such changed information (and the receipt of such certificate and any such new certificate shall have been confirmed by the Agent (which confirmation may be by facsimile transmission or electronic mail), with respect thereto and (ii) on each date specified in Section 3(a)(xii) and 3(a)(xxvii), the Company shall have furnished to the Agent a certificate to the effect set forth in Exhibit C attached hereto (and including certificate, dated such date, of any changes proposed by the Company reasonably satisfactory to the Agent and two of its counsel and such additional matters as the Agent may reasonably request) of the Chairman of the Board, Chief Executive Officer, President President, Chief Financial Officer, Executive Vice President, Senior Vice President, General Counsel, Treasurer or Chief Operating Officer Associate General Counsel to the effect that:
(A) The representations and warranties of the Company in Section 1 are true and correct on and as of the applicable date specified in Section 3(a)(xii), and the Chief Financial Officer Company has complied in all material respects with all its agreements contained herein and satisfied all the conditions on its part to be performed or Chief Accounting Officer satisfied hereunder at or prior to such applicable date; and
(B) No stop order suspending the effectiveness of the Registration Statement has been issued; no proceedings or examination for that purpose have been instituted or, to the knowledge of such officers, threatened; and the Commission has not notified the Company (1) on behalf of any objection to the use of the Company itself and (2) in its capacity as general partner form of the Operating Partnership, on behalf of the Operating PartnershipRegistration Statement or any post-effective amendment thereto.
(if) Subsequent to the later of (i) the execution and delivery of this Agreement or (ii) the most recent Company Periodic Report Date or Registration Statement Amendment Date (whichever is later) and, in connection with any Terms Agreement, subsequent to the date of such Terms Agreement, there shall not have occurred any of the following: (i) trading generally shall have been materially suspended or quotation in materially limited on or by, as the case may be, any of the New York Stock Exchange, the American Stock Exchange or the NASDAQ Global Select Market, (ii) trading of any securities issued or guaranteed by of the Company or the Operating Partnership shall have been suspended or limited by the Commission or by the Exchange; (ii) trading in securities generally on the Exchange shall have been suspended or limited, or minimum or maximum prices shall have been generally established on any of such stock exchange by the Commission or FINRA; in any over-the-counter market, (iii) a general moratorium on commercial banking moratorium activities in New York shall have been declared by federal either Federal or New York State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States has occurred; or and (iv) there shall have occurred any attack on, outbreak or escalation of national or international hostilities or any crisis or calamityact of terrorism involving, the United States, or any change in the United States or international financial markets, markets or any substantial change calamity or development involving a prospective substantial change in United States’ or international political, financial or economic conditions, as in the judgment of the Agent crisis that is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale (v) any material disruption of settlements of securities or delivery of the Shares clearance services in the manner United States that would materially impair settlement and on clearance with respect to the terms described Stock. If the Agent elects to terminate its obligations pursuant to this paragraph, the Company shall be notified promptly in the Prospectus and the Disclosure Package or to enforce contracts for the sale of securitieswriting.
(jg) The Exchange shall have approved the Shares Stock for listing, subject only to official notice of issuance, and satisfactory evidence of such action shall have been provided to the Agent.
(kh) On or prior to each Delivery Dateanniversary of the date hereof and upon the reasonable request of the Agent, the Company shall have furnished to the Agent such further certificates and documents as the Agent may reasonably requestreceived upon the execution of this Agreement.
(li) In the case of any Terms AgreementSidley Austin LLP, any additional conditions specified therein counsel to the obligations Agent, shall have furnished their letter addressed to the Agent and delivered and dated on each date specified in Section 3(a)(xiii) hereof, with respect to the Registration Statement, the Prospectus and, if applicable, the Pricing Disclosure Package and other related matters as the Agent may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purposes of enabling them to pass upon such matters. Such counsel may also state that, insofar as such opinion involves factual matters or matters of Iowa law, they have relied, to the extent they deem proper, upon certificates and opinions of officers of the Agent thereunder shall have been satisfied as of the dates required. All opinions, letters, evidence Company and its subsidiaries and certificates mentioned above or elsewhere in of public officials.
(j) The Company and the Agent hereby agree that the date of commencement of sales under this Agreement shall be deemed to the date the Company and the Agent mutually agree (which may be in compliance with later than the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Agentdate of this Agreement).
Appears in 1 contract
Samples: Distribution Agreement (American Equity Investment Life Holding Co)
Conditions of Agent’s Obligations. The Your obligations hereunder, including to consummate the purchase of Solar Bonds on the Agent hereunder with respect to any Shares that the Company has instructed the Agent to sell as agent and the obligations of the Agent hereunder and under any Terms Agreement with respect to any Shares that the Agent has agreed to purchase or has the option to purchase as principal pursuant to such Terms Agreement applicable Settlement Date, are subject to (i) the accuracy of the condition that all representations and warranties and other statements of the Company and herein are, on the Operating Partnership contained herein, (a) as of the date of this Agreement, (b) as of the date such instructions are given to the Agent or the date of such Terms Agreement, as the case may be, (c) as of each subsequent Registration Statement Amendment Commencement Date and Company Periodic Report Date on the applicable Settlement Date, true and (d) as of each Applicable Time and Delivery Date with respect to such Shares, correct in all material respects; (ii) the accuracy of the statements of condition that the Company and the Operating Partnership made shall have performed all of its obligations hereunder in any certificates pursuant all material respects theretofore to the provisions hereof, be performed; and (iii) the performance by following additional conditions (it being understood that the Company and conditions set forth in this Article III shall be interpreted to apply solely with respect to the Operating Partnership of their respective covenants and other obligations hereunder and, if applicable, under such Terms Agreement, and to each specific sale of the following additional terms and conditions:series of Solar Bonds that is to be consummated on the applicable Settlement Date):
(a) The Company Program Supplement and the applicable Pricing Supplement relating to the series of Solar Bonds to be purchased on the applicable Settlement Date shall have been filed the Prospectus and, in the case of any offering or sale of Shares pursuant to a Terms Agreement, the applicable preliminary prospectus with the Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by pursuant to Rule 424(b) under the Securities Act (without giving effect to Rule 424(b)(8)). The Company shall have complied with all within the applicable time period prescribed for such filing requirements applicable to by the rules and regulations under the Securities Act; any Issuer Free Writing Prospectus and any other material required to be filed by the Company pursuant to Rule 433(d) 433 under the Securities Act in connection shall have been filed with the issuance and sale of the Shares, in each case used or referred to after the date hereof, Commission within the applicable time periods period prescribed for such filings under such by Rule 433. No ; no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or preventing or suspending the use of any preliminary prospectus, the Prospectus or any Issuer Free Writing Prospectus part thereof shall have been issued and no proceeding or examination for such that purpose shall have been instituted initiated or threatened by the Commission; any request no stop order suspending or preventing the use of the Commission Program Supplement and the applicable Pricing Supplement relating to such series of Solar Bonds to be purchased on the applicable Settlement Date shall have been initiated or threatened by the Commission; and all requests for inclusion additional information, solely as related to the applicable Platform Disclosure Document Package for the series of additional information in Solar Bonds to be purchased on the Registration Statementapplicable Settlement Date, any preliminary prospectus or on the Prospectus or otherwise part of the Commission, shall have been complied with; the Commission shall not have notified the Company of any objection with to the use of the form of the Registration Statement or any post-effective amendment thereto; the Company shall not have received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to the use of the automatic shelf registration statement form; and FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangementsyour reasonable satisfaction;
(b) The Agent shall not have discovered and disclosed to the Company that the Registration Statement, the Prospectus or the Disclosure Package, or any amendment or supplement thereto relating to the Shares, contains an untrue statement of a fact which, in the judgment of Sidley Austin LLP, counsel Counsel for the Agents, is material or omits to state a fact which, in the judgment of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate and partnership proceedings and other legal matters incident to the authorization, form and validity of the Sales Agreements, any Terms Agreements, the Shares, the Registration Statement, any preliminary prospectus, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement, any of the Other Sales Agreements and any Terms Agreements, and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Agents, and the Company Incapital shall have furnished to you such counsel all documents and information that they may reasonably require for the purposes of enabling them to pass upon such matters, written opinion or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements herein contained.
opinions (d) The Agent shall have received (i) the opinion of Xxxxxxx Xxxxx LLP, Maryland counsel for the Company and the Operating Partnership, addressed to such Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, the a form of which each such opinion is attached hereto as Exhibit A hereto), dated as of the Commencement Date and (ii) the opinion or opinions each Representation Date, in form and letter or letters of Xxxxxx & Xxxxxxx LLP, special corporate and tax counsel for the Company, addressed substance reasonably satisfactory to the Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, the form of which is attached hereto as Exhibit B.
(e) The Agent shall have received from Sidley Austin LLP, counsel for the Agent, such letter, addressed to the Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereofyou, with respect to the Registration Statement, the Prospectus and the Disclosure Package and other related such matters as the Agent you may reasonably request, and the Company such counsel shall have furnished to received such counsel such documents papers and information as they may reasonably request to enable them to pass upon such matters.;
(fc) At Counsel for the dates specified Company shall have furnished to you their written opinions, dated as of the Commencement Date and each Representation Date, in Section 3(a)(xivsubstantially the form attached as Exhibit B hereto;
(d) and 3(a)(xxvii) hereof, the Agent You shall have received on the Commencement Date and each Representation Date, from Deloitte & Touche LLPthe Company’s outside independent auditor, independent public accountants for dated the Company and the Operating Partnership, or other independent public accountants respective dates of nationally recognized standing for the Company and the Operating Partnership, a letterdelivery thereof, in form and substance satisfactory to you, containing statements and information the Agent, addressed type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the Agent financial statements and dated certain financial information contained or incorporated by reference into the Prospectus;
(i) Neither the Company nor any of its Subsidiaries shall have sustained since the date of delivery thereof (i) confirming that they are independent public accountants within the meaning of the Securities Act and latest audited financial statements included or incorporated by reference in the applicable rules and regulations adopted thereunder Pricing Supplement any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Commission and the Public Company Accounting Oversight Board (United States)Pricing Supplement, and (ii) stating, as of the date of delivery thereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus and the Disclosure Package and any amendments or supplements thereto, as of a date not more than three days prior to the date of delivery thereof), the conclusions and findings of such firm with respect to the financial statements of the Company, the Operating Partnership and any other properties, businesses or entities (including any pro forma financial statements) and certain financial information regarding the Company, the Operating Partnership and, if applicable, such other properties, businesses or entities contained or incorporated by reference in the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus (other than any electronic road show) and the Prospectus and any amendments or supplements thereto, as customarily covered by accountants’ “comfort letters” in connection with public offerings. If the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus contains or incorporates by reference the financial statements of any properties, businesses or entities whose independent public accountants are not the same as the Company’s independent public accountants, then, at the dates specified in Section 3(a)(xiv) and 3(a)(xxvii) hereof, the Agent shall have received from an independent public accountant of nationally recognized standing, a letter, in form and substance satisfactory to the Agent, addressed to the Agent and dated the date of delivery thereof, as to the matters set forth in the preceding sentence but modified to relate solely to such financial statements and any other financial information contained or incorporated by reference in the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus and any amendments or supplements thereto relating to such properties, businesses or entities, as the case may be.
(g) Since the commencement of the offering of the Shares under this Agreement or, if later, since the most recent Registration Statement Amendment Date or Company Periodic Report Date (whichever is later) and, in the case of the sale of Shares pursuant to a Terms Agreement to which the Agent is a party, since the date of such Terms Agreement:
(A) in the judgment of the Agent there shall not have occurred any Material Adverse Change;
(B) Pricing Supplement there shall not have been any development involving a prospective change, increase in or decrease specified affecting the general affairs, management, consolidated financial position, consolidated stockholders’ equity or consolidated results of operations of the Company and its Subsidiaries, other than as set forth or contemplated in the letter or letters referred to in subsection (f) Pricing Supplement, the effect of this Section 5 or Section 3(a)(xiv) which iswhich, in the sole any such case described in clause (i) or (ii), is in Incapital’s judgment of the Agent, so material and adverse as to make makes it impractical impracticable or inadvisable to proceed with the offering, sale or delivery distribution of the Shares particular series of Solar Bonds being delivered at the applicable Settlement Date on the terms and in the manner contemplated in the Registration Statement, the applicable Platform Disclosure Package and the Prospectus; andDocument Package;
(Cf) On or after the Applicable Time, as related solely to the offering of the series of Solar Bonds to be purchased on the applicable Settlement Date, (i) no downgrading shall have occurred in the rating accorded to any debt securities issued or guaranteed directly by the Company or any of its subsidiaries Company, if any, by any “nationally recognized statistical rating organization,” ”, as such that term is defined in Section 3(a)(62by the Commission for purposes of Rule 436(g) of under the Exchange Securities Act; , and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to possible negative implications, its rating of, any securities of or guaranteed by the Company or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading).the Company’s debt securities;
(ig) The Company shall have furnished On or after the Applicable Time, as related solely to the Agent a certificate of an officer in a form satisfactory to the Agent stating the minimum gross sales price per share for sale of Shares pursuant to this Agreement and the other information specified in clauses (x) and (y) of Section 2(b) and, in the event of any change in such information, shall promptly provide the Agent with a new certificate of an officer setting forth such changed information (and the receipt of such certificate and any such new certificate shall have been confirmed by the Agent (which confirmation may be by facsimile transmission or electronic mail), and (ii) on each date specified in Section 3(a)(xii) and 3(a)(xxvii), the Company shall have furnished to the Agent a certificate to the effect set forth in Exhibit C attached hereto (and including any changes proposed by the Company reasonably satisfactory to the Agent and its counsel and such additional matters as the Agent may reasonably request) offering of the Chairman particular series of Solar Bonds to be purchased on the Board, Chief Executive Officer, President or Chief Operating Officer of the Company and the Chief Financial Officer or Chief Accounting Officer of the Company (1) on behalf of the Company itself and (2) in its capacity as general partner of the Operating Partnership, on behalf of the Operating Partnership.
(i) Subsequent to the later of (i) the execution and delivery of this Agreement or (ii) the most recent Company Periodic Report Date or Registration Statement Amendment Date (whichever is later) and, in connection with any Terms Agreement, subsequent to the date of such Terms Agreementapplicable Settlement Date, there shall not have occurred any of the following: (i) trading no litigation or quotation in any securities issued proceeding shall be pending or, to the Company’s knowledge, threatened, to restrain or guaranteed by enjoin the Company issuance or delivery of the Operating Partnership shall have been suspended or limited by the Commission or by the Exchange; Solar Bonds, (ii) a suspension or material limitation in trading in securities generally on the New York Stock Exchange shall have been suspended or limited, or minimum or maximum prices shall have been generally established on any of such stock exchange by the Commission or FINRANASDAQ; (iii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange or NASDAQ; (iv) a general moratorium on commercial banking moratorium shall have been activities declared by federal either Federal or New York or California State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States has occurredStates; or (ivv) there shall have occurred any the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or international hostilities war, or (vi) the occurrence of any other calamity or crisis or calamity, or any change in financial, political or economic conditions in the United States or international financial marketselsewhere, if the effect of any such event specified in clause (v) or any substantial change or development involving a prospective substantial change (vi) in United States’ or international political, financial or economic conditions, as in the Incapital’s judgment of the Agent is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery distribution of the Shares particular series of Solar Bonds being delivered at the applicable Settlement Date on the terms and in the manner contemplated in the applicable Platform Disclosure Document Package;
(h) If contemplated by the Prospectus for a particular series of Solar Bonds, the Solar Bonds shall be eligible for clearance and settlement through the facilities of DTC; and
(i) You shall have received on the terms described in the Prospectus Commencement Date and the Disclosure Package or to enforce contracts for the sale of securities.
(j) The Exchange shall have approved the Shares for listing, subject only to official notice of issuance, and satisfactory evidence of such action shall have been provided to the Agent.
(k) On or prior to each Delivery Representation Date, the Company shall have furnished to the Agent such further certificates and documents as the Agent may reasonably request.
(l) In the case of any Terms Agreement, any additional conditions specified therein to the obligations officers of the Agent thereunder shall have been satisfied Company as of the dates required. All opinions, letters, evidence and certificates mentioned above or elsewhere set forth in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the AgentSection VII(a).
Appears in 1 contract
Conditions of Agent’s Obligations. The obligations of the Agent hereunder with respect to any Shares that the Company has instructed the Agent to sell as agent Agents and the obligations of the Agent Forward Purchasers hereunder and under any each Confirmation and Terms Agreement with respect Agreement, as applicable, shall be subject, in each of their sole discretion, to any Shares the condition that the Agent has agreed to purchase or has the option to purchase as principal pursuant to such Terms Agreement are subject to (i) the accuracy of the 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 and the Operating Partnership contained hereinunder each Confirmation and Terms Agreement, (a) as applicable, are true and correct as of the date time of the execution of this Agreement, (b) as of the date such instructions are given to the Agent or the date of such any executed Terms Agreement, as the case may be, (c) Agreement and as of each subsequent Registration Statement Amendment Date and Company Periodic Report Date and (d) as of each Representation Date, Applicable Time and Delivery Date with respect Settlement Date, to such Shares, (ii) the accuracy of the statements of condition that the Company shall have performed all of its obligations hereunder and the Operating Partnership made in any certificates pursuant under each Confirmation, as applicable, theretofore to the provisions hereofbe performed, and (iii) the performance by the Company and the Operating Partnership of their respective covenants and other obligations hereunder and, if applicable, under such Terms Agreement, and to each of the following additional terms and conditions:
(a) The Company Prospectus Supplement shall have been filed the Prospectus and, in the case of any offering or sale of Shares pursuant to a Terms Agreement, the applicable preliminary prospectus with the Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by pursuant to Rule 424(b) under the Securities 1933 Act (without giving effect on or prior to Rule 424(b)(8)). The Company shall have complied the date hereof and in accordance with all filing requirements applicable to any Issuer Free Writing Prospectus and Section 3(a) hereof, any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities 1933 Act in connection shall have been filed with the issuance and sale of the Shares, in each case used or referred to after the date hereof, Commission within the applicable time periods prescribed for such filings under such by Rule 433. No ; no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or preventing or suspending the use of any preliminary prospectus, the Prospectus or any Issuer Free Writing Prospectus part thereof shall have been issued and no proceeding or examination for such that purpose shall have been instituted initiated or threatened by the Commission; any request Commission and no notice of objection of the Commission for inclusion of additional information in the Registration Statement, any preliminary prospectus or the Prospectus or otherwise shall have been complied with; the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; the Company shall not have received from the Commission any notice thereto pursuant to Rule 401(g)(2) of under the Securities 1933 Act objecting to shall have been received; no stop order suspending or preventing the use of the automatic shelf registration statement formProspectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and FINRA all requests for additional information on the part of the Commission shall have raised no objection been complied with to the fairness and reasonableness reasonable satisfaction of the underwriting terms and arrangements;Representatives.
(b) The Agent shall not have discovered and disclosed to the Company that the Registration StatementOn every date specified in Section 3(k) hereof (including, the Prospectus or the Disclosure Packagewithout limitation, or any amendment or supplement thereto relating to the Shares, contains an untrue statement of a fact which, in the judgment of Sidley Austin LLPon every Request Date), counsel for the AgentsAgents and Forward Purchasers, is material or omits to state a fact which, in the judgment of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate and partnership proceedings and other legal matters incident to the authorization, form and validity of the Sales Agreements, any Terms Agreements, the Shares, the Registration Statement, any preliminary prospectus, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement, any of the Other Sales Agreements and any Terms Agreements, and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Agents, and the Company shall have furnished to such counsel all documents and information that they may reasonably require for the purposes of enabling them to pass upon such matters, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements herein contained.
(d) The Agent shall have received (i) the opinion of Xxxxxxx Xxxxx LLP, Maryland counsel for the Company applicable Agents and the Operating Partnership, addressed to Forward Purchasers such Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, the form of which is attached hereto as Exhibit A and (ii) the written opinion or opinions and letter or letters opinions, dated as of Xxxxxx & Xxxxxxx LLP, special corporate and tax counsel for the Company, addressed to the Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, the form of which is attached hereto as Exhibit B.
(e) The Agent shall have received from Sidley Austin LLP, counsel for the Agent, such letter, addressed to the Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereofdate, with respect to the Registration Statement, the Prospectus and the Disclosure Package and other related such matters as the Agent such Agents and Forward Purchasers may reasonably request, and the Company such counsel shall have furnished to received such counsel such documents papers and information as they may reasonably request to enable them to pass upon such matters.
(fc) On every date specified in Section 3(k) hereof (including, without limitation, on every Request Date), counsel for the Company, shall have furnished to the applicable Agents and Forward Purchasers 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 such Agents and Forward Purchasers.
(d) On every date specified in Section 3(k) hereof (including, without limitation, on every Request Date), counsel for the Company, shall have furnished to the applicable Agents and Forward Purchasers 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 such Agents and Forward Purchasers.
(e) At the dates specified in Section 3(a)(xiv3(l) and 3(a)(xxvii) hereofhereof (including, the Agent shall have received from Deloitte & Touche LLPwithout limitation, independent public accountants for the Company and the Operating Partnership, or other independent public accountants of nationally recognized standing for the Company and the Operating Partnership, a letter, in form and substance satisfactory to the Agent, addressed to the Agent and dated the date of delivery thereof (i) confirming that they are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted thereunder by the Commission and the Public Company Accounting Oversight Board (United States), and (ii) stating, as of the date of delivery thereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus and the Disclosure Package and any amendments or supplements thereto, as of a date not more than three days prior to the date of delivery thereofon every Request Date), the conclusions and findings independent accountants of such firm with respect to the Company who have certified the financial statements of the Company, the Operating Partnership Company and any other properties, businesses or entities (including any pro forma financial statements) and certain financial information regarding the Company, the Operating Partnership and, if applicable, such other properties, businesses or entities contained its subsidiaries included or incorporated by reference in the Registration Statement, the General Disclosure Package, any Issuer Free Writing Prospectus (other than any electronic road show) Package and the Prospectus shall have furnished to the applicable Agents and any amendments or supplements theretoForward Purchasers a letter dated as of the date of delivery thereof and addressed to such Agents and Forward Purchasers in form and substance reasonably satisfactory to such Agents and Forward Purchasers and their counsel, as customarily covered by containing statements and information of the type ordinarily included in accountants’ “comfort letters” in connection to underwriters with public offerings. If the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus contains or incorporates by reference respect to the financial statements of any properties, businesses or entities whose independent public accountants are not the same as the Company’s independent public accountants, then, at the dates specified in Section 3(a)(xiv) Company and 3(a)(xxvii) hereof, the Agent shall have received from an independent public accountant of nationally recognized standing, a letter, in form and substance satisfactory to the Agent, addressed to the Agent and dated the date of delivery thereof, as to the matters set forth in the preceding sentence but modified to relate solely to such financial statements and any other financial information contained its subsidiaries included or incorporated by reference in the Registration Statement, the General Disclosure Package, any Issuer Free Writing Prospectus or Package and the Prospectus and any amendments or supplements thereto relating to such properties, businesses or entities, as the case may beProspectus.
(gf) Since the (i) Upon commencement of the offering of the Shares under this Agreement orand on such other dates as reasonably requested by the Agents or the Forward Purchasers, if later, since the most recent Registration Statement Amendment Date or Company Periodic Report Date (whichever is later) and, in the case of the sale of Shares pursuant to a Terms Agreement to which the Agent is a party, since the date of such Terms Agreement:
(A) in the judgment of the Agent there shall not have occurred any Material Adverse Change;
(B) there shall not have been any change, increase or decrease specified in the letter or letters referred to in subsection (f) of this Section 5 or Section 3(a)(xiv) which is, in the sole judgment of the Agent, so material and adverse as to make it impractical or inadvisable to proceed with the offering, sale or delivery of the Shares on the terms and in the manner contemplated in the Registration Statementapplicable, the Disclosure Package Company will furnish or cause to be furnished promptly to such Agents and the Prospectus; and
(C) (i) no downgrading shall have occurred in the rating accorded to any securities issued or guaranteed by the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to its rating of, any securities of or guaranteed by the Company or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading).
(i) The Company shall have furnished to the Agent Forward Purchasers a certificate of an officer in a form satisfactory to the Agent such Agents and Forward Purchasers stating the minimum gross sales price per share for the sale of such Shares pursuant to this Agreement and any Confirmation or Terms Agreement and the other information specified in clauses (x) maximum number of Shares that may be issued and (y) sold pursuant to this Agreement and any Confirmation or Terms Agreement or, alternatively, maximum gross proceeds from such sales, as authorized from time to time by the Company’s board of Section 2(b) anddirectors or a duly authorized committee thereof, and the number of Shares that have been approved for listing on the NYSE or, in the event connection with any amendment, revision or modification of any change in such informationminimum price or maximum Share number or amount, shall promptly provide the Agent with a new certificate of an officer setting forth such changed information (and the receipt of such certificate and any such new certificate shall have been confirmed by the Agent (which confirmation may be by facsimile transmission or electronic mail), with respect thereto and (ii) on each date specified in Section 3(a)(xii3(j) (including, without limitation, on every Request Date), the Agents and 3(a)(xxvii)the Forward Purchasers, as applicable, 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 effect that (A) there has been no Material Adverse Effect since the date as of which information is given 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 has complied with all of the agreements entered into in connection with the transaction contemplated herein and satisfied all conditions on its part to be performed or satisfied.
(g) Since the date of the latest audited financial statements then included or incorporated by reference in the Prospectus and the General Disclosure Package, no Material Adverse Effect shall have occurred.
(h) The Company shall have complied with the provisions of Section 3(c) hereof with respect to the timely furnishing of prospectuses.
(i) On such dates as reasonably requested by the Agents or the Forward Purchasers, as applicable, the Company shall have furnished to the Agent a certificate to the effect set forth conducted due diligence sessions, in Exhibit C attached hereto (form and including any changes proposed by the Company reasonably substance satisfactory to the Agent and its counsel and such additional matters as the Agent may reasonably request) of the Chairman of the Board, Chief Executive Officer, President or Chief Operating Officer of the Company Agents and the Chief Financial Officer or Chief Accounting Officer of the Company (1) on behalf of the Company itself and (2) in its capacity as general partner of the Operating Partnership, on behalf of the Operating Partnership.
(i) Subsequent to the later of (i) the execution and delivery of this Agreement or (ii) the most recent Company Periodic Report Date or Registration Statement Amendment Date (whichever is later) and, in connection with any Terms Agreement, subsequent to the date of such Terms Agreement, there shall not have occurred any of the following: (i) trading or quotation in any securities issued or guaranteed by the Company or the Operating Partnership shall have been suspended or limited by the Commission or by the Exchange; (ii) trading in securities generally on the Exchange shall have been suspended or limited, or minimum or maximum prices shall have been generally established on any of such stock exchange by the Commission or FINRA; (iii) a general banking moratorium shall have been declared by federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States has occurred; or (iv) there shall have occurred any outbreak or escalation of national or international hostilities or any crisis or calamity, or any change in the United States or international financial markets, or any substantial change or development involving a prospective substantial change in United States’ or international political, financial or economic conditionsForward Purchasers, as in the judgment of the Agent is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares in the manner and on the terms described in the Prospectus and the Disclosure Package or to enforce contracts for the sale of securitiesapplicable.
(j) The Exchange shall All filings with the Commission required by Rule 424 under the 1933 Act to have approved the Shares for listing, subject only to official notice of issuance, and satisfactory evidence of such action been filed by each Applicable Time or related Settlement Date shall have been provided to made within the Agentapplicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).
(k) On or The Shares shall have received approval for listing on the NYSE prior to each Delivery the first Settlement Date, the Company shall have furnished to the Agent such further certificates and documents as the Agent may reasonably request.
(l) In Counsel for the case of any Terms AgreementAgents and the Forward Purchasers, any additional conditions specified therein to the obligations of the Agent thereunder as applicable, shall have been satisfied furnished with such documents and opinions as they may require in order to evidence the accuracy of any of the dates required. All opinionsrepresentations or warranties, lettersor the fulfillment of any of the conditions, evidence contained herein, in any Confirmation or in any applicable Terms Agreement; and certificates mentioned above all proceedings taken by the Company in connection with the issuance and sale of the Shares as contemplated herein, in any Confirmation or elsewhere in any applicable Terms Agreement and in connection with the other transactions contemplated by this Agreement or any such Terms Agreement shall be deemed to be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance reasonably satisfactory to the Agents, the Forward Purchasers, as applicable, and counsel for the AgentAgents and Forward Purchasers, as applicable.
Appears in 1 contract
Samples: Atm Sales Agreement (UDR, Inc.)
Conditions of Agent’s Obligations. The obligations of the Agent Agents hereunder with respect to any Shares that the Company has instructed the Agent to sell as agent and the obligations of the Agent hereunder and under any Terms Agreement with respect to any Shares that the Agent has agreed to purchase or has the option to purchase as principal pursuant to such Terms Agreement are subject to (i) the accuracy of the representations and warranties of the Company and the Operating Partnership Transaction Entities contained herein, (a) as herein or in certificates of any officer of either of the date Transaction Entities or any of this Agreement, (b) as of the date such instructions are given to the Agent or the date of such Terms Agreement, as the case may be, (c) as of each subsequent Registration Statement Amendment Date and Company Periodic Report Date and (d) as of each Applicable Time and Delivery Date with respect to such Shares, (ii) the accuracy of the statements of the Company and the Operating Partnership made in any certificates their respective subsidiaries delivered pursuant to the provisions hereofhereof at each Representation Date, and (iii) to the performance by the Company and the Operating Partnership Transaction Entities of their respective covenants and other obligations hereunder and, if applicable, under such Terms Agreementhereunder, and to each of the following additional terms and further conditions:
(a) Effectiveness of Registration Statement and Filing of Prospectus. The Company shall have filed the Prospectus and, in the case of any offering or sale of Shares pursuant to a Terms Agreement, the applicable preliminary prospectus Registration Statement with the Commission (including not earlier than three years prior to the information required by date hereof and the Registration Statement became effective upon filing in accordance with Rule 430B under 462(e). The Company shall have filed with the Securities Act) Commission the Prospectus on or prior to the date of this Agreement and any subsequent Base Prospectus or Prospectus Supplement prior to any Applicable Time and related Settlement Date, as applicable, in each case in the manner and within the time period required by Rule 424(b) under the Securities Act (without giving effect to Rule 424(b)(8)). The Company shall have complied with all filing requirements applicable to any , and each Issuer Free Writing Prospectus and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act in connection with the issuance and sale of the SharesProspectus, if any, in each case used or referred to after the date hereof, manner and within the applicable time periods prescribed for such filings under such period required by Rule 433. No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or preventing or suspending the use of any preliminary prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have has been issued and under the 1933 Act, no proceeding or examination for such purpose shall have been instituted or threatened by the Commission; any request notice of objection of the Commission for inclusion of additional information in the Registration Statement, any preliminary prospectus or the Prospectus or otherwise shall have been complied with; the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; the Company shall not have received from the Commission any notice thereto pursuant to Rule 401(g)(2) of has been received by the Securities Act objecting to Company, no order preventing or suspending the use of the automatic shelf registration statement form; and FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements;
(b) The Agent shall not have discovered and disclosed to the Company that the Registration Statement, any preliminary prospectus or the Prospectus or the Disclosure Package, or any amendment or supplement thereto relating to the Shares, contains an untrue statement of a fact which, in the judgment of Sidley Austin LLP, counsel has been issued and no proceedings for the Agents, is material or omits to state a fact which, in the judgment of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate and partnership proceedings and other legal matters incident to the authorization, form and validity of the Sales Agreements, any Terms Agreements, the Shares, the Registration Statement, any preliminary prospectus, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement, any of the Other Sales Agreements and any Terms Agreements, and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Agents, and the Company shall those purposes have furnished to such counsel all documents and information that they may reasonably require for the purposes of enabling them to pass upon such matters, been instituted or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements herein contained.
(d) The Agent shall have received (i) the opinion of Xxxxxxx Xxxxx LLP, Maryland counsel for the Company and the Operating Partnership, addressed to such Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, the form of which is attached hereto as Exhibit A and (ii) the opinion or opinions and letter or letters of Xxxxxx & Xxxxxxx LLP, special corporate and tax counsel for the Company, addressed to the Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, the form of which is attached hereto as Exhibit B.
(e) The Agent shall have received from Sidley Austin LLP, counsel for the Agent, such letter, addressed to the Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, with respect to the Registration Statement, the Prospectus and the Disclosure Package and other related matters as the Agent may reasonably request, and the Company shall have furnished to such counsel such documents and information as they may reasonably request to enable them to pass upon such matters.
(f) At the dates specified in Section 3(a)(xiv) and 3(a)(xxvii) hereof, the Agent shall have received from Deloitte & Touche LLP, independent public accountants for the Company and the Operating Partnership, or other independent public accountants of nationally recognized standing for the Company and the Operating Partnership, a letter, in form and substance satisfactory to the Agent, addressed to the Agent and dated the date of delivery thereof (i) confirming that they are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted thereunder by the Commission and the Public Company Accounting Oversight Board (United States), and (ii) stating, as of the date of delivery thereof (pending or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus and the Disclosure Package and any amendments or supplements thereto, as of a date not more than three days prior to the date of delivery thereof), the conclusions and findings of such firm with respect to the financial statements of the Company, the Operating Partnership and any other properties, businesses or entities (including any pro forma financial statements) and certain financial information regarding the Company, the Operating Partnership and, if applicable, such other properties, businesses or entities contained or incorporated by reference in the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus (other than any electronic road show) and the Prospectus and any amendments or supplements thereto, as customarily covered by accountants’ “comfort letters” in connection with public offerings. If the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus contains or incorporates by reference the financial statements of any properties, businesses or entities whose independent public accountants are not the same as the Company’s independent public accountantsknowledge, then, at the dates specified in Section 3(a)(xiv) and 3(a)(xxvii) hereof, the Agent shall have received from an independent public accountant of nationally recognized standing, a letter, in form and substance satisfactory to the Agent, addressed to the Agent and dated the date of delivery thereof, as to the matters set forth in the preceding sentence but modified to relate solely to such financial statements and any other financial information contained or incorporated by reference in the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus and any amendments or supplements thereto relating to such properties, businesses or entities, as the case may be.
(g) Since the commencement of the offering of the Shares under this Agreement or, if later, since the most recent Registration Statement Amendment Date or Company Periodic Report Date (whichever is later) and, in the case of the sale of Shares pursuant to a Terms Agreement to which the Agent is a party, since the date of such Terms Agreement:
(A) in the judgment of the Agent there shall not have occurred any Material Adverse Change;
(B) there shall not have been any change, increase or decrease specified in the letter or letters referred to in subsection (f) of this Section 5 or Section 3(a)(xiv) which is, in the sole judgment of the Agent, so material and adverse as to make it impractical or inadvisable to proceed with the offering, sale or delivery of the Shares on the terms and in the manner contemplated in the Registration Statement, the Disclosure Package and the Prospectus; and
(C) (i) no downgrading shall have occurred in the rating accorded to any securities issued or guaranteed by the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to its rating of, any securities of or guaranteed by the Company or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading).
(i) contemplated. The Company shall have furnished complied with any and all requests for additional information on the part of the Commission to the Agent a certificate reasonable satisfaction of an officer in a form satisfactory the Agents and the Forward Purchasers. The Company shall have paid the required Commission filing fees relating to the Agent stating the minimum gross sales price per share for sale of Shares pursuant to this Agreement and the other information specified in clauses (x) and (y) of Section 2(b) and, in the event of any change in such information, shall promptly provide the Agent with a new certificate of an officer setting forth such changed information (and the receipt of such certificate and any such new certificate shall have been confirmed by the Agent (which confirmation may be by facsimile transmission or electronic mail), and (ii) on each date as specified in Section 3(a)(xii3(a) and 3(a)(xxvii), the Company shall have furnished to the Agent a certificate to the effect set forth in Exhibit C attached hereto (and including any changes proposed by the Company reasonably satisfactory to the Agent and its counsel and such additional matters as the Agent may reasonably request) of the Chairman of the Board, Chief Executive Officer, President or Chief Operating Officer of the Company and the Chief Financial Officer or Chief Accounting Officer of the Company (1) on behalf of the Company itself and (2) in its capacity as general partner of the Operating Partnership, on behalf of the Operating Partnershiphereof.
(i) Subsequent to the later of (i) the execution and delivery of this Agreement or (ii) the most recent Company Periodic Report Date or Registration Statement Amendment Date (whichever is later) and, in connection with any Terms Agreement, subsequent to the date of such Terms Agreement, there shall not have occurred any of the following: (i) trading or quotation in any securities issued or guaranteed by the Company or the Operating Partnership shall have been suspended or limited by the Commission or by the Exchange; (ii) trading in securities generally on the Exchange shall have been suspended or limited, or minimum or maximum prices shall have been generally established on any of such stock exchange by the Commission or FINRA; (iii) a general banking moratorium shall have been declared by federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States has occurred; or (iv) there shall have occurred any outbreak or escalation of national or international hostilities or any crisis or calamity, or any change in the United States or international financial markets, or any substantial change or development involving a prospective substantial change in United States’ or international political, financial or economic conditions, as in the judgment of the Agent is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares in the manner and on the terms described in the Prospectus and the Disclosure Package or to enforce contracts for the sale of securities.
(j) The Exchange shall have approved the Shares for listing, subject only to official notice of issuance, and satisfactory evidence of such action shall have been provided to the Agent.
(k) On or prior to each Delivery Date, the Company shall have furnished to the Agent such further certificates and documents as the Agent may reasonably request.
(l) In the case of any Terms Agreement, any additional conditions specified therein to the obligations of the Agent thereunder shall have been satisfied as of the dates required. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Agent.
Appears in 1 contract
Samples: Atm Equity Offering Sales Agreement
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 with respect to any Shares that the Company has instructed the Agent to sell as agent and the obligations of the Agent hereunder and under any Terms Agreement with respect to any Shares that the Agent has agreed to purchase or has the option to purchase as principal pursuant to such Terms Agreement are subject to (i) the accuracy of the representations and warranties of the Company and the Operating Partnership Bank herein contained herein, (a) as of the date of this Agreementhereof and the Closing Time, (b) as of the date such instructions are given to the Agent or the date of such Terms Agreement, as the case may be, (c) as of each subsequent Registration Statement Amendment Date and Company Periodic Report Date and (d) as of each Applicable Time and Delivery Date with respect to such Shares, (ii) the accuracy of the statements of officers and directors of the Company and the Operating Partnership Bank made in any certificates pursuant to the provisions hereof, and (iii) to the performance by the Company and the Operating Partnership Bank of their respective covenants and other obligations hereunder and, if applicable, under such Terms Agreementhereunder, and to each of the following additional terms and further conditions:
(a) The Company shall have filed the Prospectus and, in the case of any offering or sale of Shares pursuant to a Terms Agreement, the applicable preliminary prospectus with the Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act (without giving effect to Rule 424(b)(8)). The Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act in connection with the issuance and sale of the Shares, in each case used or referred to after the date hereof, within the applicable time periods prescribed for such filings under such Rule 433. No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or any post-effective amendment thereto proceedings therefor initiated or preventing or threatened by the Commission, no order suspending the Offerings or authorization for final use of any preliminary prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding or examination for such purpose shall have been instituted proceedings therefor initiated or threatened by the Commission; any request Department or the FDIC and no order suspending the sale of the Commission for inclusion of additional information Securities in the Registration Statement, any preliminary prospectus or the Prospectus or otherwise jurisdiction shall have been complied with; the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; the Company shall not have received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to the use of the automatic shelf registration statement form; and FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements;issued.
(b) The Agent shall not have discovered and disclosed to At the Company that the Registration StatementClosing Time, the Prospectus or the Disclosure Package, or any amendment or supplement thereto relating to the Shares, contains an untrue statement of a fact which, in the judgment of Sidley Austin LLP, counsel for the Agents, is material or omits to state a fact which, in the judgment of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate and partnership proceedings and other legal matters incident to the authorization, form and validity of the Sales Agreements, any Terms Agreements, the Shares, the Registration Statement, any preliminary prospectus, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement, any of the Other Sales Agreements and any Terms Agreements, and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Agents, and the Company shall have furnished to such counsel all documents and information that they may reasonably require for the purposes of enabling them to pass upon such matters, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements herein contained.
(d) The Agent shall have received received:
(i1) The favorable opinion, dated as of the opinion Closing Time, of Xxxxxxx Xxxxx LLPXxxx Xxxxxx Xxxxxxxx & Xxxxxx, Maryland counsel for the Company and the Operating Partnership, addressed to such Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, the form of which is attached hereto as Exhibit A and (ii) the opinion or opinions and letter or letters of Xxxxxx & Xxxxxxx LLP, special corporate and tax counsel for the Company, addressed to the Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, the form of which is attached hereto as Exhibit B.
(e) The Agent shall have received from Sidley Austin LLP, counsel for the Agent, such letter, addressed to the Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, with respect to the Registration Statement, the Prospectus and the Disclosure Package and other related matters as the Agent may reasonably request, and the Company shall have furnished to such counsel such documents and information as they may reasonably request to enable them to pass upon such matters.
(f) At the dates specified in Section 3(a)(xiv) and 3(a)(xxvii) hereof, the Agent shall have received from Deloitte & Touche LLP, independent public accountants for the Company and the Operating Partnership, or other independent public accountants of nationally recognized standing for the Company and the Operating Partnership, a letterBank, in form and substance satisfactory to counsel for the Agent, addressed to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware.
(ii) The Company has full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus and to enter into and perform its obligations under this Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact business and is in good standing in the State of New Jersey and in each other jurisdiction in which such qualification is required whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify in any such other jurisdiction would not have a material adverse effect upon the financial condition, results of operations, business affairs or prospects of the Company, the Bank and the Subsidiaries, considered as one enterprise. The Company is duly registered as a bank holding company under the BHCA.
(iv) Upon consummation of the Conversion, and the issuance of the Foundation Shares to the Foundation immediately upon completion thereof, the authorized, issued and outstanding capital stock of the Company will be as set forth in the Prospectus under "Capitalization" and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Time.
(v) The Securities and the Foundation Shares have been duly and validly authorized for issuance and sale and, when issued and delivered by the Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, or contributed by the Company pursuant to the Plan in the case of the Foundation Shares, will be duly and validly issued and fully paid and nonassessable.
(vi) The issuance of the Securities and the Foundation Shares is not subject to preemptive or other similar rights arising by operation of law or, to the best of their knowledge, otherwise.
(vii) Upon completion of the Conversion, the issuance of the Securities and the Foundation Shares will be in compliance with all conditions imposed upon the Company and the Bank by the Department and the FDIC under the terms of their written approval or notice of intention not to object, as applicable.
(viii) The Bank has been at all times since the date hereof and prior to the Closing Time duly organized, and is validly existing and in good standing under the laws of the State of New Jersey as a New Jersey chartered savings bank of mutual form, and, at Closing Time, has become duly organized, validly existing and in good standing under the laws of the State of New Jersey as a New Jersey chartered savings bank of stock form, in both instances with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus; and the Bank is duly qualified as a foreign corporation in each jurisdiction in which the failure to so qualify would have a material adverse effect upon the financial condition, results of operations, business affairs or prospects of the Bank.
(ix) The Bank is a member in good standing of the Federal Home Loan Bank of New York and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(x) Each Subsidiary of the Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, and each of the Subsidiaries has full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which the failure to so qualify would have a material adverse effect upon the financial condition, results of operatio ns, business affairs or prospects of the Company, the Bank and the Subsidiaries, taken as a whole; the activities of each Subsidiary are permitted to subsidiaries of a bank holding company and of a New Jersey chartered savings bank by the rules, regulations, resolutions and practices of the FRB, the Department and the FDIC; all of the issued and outstanding capital stock of each Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and is owned by the Bank, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity.
(xi) The Foundation has been duly incorporated and is validly existing as a non-stock corporation in good standing under the laws of the State of Delaware with corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus; the Foundation is not a bank holding company within the meaning of 12 C.F.R. Section 225.2(c) as a result of the issuance of shares of Common Stock to it in accordance with the terms of the Plan and in the amounts as described in the Prospectus; no approvals are required to establish the Foundatio n and to contribute the shares of Common Stock thereto as described in the Prospectus other than those set forth in any written notice or order of approval or non-objection of the Conversion, the New Jersey Application, the FDIC Notice or the Holding Company Application, copies of which were provided to the Agent prior to the Closing Time; and dated the date issuance of the Foundation Shares to the Foundation is registered pursuant to the Registration Statement.
(xii) Upon consummation of the Conversion, all of the issued and outstanding capital stock of the Bank when issued and delivered pursuant to the Plan against payment of consideration calculated as set forth in the Plan and set forth in the Prospectus, will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity.
(xiii) The FRB has duly approved the Holding Company Application, the Department has duly approved the New Jersey Application and the FDIC has issued a letter of intent not to object to the Conversion and no action is pending, or to the best knowledge of such counsel after due inquiry, threatened respecting the Holding Company Application, the New Jersey Application, the FDIC Notice, the Conversion or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application complies as to form with the applicable requirements of the FRB, the New Jersey Application complies as to form with the applicable requirements of the Department and the FDIC Notice complies as to form with the applicable requirements of the FDIC; the Holding Company Application, the New Jersey Application and the FDIC Notice include all documents required to be filed as exhibits thereto, and are, to the best knowledge of such counsel after due inquiry, truthful, accurate and complete; and the Company is duly authorized to become a bank holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank to be issued pursuant to the Plan.
(xiv) The execution and delivery thereof of this Agreement, the incurrence of the obligations herein set forth and the consummation of the transactions contemplated hereby, including the establishment of the Foundation and the contribution thereto of the Foundation Shares, (iA) confirming have been duly and validly authorized by all necessary action on the part of each of the Company and the Bank, and this Agreement constitutes the legal, valid and binding agreement of each of the Company and the Bank, enforceable in accordance with its terms, except as rights to indemnity and contrib ution hereunder may be limited under applicable law (it being understood that they are independent such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws and the availability of equitable remedies); (B) will not result in any violation of the provisions of the certificate of incorporation, organization certificate, articles of incorporation or charter, as the case may be, or bylaws of the Company, the Bank or any of the Subsidiaries; and (C) will not conflict with or constitute a breach of, or default under, and no event has occurred which, with notice or lapse of time or both, would constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance, that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations, business affairs or prospects of the Company, the Bank and the Subsidiaries considered as one enterprise, upon any property or assets of the Company, the Bank or the Subsidiaries pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the Bank or the Subsidiaries is a party or by which any of them may be bound, or to which any of the property or assets of the Company, the Bank or the Subsidiaries is subject.
(xv) The Prospectus has been duly authorized by the Department and the FDIC for final use pursuant to the Conversion Regulations and no action is pending, or to the best knowledge of such counsel after due inquiry, is threatened, by the Department or the FDIC to revoke such authorization.
(xvi) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act or, to the best knowledge of such counsel after due inquiry, proceedings therefor initiated or threatened by the Commission.
(xvii) No further approval, authorization, consent or other order of any public accountants within board or body is required in connection with the meaning execution and delivery of this Agreement, the issuance of the Securities and the consummation of the Conversion, except as may be required under the securities or "blue sky" laws of various jurisdictions as to which no opinion need be rendered.
(xviii) At the time the Registration Statement became effective, the Registration Statement (other than the financial statements and statistical data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act and the applicable rules and regulations adopted thereunder by the Commission Securities Act Regulations and the Public Company Accounting Oversight Board Conversion Regulations.
(United States)xix) The Common Stock conforms to the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(iixx) stating, as of the date of delivery thereof (or, with respect to matters involving changes There are no legal or developments since the respective dates as of which specified financial information is given in the Prospectus and the Disclosure Package and any amendments governmental proceedings pending or supplements thereto, as of a date not more than three days prior to the date of delivery thereof), the conclusions and findings of such firm with respect to the financial statements of threatened against or affecting the Company, the Operating Partnership Bank or the Subsidiaries which are required, individually or in the aggregate, to be disclosed in the Registration Statement and any Prospectus, other propertiesthan those disclosed therein, businesses and all pending legal or entities (including any pro forma financial statements) and certain financial information regarding governmental proceedings to which the Company, the Operating Partnership and, if applicable, such other properties, businesses Bank or entities contained any of the Subsidiaries is a party or incorporated by reference to which any of their property is subject which are not described in the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus (other than any electronic road show) and the Prospectus and any amendments or supplements thereto, as customarily covered by accountants’ “comfort letters” in connection with public offerings. If the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus contains or incorporates by reference the financial statements of any properties, businesses or entities whose independent public accountants are not the same as the Company’s independent public accountants, then, at the dates specified in Section 3(a)(xiv) and 3(a)(xxvii) hereof, the Agent shall have received from an independent public accountant of nationally recognized standing, a letter, in form and substance satisfactory including ordinary routine litigation incidental to the Agentbusiness, addressed to the Agent and dated the date of delivery thereofare, as to the matters set forth considered in the preceding sentence but modified to relate solely to such financial statements and any other financial information contained or incorporated by reference in the Registration Statementaggregate, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus and any amendments or supplements thereto relating to such properties, businesses or entities, as the case may benot material.
(g) Since the commencement of the offering of the Shares under this Agreement or, if later, since the most recent Registration Statement Amendment Date or Company Periodic Report Date (whichever is later) and, in the case of the sale of Shares pursuant to a Terms Agreement to which the Agent is a party, since the date of such Terms Agreement:
(A) in the judgment of the Agent there shall not have occurred any Material Adverse Change;
(B) there shall not have been any change, increase or decrease specified in the letter or letters referred to in subsection (f) of this Section 5 or Section 3(a)(xiv) which is, in the sole judgment of the Agent, so material and adverse as to make it impractical or inadvisable to proceed with the offering, sale or delivery of the Shares on the terms and in the manner contemplated in the Registration Statement, the Disclosure Package and the Prospectus; and
(C) (i) no downgrading shall have occurred in the rating accorded to any securities issued or guaranteed by the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to its rating of, any securities of or guaranteed by the Company or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading).
(ixxi) The Company shall have furnished to the Agent a certificate of an officer in a form satisfactory to the Agent stating the minimum gross sales price per share for sale of Shares pursuant to this Agreement and the other information specified in clauses (x) and (y) of Section 2(b) and, in the event of any change in such information, shall promptly provide the Agent with a new certificate of an officer setting forth such changed information (and the receipt of such certificate and any such new certificate shall have been confirmed by the Agent (which confirmation may be by facsimile transmission or electronic mail), and (ii) on each date specified in Section 3(a)(xii) and 3(a)(xxvii), the Company shall have furnished to the Agent a certificate to the effect set forth in Exhibit C attached hereto (and including any changes proposed by the Company reasonably satisfactory to the Agent and its counsel and such additional matters as the Agent may reasonably request) of the Chairman of the Board, Chief Executive Officer, President or Chief Operating Officer of the Company and the Chief Financial Officer or Chief Accounting Officer of the Company (1) on behalf of the Company itself and (2) in its capacity as general partner of the Operating Partnership, on behalf of the Operating Partnership.
(i) Subsequent to the later of (i) the execution and delivery of this Agreement or (ii) the most recent Company Periodic Report Date or Registration Statement Amendment Date (whichever is later) and, in connection with any Terms Agreement, subsequent to the date of such Terms Agreement, there shall not have occurred any of the following: (i) trading or quotation in any securities issued or guaranteed by the Company or the Operating Partnership shall have been suspended or limited by the Commission or by the Exchange; (ii) trading in securities generally on the Exchange shall have been suspended or limited, or minimum or maximum prices shall have been generally established on any of such stock exchange by the Commission or FINRA; (iii) a general banking moratorium shall have been declared by federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States has occurred; or (iv) there shall have occurred any outbreak or escalation of national or international hostilities or any crisis or calamity, or any change in the United States or international financial markets, or any substantial change or development involving a prospective substantial change in United States’ or international political, financial or economic conditions, as in the judgment of the Agent is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares in the manner and on the terms described in the Prospectus under "Risk Factors - The Contribution of Shares and the Disclosure Package or to enforce contracts for the sale of securities.
(j) The Exchange shall have approved the Shares for listing, subject only to official notice of issuance, and satisfactory evidence of such action shall have been provided Cash to the Agent.
(k) On or prior Charitable Foundation Will Dilute Your Ownership Interests and Adversely Impact Net Income," "- Our Stock Value May Suffer Due to each Delivery Dateour Ability to Impede Potential Takeovers, the Company shall have furnished " and "- Adoption of State Tax Legislation May Have a Negative Impact on our Net Income," "Our Policy Regarding Dividends," "Business of The Provident Bank - Legal Proceedings," "Federal and State Taxation," "Regulation," "The Conversion and Offering," "Restrictions on Acquisitions of Provident Financial Services, Inc. and The Provident Bank" and "Description of Capital Stock," to the Agent such further certificates extent that it constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by them and documents as the Agent may reasonably requestis complete and accurate in all material respects.
(l) In the case of any Terms Agreement, any additional conditions specified therein to the obligations of the Agent thereunder shall have been satisfied as of the dates required. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Agent.
Appears in 1 contract
Samples: Agency Agreement (Provident Financial Services Inc)
Conditions of Agent’s Obligations. The Company and the Agent agree that the issuance and the sale of Preferred Stock and all obligations of the Agent hereunder with respect to any Shares that the Company has instructed the Agent to sell as agent and the obligations of the Agent hereunder and under any Terms Agreement with respect to any Shares that the Agent has agreed to purchase or has the option to purchase as principal pursuant to such Terms Agreement are subject to (i) the accuracy of the representations and warranties of the Company and the Operating Partnership Bank herein contained herein, (a) as of the date of this Agreement, (b) hereof and as of the date such instructions are given Closing Date, to the Agent or the date of such Terms Agreement, as the case may be, (c) as of each subsequent Registration Statement Amendment Date and Company Periodic Report Date and (d) as of each Applicable Time and Delivery Date with respect to such Shares, (ii) the accuracy of the written statements of officers and directors of the Company and the Operating Partnership made in any certificates pursuant to the provisions hereof, and (iii) to the performance by the Company and the Operating Partnership of their respective covenants and other obligations hereunder and, if applicable, under such Terms Agreementhereunder, and to each of the following additional terms and further conditions:
(a) The Company shall have filed the Prospectus and, in the case of any offering or sale of Shares pursuant to a Terms Agreement, the applicable preliminary prospectus with the Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act (without giving effect to Rule 424(b)(8)). The Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act in connection with the issuance and sale of the Shares, in each case used or referred to after the date hereof, within the applicable time periods prescribed for such filings under such Rule 433. No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or preventing or suspending the use of any preliminary prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding under the Securities Act or examination for such purpose shall have been instituted proceedings therefor initiated or threatened by the Commission; any request , no order suspending the sale of the Commission for inclusion of additional information Securities in the Registration Statement, any preliminary prospectus or the Prospectus or otherwise jurisdiction shall have been complied with; the Commission shall not have notified issued, and no order, directive, request or other correspondence has been received by the Company of any objection to or the use of the form of the Registration Statement or any post-effective amendment thereto; the Company shall not have received Bank from the Commission any notice pursuant to Rule 401(g)(2) FRB or the OCC which could have the effect of delaying or canceling the Securities Act objecting to the use of the automatic shelf registration statement form; and FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements;Offerings.
(b) The Agent shall not have discovered and disclosed to the Company that the Registration StatementAt Closing Time, the Prospectus or the Disclosure Package, or any amendment or supplement thereto relating to the Shares, contains an untrue statement of a fact which, in the judgment of Sidley Austin LLP, counsel for the Agents, is material or omits to state a fact which, in the judgment of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate and partnership proceedings and other legal matters incident to the authorization, form and validity of the Sales Agreements, any Terms Agreements, the Shares, the Registration Statement, any preliminary prospectus, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement, any of the Other Sales Agreements and any Terms Agreements, and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Agents, and the Company shall have furnished to such counsel all documents and information that they may reasonably require for the purposes of enabling them to pass upon such matters, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements herein contained.
(d) The Agent shall have received received:
(i1) the opinion The favorable opinion, dated as of Xxxxxxx Xxxxx LLPClosing Time, Maryland of Xxxxxx, Xxxxxx & Xxxxxxxx, counsel for the Company and the Operating Partnership, addressed to such Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, the form of which is attached hereto as Exhibit A and (ii) the opinion or opinions and letter or letters of Xxxxxx & Xxxxxxx LLP, special corporate and tax counsel for the Company, addressed to the Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, the form of which is attached hereto as Exhibit B.
(e) The Agent shall have received from Sidley Austin LLP, counsel for the Agent, such letter, addressed to the Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, with respect to the Registration Statement, the Prospectus and the Disclosure Package and other related matters as the Agent may reasonably request, and the Company shall have furnished to such counsel such documents and information as they may reasonably request to enable them to pass upon such matters.
(f) At the dates specified in Section 3(a)(xiv) and 3(a)(xxvii) hereof, the Agent shall have received from Deloitte & Touche LLP, independent public accountants for the Company and the Operating Partnership, or other independent public accountants of nationally recognized standing for the Company and the Operating Partnership, a letterBank, in form and substance satisfactory to counsel for the Agent, addressed to the Agent and dated the date of delivery thereof (i) confirming that they are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted thereunder by the Commission and the Public Company Accounting Oversight Board (United States), and (ii) stating, as of the date of delivery thereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus and the Disclosure Package and any amendments or supplements thereto, as of a date not more than three days prior to the date of delivery thereof), the conclusions and findings of such firm with respect to the financial statements of the Company, the Operating Partnership and any other properties, businesses or entities (including any pro forma financial statements) and certain financial information regarding the Company, the Operating Partnership and, if applicable, such other properties, businesses or entities contained or incorporated by reference in the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus (other than any electronic road show) and the Prospectus and any amendments or supplements thereto, as customarily covered by accountants’ “comfort letters” in connection with public offerings. If the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus contains or incorporates by reference the financial statements of any properties, businesses or entities whose independent public accountants are not the same as the Company’s independent public accountants, then, at the dates specified in Section 3(a)(xiv) and 3(a)(xxvii) hereof, the Agent shall have received from an independent public accountant of nationally recognized standing, a letter, in form and substance satisfactory to the Agent, addressed to the Agent and dated the date of delivery thereof, as to the matters set forth in the preceding sentence but modified to relate solely to such financial statements and any other financial information contained or incorporated by reference in the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus and any amendments or supplements thereto relating to such properties, businesses or entities, as the case may be.
(g) Since the commencement of the offering of the Shares under this Agreement or, if later, since the most recent Registration Statement Amendment Date or Company Periodic Report Date (whichever is later) and, in the case of the sale of Shares pursuant to a Terms Agreement to which the Agent is a party, since the date of such Terms Agreementeffect that:
(A) in the judgment of the Agent there shall not have occurred any Material Adverse Change;
(B) there shall not have been any change, increase or decrease specified in the letter or letters referred to in subsection (f) of this Section 5 or Section 3(a)(xiv) which is, in the sole judgment of the Agent, so material and adverse as to make it impractical or inadvisable to proceed with the offering, sale or delivery of the Shares on the terms and in the manner contemplated in the Registration Statement, the Disclosure Package and the Prospectus; and
(C) (i) no downgrading shall have occurred in the rating accorded to any securities issued or guaranteed by the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to its rating of, any securities of or guaranteed by the Company or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading).
(i) The Company shall have furnished to has been duly incorporated and is validly existing as a corporation in good standing under the Agent a certificate laws of an officer in a form satisfactory to the Agent stating the minimum gross sales price per share for sale State of Shares pursuant to this Agreement and the other information specified in clauses (x) and (y) of Section 2(b) and, in the event of any change in such information, shall promptly provide the Agent with a new certificate of an officer setting forth such changed information (and the receipt of such certificate and any such new certificate shall have been confirmed by the Agent (which confirmation may be by facsimile transmission or electronic mail), and California.
(ii) on each date specified The Company has full corporate power and authority to own, lease and operate its properties and to conduct its business as described in Section 3(a)(xii) the Registration Statement and 3(a)(xxvii), the Company shall have furnished Prospectus and to the Agent a certificate to the effect set forth in Exhibit C attached hereto (enter into and including any changes proposed by the Company reasonably satisfactory to the Agent and perform its counsel and such additional matters as the Agent may reasonably request) of the Chairman of the Board, Chief Executive Officer, President or Chief Operating Officer of the Company and the Chief Financial Officer or Chief Accounting Officer of the Company (1) on behalf of the Company itself and (2) in its capacity as general partner of the Operating Partnership, on behalf of the Operating Partnershipobligations under this Agreement.
(iiii) Subsequent The Company is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required except where the later of (i) the execution and delivery of this Agreement or (ii) the most recent Company Periodic Report Date or Registration Statement Amendment Date (whichever is later) and, in connection with any Terms Agreement, subsequent failure to the date of such Terms Agreement, there shall be so qualified would not have occurred any a material adverse effect upon the financial condition, results of the following: (i) trading operations, or quotation in any securities issued or guaranteed by business of the Company or the Operating Partnership shall Bank, taken as a whole.
(iv) The authorized capital stock of the Company is correctly set forth in the Registration Statement and Prospectus under the caption "Capitalization" and, upon consummation of the Offerings, the issued and outstanding capital stock of the Company will be no less than the Minimum and no more than the Maximum set forth in the Registration Statement and Prospectus under the caption "Capitalization."
(v) The Rights have been suspended or limited duly and validly authorized for issuance, and when issued and delivered by the Commission Company pursuant to the terms of the Rights Offering, in accordance with the description set forth in the Prospectus, will be duly and validly issued.
(vi) The Preferred Stock has been duly and validly authorized for issuance and sale and, when issued and delivered by the Company pursuant to the terms of the Offerings against payment of the consideration therefor in accordance with the description set forth in the Prospectus, will be duly and validly issued and fully paid and non-assessable and will be owned free and clear of any mortgage, pledge, loan, security interest, encumbrance, or claim (legal or equitable) other than that created by the purchaser thereof or by a third party other than the Exchange; Company with respect to a purchaser thereof.
(iivii) trading in securities generally on A number of shares of Common Stock equal to the Exchange shall number of shares of Preferred Stock have been suspended or limitedduly and validly authorized and reserved in the corporate records of the Company, and upon conversion of the Preferred Stock pursuant to the terms of the Offerings, in accordance with the description set forth in the Prospectus, will be duly and validly issued and fully paid and non-assessable and will be owned free and clear of any mortgage, pledge, loan, security interest, encumbrance, or minimum claim (legal or maximum prices shall have been generally established on any equitable).
(viii) The issuance of the Preferred Stock and the Common Stock into which the Preferred Stock is convertible is not subject to preemptive or other similar rights arising by operation of law or, to the best of such stock exchange by counsel's knowledge and information, otherwise.
(ix) The Bank has been duly organized, and is validly existing and in good standing under the Commission or FINRA; (iii) a general banking moratorium shall have been declared by federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in laws of the United States has occurred; or (iv) there shall have occurred any outbreak or escalation of America as a national or international hostilities or any crisis or calamitybank, or any change in the United States or international financial marketswith full corporate power and authority to own, or any substantial change or development involving a prospective substantial change in United States’ or international political, financial or economic conditions, lease and operate its properties and to conduct its business as in the judgment of the Agent is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares in the manner and on the terms described in the Prospectus Registration Statement and the Disclosure Package or to enforce contracts for Prospectus; and the sale of securitiesBank is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required.
(jx) The Exchange shall have approved deposit accounts of the Shares for listing, subject only to official notice of issuance, and satisfactory evidence of such action shall have been provided Bank are insured by the FDIC up to the Agentmaximum amount allowed by law.
(kxi) On The only direct or prior to each Delivery Date, indirect subsidiary of the Company shall have furnished to is the Agent such further certificates Bank; and documents as the Agent may reasonably request.
(l) In the case of any Terms Agreement, any additional conditions specified therein to the obligations Bank has no direct or indirect subsidiary. For purposes of the Agent thereunder shall have been satisfied as opinions set forth in this section 5(b)(1) the term "subsidiaries" refers only to those subsidiaries of the dates required. All opinionsCompany or the Bank which would be considered a "significant subsidiary" within the meaning of Regulation S-X, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with Rule 1-02 promulgated by the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the AgentCommission.
Appears in 1 contract
Conditions of Agent’s Obligations. The Company and the Agent agree that the issuance and the sale of Securities and all obligations of the Agent hereunder with respect to any Shares that the Company has instructed the Agent to sell as agent and the obligations of the Agent hereunder and under any Terms Agreement with respect to any Shares that the Agent has agreed to purchase or has the option to purchase as principal pursuant to such Terms Agreement are subject to (i) the accuracy of the representations and warranties of the Company and the Operating Partnership Bank herein contained herein, (a) as of the date of this Agreement, (b) hereof and as of the date such instructions are given Closing Date, to the Agent or the date of such Terms Agreement, as the case may be, (c) as of each subsequent Registration Statement Amendment Date and Company Periodic Report Date and (d) as of each Applicable Time and Delivery Date with respect to such Shares, (ii) the accuracy of the written statements of officers and directors of the Company and the Operating Partnership made in any certificates pursuant to the provisions hereof, and (iii) to the performance by the Company and the Operating Partnership of their respective covenants and other obligations hereunder and, if applicable, under such Terms Agreementhereunder, and to each of the following additional terms and further conditions:
(a) The Company shall have filed the Prospectus and, in the case of any offering or sale of Shares pursuant to a Terms Agreement, the applicable preliminary prospectus with the Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act (without giving effect to Rule 424(b)(8)). The Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act in connection with the issuance and sale of the Shares, in each case used or referred to after the date hereof, within the applicable time periods prescribed for such filings under such Rule 433. No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or preventing or suspending the use of any preliminary prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding under the 1933 Act or examination for such purpose shall have been instituted proceedings therefor initiated or threatened by the Commission; any request , no order suspending the sale of the Commission for inclusion of additional information Securities in the Registration Statement, any preliminary prospectus or the Prospectus or otherwise jurisdiction shall have been complied with; the Commission shall not have notified issued, and no order, directive, request or other correspondence has been received by the Company of any objection to or the use of the form of the Registration Statement or any post-effective amendment thereto; the Company shall not have received Bank from the Commission any notice pursuant to Rule 401(g)(2) FRB, the OCC or the FDIC which could have the effect of delaying or canceling the Securities Act objecting to the use of the automatic shelf registration statement form; and FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements;Offering.
(b) The At the Closing Time, the Agent shall not have discovered and disclosed to received the Company that favorable opinion, dated as of the Registration StatementClosing Time, the Prospectus or the Disclosure Packageof Xxxxx Xxxxxx & Xxxxxx, or any amendment or supplement thereto relating to the Shares, contains an untrue statement of a fact which, in the judgment of Sidley Austin LLP, counsel for the Agents, is material or omits to state a fact whichCompany and the Bank, in form and substance reasonably satisfactory to counsel for the judgment Agent, and in substantially the form annexed hereto as Annex A. Such counsel may state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of such counsel, is material officers of the Company or any of its subsidiaries and is required to be stated therein or is necessary to make the statements therein not misleadingcertificates of public officials.
(c) All corporate At the Closing Time, the Agent shall have received the favorable opinion, dated as of the Closing Time, of Xxxxxx Xxxxx LLP, counsel for the Agent, with respect to the incorporation and partnership proceedings legal existence of the Company, the issuance of the Securities, the disclosure in the Registration Statement and the Prospectus and other legal related matters incident as the Agent may require. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the authorizationextent they deem proper, form and validity upon certificates of officers of the Sales AgreementsCompany or any of its subsidiaries and public officials.
(i) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the Prospectus, any Terms AgreementsMaterial Adverse Effect and the Agent shall have received a certificate of each of the Chief Executive Officer and President of each 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 any of its subsidiaries from the date of the latest statement of financial condition of the Company, 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, (iii) except as previously disclosed in the Prospectus neither the Company nor any of its subsidiaries shall have received from the FRB, the SharesOCC or the FDIC any direction (oral or written) to make any material change in the method of conducting its business with which it has not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the business, financial condition or results of operations of the Company or any of its subsidiaries, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time, except as to any such representation or warranty which specifically relates to an earlier date, (v) 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 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, directive, request or other correspondence has been received by the Company or any of its subsidiaries from the FRB, the OCC or the FDIC which could have the effect of delaying or canceling the Offering.
(ii) At the Closing Time, the Agent shall have received a certificate of each of the Chief Executive Officer and the President of each 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 and the Prospectus; (ii) based on each of their knowledge, the Registration StatementStatement 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, any preliminary prospectusin light of the circumstances under which such statements were made, not misleading; (iii) based on each of their knowledge, the Prospectus financial statements and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement, any of financial information included in the Other Sales Agreements and any Terms Agreements, Registration Statement and the transactions contemplated hereby and thereby shall be reasonably satisfactory Prospectus fairly present in all material respects the financial condition and results of operations of the Company and its subsidiaries as of and for the dates and periods presented in 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, or caused such disclosure controls and procedures to be designed under their supervision, to ensure that material financial information relating to the Company and its subsidiaries is made known to them; (vi) they have evaluated the effectiveness of their disclosure controls and procedures; and (vii) they have disclosed to McGladrey & Xxxxxx, LLP and the Audit Committee of the Company (A) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the Company's and the Bank's ability to record, process, summarize, and report financial data, 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 control over financial reporting, and any such deficiencies or fraud have either been disclosed in the Registration Statement and the Prospectus or are not material to the Company and its subsidiaries taken as a whole.
(e) At the time of the execution of this Agreement, the Agent shall have received from McGladrey & Xxxxxx, LLP, a letter dated such date, in form and substance satisfactory to the Agent, to the effect that (i) they are independent certified public accountants with respect to the Company and its subsidiaries within the meaning of the Code of Ethics of the AICPA, the 1933 Act and the 1933 Act Regulations; (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 1933 Act and the 1933 Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and McGladrey & Xxxxxx, LLP, and 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 Company included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and the 1933 Act Regulations or are not presented in conformity with GAAP applied on a basis substantially consistent with that of the audited financial statements included in the Registration Statement and the Prospectus, (B) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated available for sale investment securities or total borrowings of the Company or any decrease in consolidated total assets, allowance for loan losses, total deposits or shareholders' equity of the Company, in each case as compared with the amounts shown in the December 31, 2004 balance sheet included in the Registration Statement or, (C) during the period from December 31, 2004 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of the 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 18 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 and its subsidiaries identified in such letter.
(f) At the Closing Time, the Agent shall have received from McGladrey & Xxxxxx, LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of this Section, except that the specified date referred to shall be a date not more than five days prior to Closing Time.
(g) At the Closing Time, counsel for the Agents, and the Company Agent shall have been furnished to with such counsel all documents and information that opinions as they may reasonably require for the purposes purpose of enabling them to pass upon such mattersthe issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations and or warranties, or the satisfaction fulfillment of any of the conditions or agreements 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.
(dh) The Agent shall have received Lock-up Agreements, dated as of the Closing Date, from all of the Company's executive officers and directors, in the form and to the effect contemplated in Section 1(xxxviii).
(i) the opinion of Xxxxxxx Xxxxx LLPAt any time prior to Closing Time, Maryland counsel for the Company and the Operating Partnership, addressed to such Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, the form of which is attached hereto as Exhibit A and (ii) the opinion or opinions and letter or letters of Xxxxxx & Xxxxxxx LLP, special corporate and tax counsel for the Company, addressed to the Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, the form of which is attached hereto as Exhibit B.
(e) The Agent shall have received from Sidley Austin LLP, counsel for the Agent, such letter, addressed to the Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, with respect to the Registration Statement, the Prospectus and the Disclosure Package and other related matters as the Agent may reasonably request, and the Company shall have furnished to such counsel such documents and information as they may reasonably request to enable them to pass upon such matters.
(f) At the dates specified in Section 3(a)(xiv) and 3(a)(xxvii) hereof, the Agent shall have received from Deloitte & Touche LLP, independent public accountants for the Company and the Operating Partnership, or other independent public accountants of nationally recognized standing for the Company and the Operating Partnership, a letter, in form and substance satisfactory to the Agent, addressed to the Agent and dated the date of delivery thereof (i) confirming that they are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted thereunder by the Commission and the Public Company Accounting Oversight Board (United States), and (ii) stating, as of the date of delivery thereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus and the Disclosure Package and any amendments or supplements thereto, as of a date not more than three days prior to the date of delivery thereof), the conclusions and findings of such firm with respect to the financial statements of the Company, the Operating Partnership and any other properties, businesses or entities (including any pro forma financial statements) and certain financial information regarding the Company, the Operating Partnership and, if applicable, such other properties, businesses or entities contained or incorporated by reference in the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus (other than any electronic road show) and the Prospectus and any amendments or supplements thereto, as customarily covered by accountants’ “comfort letters” in connection with public offerings. If the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus contains or incorporates by reference the financial statements of any properties, businesses or entities whose independent public accountants are not the same as the Company’s independent public accountants, then, at the dates specified in Section 3(a)(xiv) and 3(a)(xxvii) hereof, the Agent shall have received from an independent public accountant of nationally recognized standing, a letter, in form and substance satisfactory to the Agent, addressed to the Agent and dated the date of delivery thereof, as to the matters set forth in the preceding sentence but modified to relate solely to such financial statements and any other financial information contained or incorporated by reference in the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus and any amendments or supplements thereto relating to such properties, businesses or entities, as the case may be.
(g) Since the commencement of the offering of the Shares under this Agreement or, if later, since the most recent Registration Statement Amendment Date or Company Periodic Report Date (whichever is later) and, in the case of the sale of Shares pursuant to a Terms Agreement to which the Agent is a party, since the date of such Terms Agreement:
(A) in the judgment of the Agent there shall not have occurred any Material Adverse Change;
(B) there shall not have been any change, increase or decrease specified material adverse change in the letter financial markets in the United States or letters referred to in subsection (f) elsewhere or any outbreak of this Section 5 hostilities or Section 3(a)(xiv) which isescalation thereof or other calamity or crisis the effects of which, in the sole judgment of the Agent, are so material and adverse as to make it impractical impracticable to market the Securities or inadvisable to proceed with enforce contracts, including subscriptions or orders, for the offering, sale or delivery of the Shares on the terms and in the manner contemplated in the Registration Statement, the Disclosure Package and the Prospectus; and
(C) (i) no downgrading shall have occurred in the rating accorded to any securities issued or guaranteed by the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to its rating of, any securities of or guaranteed by the Company or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading).
(i) The Company shall have furnished to the Agent a certificate of an officer in a form satisfactory to the Agent stating the minimum gross sales price per share for sale of Shares pursuant to this Agreement and the other information specified in clauses (x) and (y) of Section 2(b) and, in the event of any change in such information, shall promptly provide the Agent with a new certificate of an officer setting forth such changed information (and the receipt of such certificate and any such new certificate shall have been confirmed by the Agent (which confirmation may be by facsimile transmission or electronic mail)Securities, and (ii) trading generally on each date specified in Section 3(a)(xii) and 3(a)(xxvii), either the Company shall have furnished to the Agent a certificate to the effect set forth in Exhibit C attached hereto (and including any changes proposed by the Company reasonably satisfactory to the Agent and its counsel and such additional matters as the Agent may reasonably request) of the Chairman of the Board, Chief Executive Officer, President New York Stock Exchange or Chief Operating Officer of the Company and the Chief Financial Officer or Chief Accounting Officer of the Company (1) on behalf of the Company itself and (2) in its capacity as general partner of the Operating Partnership, on behalf of the Operating Partnership.
(i) Subsequent to the later of (i) the execution and delivery of this Agreement or (ii) the most recent Company Periodic Report Date or Registration Statement Amendment Date (whichever is later) and, in connection with any Terms Agreement, subsequent to the date of such Terms Agreement, there NASDAQ shall not have occurred any of the following: (i) trading or quotation in any securities issued or guaranteed by the Company or the Operating Partnership shall have been suspended or limited by the Commission or by the Exchange; (ii) trading in securities generally on the Exchange shall have been suspended or limitedsuspended, or and minimum or maximum prices for trading shall not have been generally established on any fixed, or maximum ranges for prices for securities have been required, by either the New York Stock Exchange, the NASD or by order of such stock exchange by the Commission or FINRA; (iii) any other governmental authority, and a general banking moratorium shall not have been declared by federal or Federal, New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States has occurred; or (iv) there shall have occurred any outbreak or escalation of national or international hostilities or any crisis or calamity, or any change in the United States or international financial markets, or any substantial change or development involving a prospective substantial change in United States’ or international political, financial or economic conditions, as in the judgment of the Agent is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares in the manner and on the terms described in the Prospectus and the Disclosure Package or to enforce contracts for the sale of securitiesConnecticut authorities.
(j) The Exchange If any condition specified in this Section shall have approved the Shares for listing, subject only to official notice of issuance, and satisfactory evidence of such action shall not have been provided fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Agent by notice to the Agent.
(k) On Company and the Bank at any time at or prior to each Delivery Datethe Closing Time, the Company and such termination shall have furnished to the Agent such further certificates and documents as the Agent may reasonably request.
(l) In the case be without liability of any Terms Agreement, party to any additional conditions specified therein to the obligations of the Agent thereunder other party except as provided in Section 4 hereof and except that Section 6 and 7 hereof shall have been satisfied as of the dates required. All opinions, letters, evidence survive any such termination and certificates mentioned above or elsewhere remain in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form full force and substance reasonably satisfactory to counsel for the Agenteffect.
Appears in 1 contract
Conditions of Agent’s Obligations. The obligations of the Agent hereunder with respect to any Shares that the Company has instructed the --------------------------------- Agent to sell the Stock as agent and provided herein shall be subject to the obligations accuracy, as of the Agent hereunder date hereof, and under any Terms Agreement with respect to any Shares that the Agent has agreed to purchase or has the option to purchase as principal pursuant to such Terms Agreement are subject to (i) the accuracy of each Settlement Date, of the representations and warranties of the Company and the Operating Partnership contained herein, (a) as of the date of this Agreement, (b) as of the date such instructions are given to the Agent or the date of such Terms Agreement, as the case may be, (c) as of each subsequent Registration Statement Amendment Date and Company Periodic Report Date and (d) as of each Applicable Time and Delivery Date with respect to such Shares, (ii) the accuracy of the statements of the Company and the Operating Partnership made in any certificates pursuant to the provisions hereof, and (iii) the performance by the Company and the Operating Partnership of their respective covenants and other its obligations hereunder and, if applicable, under such Terms Agreement, and to each of the following additional terms and conditions:
(a) The Company shall have filed the Prospectus and, in the case of any offering or sale of Shares pursuant to a Terms Agreement, the applicable preliminary prospectus with the Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act (without giving effect to Rule 424(b)(8)). The Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act in connection with the issuance and sale of the Shares, in each case used or referred to after the date hereof, within the applicable time periods prescribed for such filings under such Rule 433. No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or preventing or suspending the use of any preliminary prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding or examination for such that purpose shall have been instituted or, to the knowledge of the Company or the Agent, threatened by the Commission; , and any request of the Commission for inclusion of additional information (to be included in the Registration Statement, any preliminary prospectus Statement or the Prospectus or otherwise otherwise) shall have been complied with; the Commission shall not have notified the Company of any objection with to the use of the form of the Registration Statement or any post-effective amendment thereto; the Company shall not have received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to the use of the automatic shelf registration statement form; and FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements;Commission's satisfaction.
(b) The Agent shall not have discovered and disclosed to advised the Company that the Registration Statement, the Prospectus Statement or the Disclosure PackageProspectus, or any amendment or supplement thereto relating to the Sharesthereto, contains an untrue statement of a fact which, that in the judgment of Sidley Austin LLPAgent's opinion is material, counsel for the Agents, is material or omits to state a fact which, that in the judgment of such counsel, Agent's opinion is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate and partnership proceedings and other legal matters incident Except as contemplated in the Prospectus, subsequent to the authorizationrespective dates as of which information is given in the Registration Statement and the Prospectus, form and validity there shall not have been any material change, on a consolidated basis, in the capital stock of the Sales AgreementsCompany and its subsidiaries, or any Terms Agreementsmaterial adverse change, or any development that may reasonably be expected to cause a material adverse change, in the Sharescondition (financial or other), the Registration Statementbusiness, any preliminary prospectusprospects, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement, any net worth or results of operations of the Other Sales Agreements Company and any Terms Agreements, and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Agents, and the Company shall have furnished to such counsel all documents and information that they may reasonably require for the purposes of enabling them to pass upon such matters, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements herein containedits subsidiaries.
(d) The Agent shall have received (i) the opinion of Xxxxxxx Xxxxx LLP, Maryland counsel for the Company and the Operating Partnership, addressed to such Agent and delivered and dated on each at every date specified in Section 3(a)(xiii) and 3(a)(xxvii4(l) hereof, opinions of Company Counsel, dated as of such date, to the form effect that:
(i) The Company is a corporation duly incorporated and existing under and by virtue of which the laws of the State of Maryland and is attached hereto in good standing with the State Department of Assessments and Taxation, has full corporate power and authority to conduct its business as Exhibit A described in the Registration Statement and Prospectus and is duly qualified to do business in each jurisdiction where such qualification is required, except where the failure to so qualify would not have a material adverse effect on the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise;
(ii) Each "significant subsidiary" (as such term is defined in Rule 1-02 of Regulation S-X under the opinion or opinions Act) of the Company has been duly incorporated and letter or letters has corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement and Prospectus; each of Xxxxxx & Xxxxxxx LLPthe Company's significant subsidiaries is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation; and all of the issued outstanding capital stock of each significant subsidiary of the Company has been duly authorized and validly issued, special corporate is fully paid and tax counsel for nonassessable, is owned by the Company, addressed directly or indirectly, except for the Preferred Stock of Impac Funding Corporation, free and clear of any mortgage, pledge, lien, encumbrance, claim or equity;
(iii) The shares of Stock have been duly and validly authorized, and, when issued and delivered to and paid for by the purchasers thereof pursuant to this Agreement, will be fully paid and nonassessable and conform in all material respects to the Agent description thereof in the Prospectus under the caption "Capital Stock" and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, the form stockholders of which is attached hereto as Exhibit B.
(e) The Agent shall the Company have received from Sidley Austin LLP, counsel for the Agent, such letter, addressed to the Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, no preemptive rights with respect to the Stock; all corporate action required to be taken for the authorization, issuance and sale of the Stock has been validly and sufficiently taken; and the shares of Stock are the subject of an effective registration statement permitting their sale in the manner contemplated by this Agreement;
(iv) The Registration Statement has become effective under the Act; to the knowledge of such counsel no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been instituted or, to our knowledge, threatened by the Commission;
(v) The Registration Statement, when it became effective, and the Prospectus and the Disclosure Package and other related matters as the Agent may reasonably requestany amendment or supplement thereto, and the Company shall have furnished to such counsel such documents and information as they may reasonably request to enable them to pass upon such matters.
(f) At the dates specified in Section 3(a)(xiv) and 3(a)(xxvii) hereof, the Agent shall have received from Deloitte & Touche LLP, independent public accountants for the Company and the Operating Partnership, or other independent public accountants of nationally recognized standing for the Company and the Operating Partnership, a letter, in form and substance satisfactory to the Agent, addressed to the Agent and dated on the date of delivery filing thereof (i) confirming that they are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted thereunder by with the Commission (and the Public Company Accounting Oversight Board (United States), and (ii) stating, as of the date of delivery thereof (or, with respect to matters involving changes at each Filing Date on or developments since the respective dates as of which specified financial information is given in the Prospectus and the Disclosure Package and any amendments or supplements thereto, as of a date not more than three days prior to the date of delivery thereofthe opinion), complied as to form in all material respects with the conclusions and findings of such firm with respect to the financial statements requirements of the Company, Act and the Operating Partnership Rules and any other properties, businesses or entities (including any pro forma financial statements) Regulations; and certain financial information regarding the Company, the Operating Partnership and, if applicable, such other properties, businesses or entities contained or documents incorporated by reference in the Registration Statement or Prospectus or any amendment or supplement thereto, when filed with the Commission under the Exchange Act, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder (except that we express no opinion as to financial statements, schedules and other financial and statistical data contained in the Registration Statement or the Prospectus, or incorporated by reference therein);
(vi) The description in the Registration Statement and Prospectus of statutes, legal and governmental proceedings, contracts and other documents are accurate in all material respects and fairly present the information required to be shown; and such counsel does 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 or rules of the NASD in connection with the sale and distribution of the Stock by the Agent;
(ix) Except as may be disclosed in the Prospectus, 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
(x) Commencing with the Company's taxable year ended December 31, 1995, the Company has been organized in conformity with the requirements for qualification as a "real estate investment trust," and its proposed method of operation has enabled and will enable it to meet the requirements for qualification and taxation as a "real estate investment trust" under the Code. The information presented in the Registration Statement under the caption "Federal Income Tax Considerations," to the extent it constitutes matters of law or legal conclusions, is accurate in all material respects.
(xi) The Company is not, and upon the issuance and sale of the Stock and the application of the net proceeds therefrom as described in the Prospectus will not be, an "investment company" within the meaning of the 1940 Act. In addition, such counsel shall state that such counsel has no reason to believe that either the Registration Statement, at the Disclosure Packagetime it (including each Post-Effective Amendment thereto) became effective, any Issuer Free Writing Prospectus (other than any electronic road show) and 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 Commission and at each Filing 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 were made, not misleading; it being understood that such counsel need express no opinion as customarily covered by accountants’ “comfort letters” in connection with public offerings. If the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus contains or incorporates by reference to the financial statements or other financial and statistical data included in any of any properties, businesses or entities whose independent public accountants are not the same as the Company’s independent public accountants, then, at documents mentioned in this paragraph.
(e) At the dates specified in Section 3(a)(xiv) and 3(a)(xxvii4(m) hereof, the Agent shall have received a letter from an KPMG Peat Marwick LLP, independent public accountant of nationally recognized standingaccountants for the Company, a letter, in form and substance or other independent accountants satisfactory to the Agent, addressed to the Agent and dated the date of delivery thereof, as to the matters set forth substantially in the preceding sentence but modified form attached hereto as Annex I and otherwise in form and substance satisfactory to relate solely to such financial statements and any other financial information contained or incorporated by reference in the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus and any amendments or supplements thereto relating to such properties, businesses or entities, as the case may beAgent.
(g) Since the commencement of the offering of the Shares under this Agreement or, if later, since the most recent Registration Statement Amendment Date or Company Periodic Report Date (whichever is later) and, in the case of the sale of Shares pursuant to a Terms Agreement to which the Agent is a party, since the date of such Terms Agreement:
(A) in the judgment of the Agent there shall not have occurred any Material Adverse Change;
(B) there shall not have been any change, increase or decrease specified in the letter or letters referred to in subsection (f) of this Section 5 or Section 3(a)(xiv) which is, in the sole judgment of the Agent, so material and adverse as to make it impractical or inadvisable to proceed with the offering, sale or delivery of the Shares on the terms and in the manner contemplated in the Registration Statement, the Disclosure Package and the Prospectus; and
(C) (i) no downgrading The Agent shall have occurred in the rating accorded to any securities issued or guaranteed by received from the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and (ii) no such organization shall have publicly announced that it has under surveillance or reviewa certificate, or has changed its outlook with respect to its rating ofcertificates, any securities of or guaranteed signed by the Company or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading).
(i) The Company shall have furnished to the Agent a certificate of an officer in a form satisfactory to the Agent stating the minimum gross sales price per share for sale of Shares pursuant to this Agreement and the other information specified in clauses (x) and (y) of Section 2(b) and, in the event of any change in such information, shall promptly provide the Agent with a new certificate of an officer setting forth such changed information (and the receipt of such certificate and any such new certificate shall have been confirmed by the Agent (which confirmation may be by facsimile transmission or electronic mail), and (ii) on each date specified in Section 3(a)(xii) and 3(a)(xxvii), the Company shall have furnished to the Agent a certificate to the effect set forth in Exhibit C attached hereto (and including any changes proposed by the Company reasonably satisfactory to the Agent and its counsel and such additional matters as the Agent may reasonably request) of the Chairman of the Board, Chief Executive Officer, the President or Chief Operating Officer a Vice President and by the principal financial or accounting officer of the Company, dated as of the next business day following each Filing Date (each, a "Certificate Date"), to the effect that, to their knowledge:
(i) The representations and warranties of the Company in this Agreement are true and correct as if made at and as of the Certificate 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 the Commencement Date and each such each such Certificate Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued, and no proceeding for that purpose has been instituted or is threatened, by the Commission;
(iii) Since the date of this Agreement there has occurred no event required to be set forth in an amendment or supplement to the Registration Statement or Prospectus that has not been so set forth and there has been no document required to be filed under the Exchange Act and the rules and regulations of the Commission thereunder that upon such filing would be deemed to be incorporated by reference in the Prospectus that has not been so filed; and
(iv) Since the date of this Agreement, there has not been any material adverse change, on a consolidated basis, in the business, financial condition or results of operations of the Company and its subsidiaries considered as one enterprise which has not been described in an amendment or supplement to the Chief Financial Officer Registration Statement or Chief Accounting Officer of the Company (1) on behalf of the Company itself and (2) in its capacity as general partner of the Operating PartnershipProspectus. In addition, on behalf each Certificate Date the certificate shall also state that the shares of the Operating Partnership.
(i) Subsequent Stock to the later of (i) the execution be sold on that date have been duly and delivery of this Agreement or (ii) the most recent Company Periodic Report Date or Registration Statement Amendment Date (whichever is later) and, in connection with any Terms Agreement, subsequent to the date of such Terms Agreement, there shall not have occurred any of the following: (i) trading or quotation in any securities issued or guaranteed validly authorized by the Company or and that all corporate action required to be taken for the Operating Partnership shall have authorization, issuance and sale of the Stock on that date has been suspended or limited by validly and sufficiently taken. The Company will furnish the Commission or by the Exchange; (ii) trading in securities generally on the Exchange shall have been suspended or limited, or minimum or maximum prices shall have been generally established on any Agent with such conformed copies of such stock exchange by the Commission or FINRA; (iii) a general banking moratorium shall have been declared by federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States has occurred; or (iv) there shall have occurred any outbreak or escalation of national or international hostilities or any crisis or calamityopinions, or any change in the United States or international financial marketscertificates, or any substantial change or development involving a prospective substantial change in United States’ or international political, financial or economic conditions, as in the judgment of the Agent is material letters and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares in the manner and on the terms described in the Prospectus and the Disclosure Package or to enforce contracts for the sale of securities.
(j) The Exchange shall have approved the Shares for listing, subject only to official notice of issuance, and satisfactory evidence of such action shall have been provided to the Agent.
(k) On or prior to each Delivery Date, the Company shall have furnished to the Agent such further certificates and other documents as the Agent may shall reasonably request.
(l) In the case of any Terms Agreement, any additional conditions specified therein to the obligations of the Agent thereunder shall have been satisfied as of the dates required. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Agent.
Appears in 1 contract
Samples: Sales Agency Agreement (Impac Mortgage Holdings Inc)
Conditions of Agent’s Obligations. The Company, the Bank and the Agent agree that the issuance and the sale of the Securities and all obligations of the Agent hereunder with respect to any Shares that the Company has instructed the Agent to sell as agent and the obligations of the Agent hereunder and under any Terms Agreement with respect to any Shares that the Agent has agreed to purchase or has the option to purchase as principal pursuant to such Terms Agreement are subject to (i) the accuracy of the representations and warranties of the Company and the Operating Partnership Bank herein contained herein, (a) as of the date of this Agreementhereof and the Closing Time, (b) as of the date such instructions are given to the Agent or the date of such Terms Agreement, as the case may be, (c) as of each subsequent Registration Statement Amendment Date and Company Periodic Report Date and (d) as of each Applicable Time and Delivery Date with respect to such Shares, (ii) the accuracy of the statements of officers and directors of the Company and the Operating Partnership Bank made in any certificates pursuant to the provisions hereof, and (iii) to the performance by the Company and the Operating Partnership Bank of their respective covenants and other obligations hereunder and, if applicable, under such Terms Agreementhereunder, and to each of the following additional terms and further conditions:
(a) The Company shall have filed the Prospectus and, in the case of any offering or sale of Shares pursuant to a Terms Agreement, the applicable preliminary prospectus with the Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act (without giving effect to Rule 424(b)(8)). The Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act in connection with the issuance and sale of the Shares, in each case used or referred to after the date hereof, within the applicable time periods prescribed for such filings under such Rule 433. No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or any post-effective amendment thereto proceedings therefor initiated or preventing or threatened by the Commission, no order suspending the Offerings or authorization for final use of any preliminary prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding or examination for such purpose shall have been instituted proceedings therefor initiated or threatened by the Commission; any request OTS and no order suspending the sale of the Commission for inclusion of additional information Securities in the Registration Statement, any preliminary prospectus or the Prospectus or otherwise jurisdiction shall have been complied with; the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; the Company shall not have received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to the use of the automatic shelf registration statement form; and FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements;issued.
(b) The Agent shall not have discovered and disclosed to the Company that the Registration StatementAt Closing Time, the Prospectus or the Disclosure Package, or any amendment or supplement thereto relating to the Shares, contains an untrue statement of a fact which, in the judgment of Sidley Austin LLP, counsel for the Agents, is material or omits to state a fact which, in the judgment of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate and partnership proceedings and other legal matters incident to the authorization, form and validity of the Sales Agreements, any Terms Agreements, the Shares, the Registration Statement, any preliminary prospectus, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement, any of the Other Sales Agreements and any Terms Agreements, and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Agents, and the Company shall have furnished to such counsel all documents and information that they may reasonably require for the purposes of enabling them to pass upon such matters, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements herein contained.
(d) The Agent shall have received received:
(i1) the opinion The favorable opinion, dated as of Xxxxxxx Xxxxx LLPClosing Time, Maryland of Breyer & Aguggia, special counsel for the Company and the Operating Partnership, addressed to such Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, the form of which is attached hereto as Exhibit A and (ii) the opinion or opinions and letter or letters of Xxxxxx & Xxxxxxx LLP, special corporate and tax counsel for the Company, addressed to the Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, the form of which is attached hereto as Exhibit B.
(e) The Agent shall have received from Sidley Austin LLP, counsel for the Agent, such letter, addressed to the Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, with respect to the Registration Statement, the Prospectus and the Disclosure Package and other related matters as the Agent may reasonably request, and the Company shall have furnished to such counsel such documents and information as they may reasonably request to enable them to pass upon such matters.
(f) At the dates specified in Section 3(a)(xiv) and 3(a)(xxvii) hereof, the Agent shall have received from Deloitte & Touche LLP, independent public accountants for the Company and the Operating Partnership, or other independent public accountants of nationally recognized standing for the Company and the Operating Partnership, a letterBank, in form and substance satisfactory to counsel for the Agent, addressed to the Agent and dated the date of delivery thereof effect that:
(i) confirming that they are independent public accountants The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware.
(ii) The Company has full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and to enter into and perform its obligations under this Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact business and is in good standing in the State of Idaho and in each other jurisdiction in which the failure to so qualify would have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank and the Subsidiary, considered as one enterprise.
(iv) Upon consummation of the Conversion, the authorized, issued and outstanding capital stock of the Company will be within the meaning range as set forth in the Prospectus under "Capitalization" and, except for shares issued upon incorporation of the Company, no shares of Common Stock have been issued and no shares of Common Stock will be issued and outstanding, except in connection with the Conversion, prior to the Closing Time.
(v) The Securities have been duly and validly authorized for issuance and sale and, when issued and delivered by the Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan and stated on the cover page of the Prospectus, will be duly and validly issued and fully paid and non-assessable.
(vi) The issuance of the Securities is not subject to preemptive or other similar rights arising by operation of law or, to the best of such counsel's knowledge, otherwise.
(vii) The Bank has been at all times since the date hereof and prior to the Closing Time validly existing and in good standing under the laws of the United States of America as a federally chartered savings bank of mutual form, and, at Closing Time, has become duly organized, validly existing and in good standing under the laws of the United States of America as a federally chartered savings bank of stock form, in both instances with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus; and the Bank is duly qualified as a foreign corporation in each jurisdiction in which the failure to so qualify would have a material adverse effect upon the financial condition, results of operations or business of the Company, the Bank and the Subsidiary, considered as one enterprise.
(viii) The Bank is a member of the Federal Home Loan Bank of Seattle and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(ix) The Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the laws of the state of Idaho, has full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which the failure to so qualify would have a material adverse effect upon the financial condition, results of operations or business of the Bank and its subsidiaries, taken as a whole; the activities of the Subsidiary are permitted to subsidiaries of a savings association holding company and of a federally chartered savings bank by the rules, regulations, resolutions and practices of the OTS; all of the issued and outstanding capital stock of the Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and is owned directly by the Bank free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim in law or equity.
(x) Upon consummation of the Conversion, all of the issued and outstanding capital stock of the Bank will be duly authorized and validly issued and fully paid and non-assessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance, or legal or equitable claim.
(xi) The OTS has duly approved the Holding Company Application and the Conversion Application, subject to the satisfaction of the conditions set forth in such approvals, and no action is pending, or to the best of such counsel's knowledge, threatened respecting the Holding Company Application or the Conversion Application or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion Application comply as to form in all material respects with the Conversion Regulations and all other applicable requirements of the OTS, and, to the best of such counsel's knowledge, include all documents required to be filed as exhibits thereto; and the OTS has authorized the Company to become a savings and loan holding company and to own all of the issued and outstanding capital stock of the Bank to be issued pursuant to the Plan.
(xii) The FRB has duly approved the BHC Application and, to the best of such counsel's knowledge, no action is pending or threatened respecting the BHC Application or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the BHC Application complies in all material respects with the Bank Holding Company Act of 1956, as amended and all other applicable requirements of the FRB, to the best of such counsel's knowledge, includes all documents required to be filed as exhibits thereto, and is complete in all material respects; the Company is duly authorized to become a bank holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank pursuant to the Plan.
(xiii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by all necessary action on the part of each of the Company and the Bank, and this Agreement constitutes the legal, valid and binding agreement of each of the Company and the Bank, enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws and the availability of equitable remedies); the execution and delivery of this Agreement, the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein will not result in any violation of the provisions of the certificate of incorporation, charter or bylaws of the Company or the Bank; and, to the best of such counsel's knowledge, the execution and delivery of this Agreement, the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein will not constitute a breach of, or default (or an event which, with notice or lapse of time or both, would constitute a default) under, or result in the creation or imposition of any lien, charge or encumbrance, that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations or business of the Company, the Bank and the Subsidiary considered as one enterprise, upon any property or assets of the Company, the Bank or the Subsidiary pursuant to any material contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the Bank or the Subsidiary is a party or by which any of them may be bound, or to which any of the property or assets of the Company, the Bank or the Subsidiary is subject.
(xiv) The Prospectus has been duly authorized by the OTS for final use pursuant to the Conversion Regulations and no action is pending, or to the best of such counsel's knowledge, is threatened, by the OTS to revoke such authorization.
(xv) The Registration Statement is effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act or, proceedings therefor initiated or, to the best of such counsel's knowledge, threatened by the Commission.
(xvi) No further approval, authorization, consent or other order of any public board or body is required in connection with the execution and delivery of this Agreement, the issuance of the Securities and the consummation of the Conversion, except as may be required under the securities or Blue Sky laws of various jurisdictions as to which no opinion need be rendered.
(xvii) At the time the Registration Statement became effective, the Registration Statement (except for the appraisal, financial statements and schedules and other financial and statistical data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Securities Act and the applicable rules Securities Act Regulations.
(xviii) At the time the Form AC and regulations adopted thereunder by Application H-(e)1-S were approved, the Commission Form AC and Application H-(e)1-S (except for the appraisal, financial statements and schedules and other financial and statistical data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the Conversion Regulations.
(xix) The Common Stock conforms to the description thereof contained in the Prospectus, and the Public Company Accounting Oversight Board form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(United States), and (iixx) stating, as of To the date of delivery thereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus and the Disclosure Package and any amendments or supplements thereto, as of a date not more than three days prior to the date of delivery thereof), the conclusions and findings best of such firm with respect to the financial statements of counsel's knowledge, there are no legal or governmental proceedings pending or threatened against or affecting the Company, the Operating Partnership Bank or the Subsidiary which are required, individually or in the aggregate, to be disclosed in the Registration Statement and any Prospectus, other propertiesthan those disclosed therein, businesses and all pending legal or entities (including any pro forma financial statements) and certain financial information regarding governmental proceedings to which the Company, the Operating Partnership and, if applicable, such other properties, businesses Bank or entities contained the Subsidiary is a party or incorporated by reference to which any of their property is subject which are not described in the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus (other than any electronic road show) and the Prospectus and any amendments or supplements thereto, as customarily covered by accountants’ “comfort letters” in connection with public offerings. If the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus contains or incorporates by reference the financial statements of any properties, businesses or entities whose independent public accountants are not the same as the Company’s independent public accountants, then, at the dates specified in Section 3(a)(xiv) and 3(a)(xxvii) hereof, the Agent shall have received from an independent public accountant of nationally recognized standing, a letter, in form and substance satisfactory including ordinary routine litigation incidental to the Agentbusiness, addressed to the Agent and dated the date of delivery thereofare, as to the matters set forth considered in the preceding sentence but modified to relate solely to such financial statements and any other financial information contained or incorporated by reference in the Registration Statementaggregate, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus and any amendments or supplements thereto relating to such properties, businesses or entities, as the case may benot material.
(g) Since the commencement of the offering of the Shares under this Agreement or, if later, since the most recent Registration Statement Amendment Date or Company Periodic Report Date (whichever is later) and, in the case of the sale of Shares pursuant to a Terms Agreement to which the Agent is a party, since the date of such Terms Agreement:
(A) in the judgment of the Agent there shall not have occurred any Material Adverse Change;
(B) there shall not have been any change, increase or decrease specified in the letter or letters referred to in subsection (f) of this Section 5 or Section 3(a)(xiv) which is, in the sole judgment of the Agent, so material and adverse as to make it impractical or inadvisable to proceed with the offering, sale or delivery of the Shares on the terms and in the manner contemplated in the Registration Statement, the Disclosure Package and the Prospectus; and
(C) (i) no downgrading shall have occurred in the rating accorded to any securities issued or guaranteed by the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to its rating of, any securities of or guaranteed by the Company or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading).
(ixxi) The Company shall have furnished to the Agent a certificate of an officer in a form satisfactory to the Agent stating the minimum gross sales price per share for sale of Shares pursuant to this Agreement and the other information specified in clauses (x) and (y) of Section 2(b) and, in the event of any change in such information, shall promptly provide the Agent with a new certificate of an officer setting forth such changed information (and the receipt of such certificate and any such new certificate shall have been confirmed by the Agent (which confirmation may be by facsimile transmission or electronic mail), and (ii) on each date specified in Section 3(a)(xii) and 3(a)(xxvii), the Company shall have furnished to the Agent a certificate to the effect set forth in Exhibit C attached hereto (and including any changes proposed by the Company reasonably satisfactory to the Agent and its counsel and such additional matters as the Agent may reasonably request) of the Chairman of the Board, Chief Executive Officer, President or Chief Operating Officer of the Company and the Chief Financial Officer or Chief Accounting Officer of the Company (1) on behalf of the Company itself and (2) in its capacity as general partner of the Operating Partnership, on behalf of the Operating Partnership.
(i) Subsequent to the later of (i) the execution and delivery of this Agreement or (ii) the most recent Company Periodic Report Date or Registration Statement Amendment Date (whichever is later) and, in connection with any Terms Agreement, subsequent to the date of such Terms Agreement, there shall not have occurred any of the following: (i) trading or quotation in any securities issued or guaranteed by the Company or the Operating Partnership shall have been suspended or limited by the Commission or by the Exchange; (ii) trading in securities generally on the Exchange shall have been suspended or limited, or minimum or maximum prices shall have been generally established on any of such stock exchange by the Commission or FINRA; (iii) a general banking moratorium shall have been declared by federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States has occurred; or (iv) there shall have occurred any outbreak or escalation of national or international hostilities or any crisis or calamity, or any change in the United States or international financial markets, or any substantial change or development involving a prospective substantial change in United States’ or international political, financial or economic conditions, as in the judgment of the Agent is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares in the manner and on the terms described in the Prospectus under "Risk Factors - Antitakeover Effects of Governing Documents, Delaware and Federal Law, Control by Insiders and Employment Agreements," " - Possible Adverse Income Tax Consequences of the Disclosure Package or to enforce contracts for Distribution of Subscription Rights," " - Potential Operational Restrictions Associated with Regulatory Oversight," "Dividend Policy," "Regulation," "Taxation," "The Conversion," "Restrictions on Acquisition of the sale Holding Company" and "Description of securities.
(j) The Exchange shall have approved the Shares for listing, subject only to official notice Capital Stock of issuance, and satisfactory evidence of such action shall have been provided Holding Company," to the Agentextent that it constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by them and is correct in all material respects.
(k) On or prior to each Delivery Date, the Company shall have furnished to the Agent such further certificates and documents as the Agent may reasonably request.
(l) In the case of any Terms Agreement, any additional conditions specified therein to the obligations of the Agent thereunder shall have been satisfied as of the dates required. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Agent.
Appears in 1 contract
Samples: Agency Agreement (Firstbank Corp/Id)
Conditions of Agent’s Obligations. The Agents accept appointment hereunder and their obligations herein and in the Notes set forth upon the terms and conditions hereof and thereof, including the following, to all of which the Issuer and Exide Parent agree and to all of which the rights of the Agent hereunder with respect holders from time to any Shares that the Company has instructed the Agent to sell as agent and the obligations time of the Agent hereunder and under any Terms Agreement with respect to any Shares that the Agent has agreed to purchase or has the option to purchase as principal pursuant to such Terms Agreement are subject to (i) the accuracy of the representations and warranties of the Company and the Operating Partnership contained herein, (a) as of the date of this Agreement, (b) as of the date such instructions are given to the Agent or the date of such Terms Agreement, as the case may be, (c) as of each subsequent Registration Statement Amendment Date and Company Periodic Report Date and (d) as of each Applicable Time and Delivery Date with respect to such Shares, (ii) the accuracy of the statements of the Company and the Operating Partnership made in any certificates pursuant to the provisions hereof, and (iii) the performance by the Company and the Operating Partnership of their respective covenants and other obligations hereunder and, if applicable, under such Terms Agreement, and to each of the following additional terms and conditionsNotes shall be subject:
(a) The Company Each Agent shall have filed the Prospectus and, be entitled to compensation to be agreed upon in the case of any offering or sale of Shares pursuant to a Terms Agreement, the applicable preliminary prospectus writing with the Commission Issuer for all services rendered by it, and the Issuer agrees promptly to pay such compensation to the U.S. Paying Agent who shall apportion such payment among the Agents. The Issuer shall on demand reimburse each Agent for its reasonable out-of-pocket expenses (including the information required reasonable fees and expenses of counsel) incurred by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act (without giving effect to Rule 424(b)(8)). The Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act it in connection with the issuance services rendered by it hereunder. The Issuer hereby agrees to indemnify each Agent, for, and sale 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 negligence, wilful deceit or bad faith on its part arising out of or that are in any way related to this Agreement or any Note in connection with its acting as Agent of the SharesIssuer 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 damages suffered by them in reliance upon any Note, notice, direction, consent, certificate, affidavit, statement, telex, facsimile or other paper or document reasonably believed by them, in each case used good faith and without negligence, to be genuine and to have been presented, signed or referred to after the date hereof, within the applicable time periods prescribed for such filings under such Rule 433. No stop order suspending the effectiveness sent by an Authorized Representative of the Registration Statement Issuer or any post-effective amendment thereto or preventing or suspending an Authorized Representative of Exide Parent. The obligations of the use Issuer under this Section 8(a) shall survive payment of any preliminary prospectusthe Notes, the Prospectus resignation or any Issuer Free Writing Prospectus shall have been issued and no proceeding or examination for removal of such purpose shall have been instituted or threatened by the Commission; any request of the Commission for inclusion of additional information in the Registration Statement, any preliminary prospectus Agents or the Prospectus or otherwise shall have been complied with; the Commission shall not have notified the Company termination of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; the Company shall not have received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to the use of the automatic shelf registration statement form; and FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements;this Agreement.
(b) The In acting under this Agreement and in connection with the Notes, the Agents are acting solely as agents of the Issuer and Exide Parent and do not assume any obligation towards or relationship of agency or trust for or with any of the owners or holders of the Notes, except that all funds held by any Paying Agent or Registrar for the payment of principal of or interest on the Notes shall be held in trust by it for such owner or holder and applied as set forth herein and in the Notes, but need not have discovered and disclosed to the Company be segregated from other funds held by it, except as required by law; provided that the Registration StatementIssuer may deposit with the local court (Amtsgericht) in Frankfurt am Main principal and interest not claimed by holders within 12 months after maturity with or without a waiver of the right to withdraw such deposit irrespective of whether such holders are in default of acceptance. To the extent the right to withdraw is waived, the Prospectus or the Disclosure Package, or any amendment or supplement thereto relating to the Shares, contains an untrue statement of a fact which, in the judgment of Sidley Austin LLP, counsel for the Agents, is material or omits to state a fact which, in the judgment all claims of such counsel, is material and is required to be stated therein or is necessary to make holders against the statements therein not misleadingIssuer shall cease.
(c) All corporate and partnership proceedings and other legal matters incident Any Agent may consult with counsel satisfactory to the authorization, form and validity of the Sales Agreements, any Terms Agreements, the Shares, the Registration Statement, any preliminary prospectus, the Prospectus it and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement, any advice or written opinion of the Other Sales Agreements and any Terms Agreements, and the transactions contemplated hereby and thereby such counsel shall be reasonably satisfactory full and complete authorization and protection in all material respects to counsel for the Agents, and the Company shall have furnished to such counsel all documents and information that they may reasonably require for the purposes of enabling them to pass upon such matters, or in order to evidence the accuracy respect of any of the representations action taken, suffered or omitted to be taken by it hereunder in good faith and warranties, without negligence and in accordance with such advice or the satisfaction of any of the conditions or agreements herein containedopinion.
(d) The Agent shall Agents in their individual capacity or any other capacity, may become the owners of, or acquire any interest in, any Notes or other obligations of the Issuer or Exide Parent with the same rights that it would have received (i) if they were not such Agents, and may engage or be interested in any financial or other transaction with the opinion Issuer or Exide Parent, and may act on, or as depositary, trustee or agent for, any committee or body of Xxxxxxx Xxxxx LLPholders of securities or other obligations of the Issuer or Exide Parent, Maryland counsel for the Company and the Operating Partnership, addressed to as freely as if they were not such Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, the form of which is attached hereto as Exhibit A and (ii) the opinion or opinions and letter or letters of Xxxxxx & Xxxxxxx LLP, special corporate and tax counsel for the Company, addressed to the Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, the form of which is attached hereto as Exhibit B.Agents.
(e) The Agent shall have received from Sidley Austin LLPSubject to any agreement between the Issuer, counsel for Exide Parent and the Agent, such letter, addressed Agents to the Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, with respect to the Registration Statementcontrary, the Prospectus and Agents shall not be under any liability for interest on any moneys received by them pursuant to any of the Disclosure Package and other related matters as provisions of this Agreement or the Agent may reasonably request, and the Company shall have furnished to such counsel such documents and information as they may reasonably request to enable them to pass upon such mattersNotes.
(f) At The recitals contained in this Agreement and in the dates specified in Section 3(a)(xivNotes (except the Registrar's certificates of authentication) shall be taken as the statements of the Issuer and 3(a)(xxvii) hereof, Exide Parent and the Agent shall have received from Deloitte & Touche LLP, independent public accountants Agents do not assume any responsibility for the Company and the Operating Partnership, or other independent public accountants of nationally recognized standing for the Company and the Operating Partnership, a letter, in form and substance satisfactory to the Agent, addressed to the Agent and dated the date of delivery thereof (i) confirming that they are independent public accountants within the meaning correctness of the Securities Act and the applicable rules and regulations adopted thereunder by the Commission and the Public Company Accounting Oversight Board same. The Agents do not make any representation (United States), and (ii) stating, as of the date of delivery thereof (or, other than with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus and the Disclosure Package and any amendments or supplements thereto, as of a date not more than three days prior to the date of delivery thereof), the conclusions and findings of such firm with respect to the financial statements of the Company, the Operating Partnership and any other properties, businesses or entities (including any pro forma financial statementsthemselves) and certain financial information regarding the Company, the Operating Partnership and, if applicable, such other properties, businesses or entities contained or incorporated by reference in the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus (other than any electronic road show) and the Prospectus and any amendments or supplements thereto, as customarily covered by accountants’ “comfort letters” in connection with public offerings. If the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus contains or incorporates by reference the financial statements of any properties, businesses or entities whose independent public accountants are not the same as the Company’s independent public accountants, then, at the dates specified in Section 3(a)(xiv) and 3(a)(xxvii) hereof, the Agent shall have received from an independent public accountant of nationally recognized standing, a letter, in form and substance satisfactory to the Agent, addressed to the Agent and dated the date of delivery thereof, as to the matters set forth in the preceding sentence but modified to relate solely to such financial statements and any other financial information contained validity or incorporated by reference in the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus sufficiency of this Agreement or the Prospectus Notes, except for the Agents' due authorization, execution and delivery of this Agreement. The Agents shall not be accountable for the use or application by the Issuer or Exide Parent of any amendments of the Notes or supplements thereto relating to such properties, businesses or entities, as the case may beproceeds thereof.
(g) Since the commencement of the offering of the Shares under The Agents, their officers, employees and agents shall be obligated to perform such duties and only such duties as are specifically set forth in this Agreement or, if later, since the most recent Registration Statement Amendment Date or Company Periodic Report Date (whichever is later) and, in the case of the sale of Shares pursuant to a Terms Agreement to which the Agent is a party, since the date of such Terms Agreement:
(A) in the judgment of the Agent there shall not have occurred any Material Adverse Change;
(B) there shall not have been any change, increase or decrease specified in the letter or letters referred to in subsection (f) of this Section 5 or Section 3(a)(xiv) which is, in the sole judgment of the Agent, so material and adverse as to make it impractical or inadvisable to proceed with the offering, sale or delivery of the Shares on the terms and in the manner contemplated in the Registration Statement, the Disclosure Package and the Prospectus; and
(C) (i) no downgrading shall have occurred in the rating accorded to any securities issued or guaranteed by the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to its rating of, any securities of or guaranteed by the Company or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading).
(i) The Company shall have furnished to the Agent a certificate of an officer in a form satisfactory to the Agent stating the minimum gross sales price per share for sale of Shares pursuant to this Agreement and the other information specified in clauses (x) and (y) of Section 2(b) and, in the event of any change in such information, shall promptly provide the Agent with a new certificate of an officer setting forth such changed information (and the receipt of such certificate and any such new certificate shall have been confirmed by the Agent (which confirmation may be by facsimile transmission or electronic mail)Notes, and (ii) on each date specified in Section 3(a)(xii) and 3(a)(xxvii), the Company no implied duties or obligations shall have furnished to the Agent a certificate to the effect set forth in Exhibit C attached hereto (and including any changes proposed by the Company reasonably satisfactory to the Agent and its counsel and such additional matters as the Agent may reasonably request) of the Chairman of the Board, Chief Executive Officer, President or Chief Operating Officer of the Company and the Chief Financial Officer or Chief Accounting Officer of the Company (1) on behalf of the Company itself and (2) in its capacity as general partner of the Operating Partnership, on behalf of the Operating Partnership.
(i) Subsequent to the later of (i) the execution and delivery of be read into this Agreement or (ii) the most recent Company Periodic Report Date or Registration Statement Amendment Date (whichever is later) and, in connection with any Terms Agreement, subsequent to the date of such Terms Agreement, there Notes against them. No Agent shall not have occurred any of the following: (i) trading or quotation in any securities issued or guaranteed by the Company or the Operating Partnership shall have been suspended or limited by the Commission or by the Exchange; (ii) trading in securities generally on the Exchange shall have been suspended or limited, or minimum or maximum prices shall have been generally established on any of such stock exchange by the Commission or FINRA; (iii) a general banking moratorium shall have been declared by federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States has occurred; or (iv) there shall have occurred any outbreak or escalation of national or international hostilities or any crisis or calamity, or any change in the United States or international financial markets, or any substantial change or development involving a prospective substantial change in United States’ or international political, financial or economic conditions, as in the judgment of the Agent is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares in the manner and on the terms described in the Prospectus and the Disclosure Package or to enforce contracts be responsible for the sale acts or omissions of securities.
(j) The Exchange shall have approved the Shares for listing, subject only to official notice of issuance, and satisfactory evidence of such action shall have been provided to the any other Agent.
(k) On or prior to each Delivery Date, the Company shall have furnished to the Agent such further certificates and documents as the Agent may reasonably request.
(l) In the case of any Terms Agreement, any additional conditions specified therein to the obligations of the Agent thereunder shall have been satisfied as of the dates required. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Agent.
Appears in 1 contract
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 with respect to any Shares that the Company has instructed the Agent to sell as agent and the obligations of the Agent hereunder and under any Terms Agreement with respect to any Shares that the Agent has agreed to purchase or has the option to purchase as principal pursuant to such Terms Agreement are subject to (i) the accuracy of the representations and warranties of the Company and the Operating Partnership Bank herein contained herein, (a) as of the date of this Agreementhereof and the Closing Time, (b) as of the date such instructions are given to the Agent or the date of such Terms Agreement, as the case may be, (c) as of each subsequent Registration Statement Amendment Date and Company Periodic Report Date and (d) as of each Applicable Time and Delivery Date with respect to such Shares, (ii) the accuracy of the statements of officers and directors of the Company and the Operating Partnership Bank made in any certificates pursuant to the provisions hereof, and (iii) to the performance by the Company and the Operating Partnership Bank of their respective covenants and other obligations hereunder and, if applicable, under such Terms Agreementhereunder, and to each of the following additional terms and further conditions:
(a) The Company shall have filed the Prospectus and, in the case of any offering or sale of Shares pursuant to a Terms Agreement, the applicable preliminary prospectus with the Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act (without giving effect to Rule 424(b)(8)). The Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act in connection with the issuance and sale of the Shares, in each case used or referred to after the date hereof, within the applicable time periods prescribed for such filings under such Rule 433. No stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or any post-effective amendment thereto proceedings therefor initiated or preventing or threatened by the Commission, no order suspending the Offering or authorization for final use of any preliminary prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding or examination for such purpose shall have been instituted proceedings therefor initiated or threatened by the Commission; any request OTS and no order suspending the sale of the Commission for inclusion of additional information Securities in the Registration Statement, any preliminary prospectus or the Prospectus or otherwise jurisdiction shall have been complied with; the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; the Company shall not have received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to the use of the automatic shelf registration statement form; and FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements;issued.
(b) The Agent shall not have discovered and disclosed to the Company that the Registration StatementAt Closing Time, the Prospectus or the Disclosure Package, or any amendment or supplement thereto relating to the Shares, contains an untrue statement of a fact which, in the judgment of Sidley Austin LLP, counsel for the Agents, is material or omits to state a fact which, in the judgment of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate and partnership proceedings and other legal matters incident to the authorization, form and validity of the Sales Agreements, any Terms Agreements, the Shares, the Registration Statement, any preliminary prospectus, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement, any of the Other Sales Agreements and any Terms Agreements, and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Agents, and the Company shall have furnished to such counsel all documents and information that they may reasonably require for the purposes of enabling them to pass upon such matters, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements herein contained.
(d) The Agent shall have received received:
(i1) the opinion The favorable opinion, dated as of Xxxxxxx Xxxxx Closing Time, of Xxxxxxx, Xxxxxx & Xxxxxxxx LLP, Maryland counsel for the Company and the Operating Partnership, addressed to such Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, the form of which is attached hereto as Exhibit A and (ii) the opinion or opinions and letter or letters of Xxxxxx & Xxxxxxx LLP, special corporate and tax counsel for the Company, addressed to the Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, the form of which is attached hereto as Exhibit B.
(e) The Agent shall have received from Sidley Austin LLP, counsel for the Agent, such letter, addressed to the Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, with respect to the Registration Statement, the Prospectus and the Disclosure Package and other related matters as the Agent may reasonably request, and the Company shall have furnished to such counsel such documents and information as they may reasonably request to enable them to pass upon such matters.
(f) At the dates specified in Section 3(a)(xiv) and 3(a)(xxvii) hereof, the Agent shall have received from Deloitte & Touche LLP, independent public accountants for the Company and the Operating Partnership, or other independent public accountants of nationally recognized standing for the Company and the Operating Partnership, a letterBank, in form and substance satisfactory to counsel for the Agent, addressed to the Agent and dated the date of delivery thereof effect that:
(i) confirming that they are independent public accountants The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware.
(ii) The Company has full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and Prospectus and to enter into and perform its obligations under this Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact business and is in good standing in the State of Illinois and each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business as described in the Prospectus, except where the failure to so qualify would not have a material adverse effect upon the consolidated financial condition, results of operations or business affairs of the Company and the Bank, taken as a whole.
(iv) Upon consummation of the Conversion, the authorized, issued and outstanding capital stock of the Company will be within the meaning range described in the Prospectus and, except for shares issued upon incorporation of the Company, which shares shall be canceled prior to or concurrently with the Closing Time, no shares of Common Stock have been issued and are outstanding prior to the Closing Time.
(v) The Securities have been duly and validly authorized for issuance and sale and, when issued and delivered by the Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be duly and validly issued and fully paid and non-assessable.
(vi) The issuance of the Securities Act and the applicable rules and regulations adopted thereunder is not subject to preemptive or other similar rights arising by the Commission and the Public Company Accounting Oversight Board operation of law or, to their knowledge, otherwise.
(United States), and (iivii) stating, as of The Bank has been at all times since the date of delivery thereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus hereof and the Disclosure Package and any amendments or supplements thereto, as of a date not more than three days prior to the date Closing Time organized and validly existing under the laws of delivery thereof)the United States of America as a federally chartered savings bank of mutual form, and, at Closing Time, has become chartered and validly existing under the conclusions laws of the United States of America as a federally chartered savings bank in stock form, in both instances with full corporate power and findings authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus; and the Bank is duly qualified as a foreign corporation in each jurisdiction in which such qualification is required whether by reason of the ownership or leasing of property or the conduct of business as described in the Prospectus, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations or business affairs of the Bank.
(viii) The Bank is a member of the Federal Home Loan Bank of Chicago and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(ix) Upon consummation of the Conversion, all of the issued and outstanding capital stock of the Bank will be duly authorized and validly issued and fully paid and nonassessable, and all such firm capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim.
(x) The OTS has approved the Holding Company Application and the Conversion Application and no action is pending, or to such counsel's knowledge, threatened with respect to the financial statements Holding Company Application or the Conversion Application or the acquisition by the Company of all of the Company, Bank's issued and outstanding capital stock; the Operating Partnership Holding Company Application and any other properties, businesses or entities (including any pro forma financial statements) and certain financial information regarding the Company, Conversion Application comply as to form in all material respects with the Operating Partnership and, if applicable, such other properties, businesses or entities contained or incorporated by reference in applicable requirements of the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus OTS (other than any electronic road show) and financial statements, the Prospectus and any amendments or supplements notes thereto, as customarily covered by accountants’ “comfort letters” in connection with public offerings. If the Registration Statementand other tabular, the Disclosure Packagefinancial, any Issuer Free Writing Prospectus or the Prospectus contains or incorporates by reference the financial statements of any properties, businesses or entities whose independent public accountants are not the same as the Company’s independent public accountants, then, at the dates specified in Section 3(a)(xiv) statistical and 3(a)(xxvii) hereof, the Agent shall have received from an independent public accountant of nationally recognized standing, a letter, in form and substance satisfactory to the Agent, addressed to the Agent and dated the date of delivery thereofappraisal data included therein, as to which no opinion need be rendered) except as compliance therewith is specifically waived by the matters provisions of the OTS Approval Letter and include all documents required to be filed as exhibits thereto; and the Company has been authorized by the OTS to become a savings and loan holding company and to own all of the issued and outstanding capital stock of the Bank to be issued pursuant to the Plan.
(xi) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate action on the part of each of the Company and the Bank, and this Agreement constitutes the legal, valid and binding agreement of each of the Company and the Bank, enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws and the availability of equitable remedies); the execution and delivery of this Agreement, the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein will not (1) result in any violation of the preceding sentence but modified to relate solely to such financial statements and any other financial information contained provisions of the certificate of incorporation or incorporated by reference in the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus and any amendments or supplements thereto relating to such properties, businesses or entitiescharter, as the case may be.
(g) Since the commencement , or bylaws of the offering of the Shares under this Agreement or, if later, since the most recent Registration Statement Amendment Date or Company Periodic Report Date (whichever is later) and, in the case of the sale of Shares pursuant to a Terms Agreement to which the Agent is a party, since the date of such Terms Agreement:
(A) in the judgment of the Agent there shall not have occurred any Material Adverse Change;
(B) there shall not have been any change, increase or decrease specified in the letter or letters referred to in subsection (f) of this Section 5 or Section 3(a)(xiv) which is, in the sole judgment of the Agent, so material and adverse as to make it impractical or inadvisable to proceed with the offering, sale or delivery of the Shares on the terms and in the manner contemplated in the Registration Statement, the Disclosure Package and the Prospectus; and
(C) (i) no downgrading shall have occurred in the rating accorded to any securities issued or guaranteed by the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and (ii) no such organization shall have publicly announced that it has under surveillance or reviewBank, or has changed its outlook with respect to its rating of, any securities of or guaranteed by the Company or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading).
(i) The Company shall have furnished to the Agent a certificate of an officer in a form satisfactory to the Agent stating the minimum gross sales price per share for sale of Shares pursuant to this Agreement and the other information specified in clauses (x) and (y) of Section 2(b) and, in the event of any change in such information, shall promptly provide the Agent with a new certificate of an officer setting forth such changed information (and the receipt of such certificate and any such new certificate shall have been confirmed by the Agent (which confirmation may be by facsimile transmission or electronic mail), and (ii) on each date specified in Section 3(a)(xii) and 3(a)(xxvii), the Company shall have furnished to the Agent a certificate to the effect set forth in Exhibit C attached hereto (and including any changes proposed by the Company reasonably satisfactory to the Agent and its counsel and such additional matters as the Agent may reasonably request) of the Chairman of the Board, Chief Executive Officer, President or Chief Operating Officer of the Company and the Chief Financial Officer or Chief Accounting Officer of the Company (1) on behalf of the Company itself and (2) in its capacity as general partner any material respect, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Operating PartnershipCompany or the Bank pursuant to any material contract, on behalf indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or the Bank is a party or by which any of them may be bound, or to which any of the Operating Partnershipproperty or assets of the Company or the Bank is subject.
(ixii) Subsequent The Prospectus has been authorized by the OTS for final use pursuant to the later Conversion Regulations and the OTS Approval Letter and no action is pending or, to the best of such counsel's knowledge, is threatened, by the OTS to revoke such authorization.
(ixiii) The Registration Statement is effective under the 1933 Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act or proceedings therefor initiated or, to the best of such counsel's knowledge threatened by the Commission.
(xiv) No further approval, authorization, consent or other order of any federal or State of Illinois board or body is required in connection with the execution and delivery of this Agreement Agreement, the issuance of the Securities and the consummation of the Conversion, except as may be required under the securities or Blue Sky laws of various jurisdictions.
(iixv) At the most recent Company Periodic Report Date or time the Registration Statement Amendment Date became effective, the Registration Statement (whichever is laterother than the financial statements and appraisal, financial and statistical data included therein, as to which no opinion need be rendered) andcomplied as to form in all material respects with the requirements of the 1933 Act, in connection with any Terms Agreement, subsequent the 1933 Act Regulations and the Conversion Regulations.
(xvi) The Common Stock conforms to the date description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xvii) To the best knowledge of such Terms Agreementcounsel, there shall not have occurred any of the following: (i) trading are no legal or quotation in any securities issued governmental proceedings pending or guaranteed by threatened against or affecting the Company or the Operating Partnership shall have been suspended or limited by the Commission or by the Exchange; (ii) trading in securities generally on the Exchange shall have been suspended or limited, or minimum or maximum prices shall have been generally established on any of such stock exchange by the Commission or FINRA; (iii) a general banking moratorium shall have been declared by federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services Bank which are required to be disclosed in the United States has occurred; or Registration Statement and Prospectus, other than those disclosed therein.
(ivxviii) there shall have occurred any outbreak or escalation of national or international hostilities or any crisis or calamity, or any change in the United States or international financial markets, or any substantial change or development involving a prospective substantial change in United States’ or international political, financial or economic conditions, as in the judgment of the Agent is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares in the manner and on the terms described The information in the Prospectus under "First Federal Bancshares' Dividend Policy," "The Conversion," "Regulation and the Disclosure Package or to enforce contracts for the sale Supervision," "Restrictions on Acquisition of securities.
(j) The Exchange shall have approved the Shares for listing, subject only to official notice First Federal Bancshares and First Federal Bank," "Description of issuance, First Federal Bancshares Stock," and satisfactory evidence "Description of such action shall have been provided First Federal Bank Stock," to the Agentextent that it constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by them and is correct in all material respects.
(k) On or prior to each Delivery Date, the Company shall have furnished to the Agent such further certificates and documents as the Agent may reasonably request.
(l) In the case of any Terms Agreement, any additional conditions specified therein to the obligations of the Agent thereunder shall have been satisfied as of the dates required. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Agent.
Appears in 1 contract
Samples: Agency Agreement (First Federal Bancshares Inc /De)
Conditions of Agent’s Obligations. The obligations of the Agent hereunder with respect to any Shares that the Company has instructed the --------------------------------- Agent to sell the Stock as agent and provided herein shall be subject to the obligations accuracy, as of the Agent hereunder date hereof, and under any Terms Agreement with respect to any Shares that the Agent has agreed to purchase or has the option to purchase as principal pursuant to such Terms Agreement are subject to (i) the accuracy of each Settlement Date, of the representations and warranties of the Company and the Operating Partnership contained herein, (a) as of the date of this Agreement, (b) as of the date such instructions are given to the Agent or the date of such Terms Agreement, as the case may be, (c) as of each subsequent Registration Statement Amendment Date and Company Periodic Report Date and (d) as of each Applicable Time and Delivery Date with respect to such Shares, (ii) the accuracy of the statements of the Company and the Operating Partnership made in any certificates pursuant to the provisions hereof, and (iii) the performance by the Company and the Operating Partnership of their respective covenants and other its obligations hereunder and, if applicable, under such Terms Agreement, and to each of the following additional terms and conditions:
(a) The Company shall have filed the Prospectus and, in the case of any offering or sale of Shares pursuant to a Terms Agreement, the applicable preliminary prospectus with the Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act (without giving effect to Rule 424(b)(8)). The Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act in connection with the issuance and sale of the Shares, in each case used or referred to after the date hereof, within the applicable time periods prescribed for such filings under such Rule 433. No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or preventing or suspending the use of any preliminary prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding or examination for such that purpose shall have been instituted or, to the knowledge of the Company or the Agent, threatened by the Commission; , and any request of the Commission for inclusion of additional information (to be included in the Registration Statement, any preliminary prospectus Statement or the Prospectus or otherwise otherwise) shall have been complied with; the Commission shall not have notified the Company of any objection with to the use of the form of the Registration Statement or any post-effective amendment thereto; the Company shall not have received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to the use of the automatic shelf registration statement form; and FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements;Commission's satisfaction.
(b) The Agent shall not have discovered and disclosed to advised the Company that the Registration Statement, the Prospectus Statement or the Disclosure PackageProspectus, or any amendment or supplement thereto relating to the Sharesthereto, contains an untrue statement of a fact which, that in the judgment of Sidley Austin LLPAgent's opinion is material, counsel for the Agents, is material or omits to state a fact which, that in the judgment of such counsel, Agent's opinion is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate and partnership proceedings and other legal matters incident Except as contemplated in the Prospectus, subsequent to the authorizationrespective dates as of which information is given in the Registration Statement and the Prospectus, form and validity there shall not have been any material change, on a consolidated basis, in the capital stock of the Sales AgreementsCompany and its subsidiaries, or any Terms Agreementsmaterial adverse change, or any development that may reasonably be expected to cause a material adverse change, in the Sharescondition (financial or other), the Registration Statementbusiness, any preliminary prospectusprospects, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement, any net worth or results of operations of the Other Sales Agreements Company and any Terms Agreements, and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Agents, and the Company shall have furnished to such counsel all documents and information that they may reasonably require for the purposes of enabling them to pass upon such matters, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements herein containedits subsidiaries.
(d) The Agent shall have received at every date specified in Section 4(l) hereof, opinions of Company Counsel, dated as of such date, to the effect that:
(i) The Company is a corporation duly incorporated and existing under and by virtue of the laws of the State of Maryland and is in good standing with the State Department of Assessments and Taxation, 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 where such qualification is required, except where the failure to so qualify would not have a material adverse effect on the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise;
(ii) Each "significant subsidiary" (as such term is defined in Rule 1-02 of Regulation S-X under the Act) of the Company has been duly incorporated and has corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement and Prospectus; each of the Company's significant subsidiaries is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation; and all of the issued outstanding capital stock of each significant subsidiary of the Company has been duly authorized and validly issued, is fully paid and nonassessable, is owned by the Company, directly or indirectly, except for the Common Stock of Impac Funding Corporation, free and clear of any mortgage, pledge, lien, encumbrance, claim or equity;
(iii) The shares of Stock have been duly and validly authorized, and, when issued and delivered to and paid for by the purchasers thereof pursuant to this Agreement, will be fully paid and nonassessable and conform in all material respects to the description thereof in the Prospectus under the caption "Capital Stock" and the stockholders of the Company have no preemptive rights with respect to the Stock; all corporate action required to be taken for the authorization, issuance and sale of the Stock has been validly and sufficiently taken; and the shares of Stock are the subject of an effective registration statement permitting their sale in the manner contemplated by this Agreement;
(iv) The Registration Statement has become effective under the Act; to the knowledge of such counsel no stop order suspending the effectiveness of the Registration Statement has been issued and, to our knowledge, no proceeding for that purpose has been instituted or threatened by the Commission;
(v) The Registration Statement, when it became effective, and the Prospectus and any amendment or supplement thereto, on the date of filing thereof with the Commission (and at each Filing Date on or prior to the date of the opinion), complied as to form in all material respects with the requirements of the Act and the Rules and Regulations; and the documents incorporated by reference in the Registration Statement or Prospectus or any amendment or supplement thereto, when filed with the Commission under the Exchange Act, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder (except that we express no opinion as to financial statements, schedules and other financial and statistical data contained in the Registration Statement or the Prospectus, or incorporated by reference therein);
(vi) The description in the Registration Statement and Prospectus of Xxxxxxx Xxxxx LLPstatutes, Maryland legal and governmental proceedings, contracts and other documents are accurate in all material respects and fairly present the information required to be shown; and such counsel for does 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 Operating Partnershipconsummation 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, addressed or constitute a default under, any agreement or instrument known to such Agent 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 delivered 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 dated on each date specified 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 Section 3(a)(xiii) and 3(a)(xxvii) hereof, connection with the form issuance or sale of which is attached hereto as Exhibit A and (ii) the opinion or opinions and letter or letters of Xxxxxx & Xxxxxxx LLP, special corporate and tax counsel for Stock by the Company, addressed except such as have been obtained under the Act and such as may be required under state securities or blue sky laws or rules of the NASD in connection with the sale and distribution of the Stock by the Agent;
(ix) Except as may be disclosed in the Prospectus, 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
(x) Commencing with the Company's taxable year ended December 31, 1995, the Company has been organized in conformity with the requirements for qualification as a "real estate investment trust," and its proposed method of operation has enabled and will enable it to meet the requirements for qualification and taxation as a "real estate investment trust" under the Code. The information presented in the Registration Statement under the caption "Federal Income Tax Considerations," to the Agent and delivered and dated on each date specified extent it constitutes matters of law or legal conclusions, is accurate in Section 3(a)(xiii) and 3(a)(xxvii) hereof, the form of which is attached hereto as Exhibit B.all material respects.
(exi) The Agent shall have received from Sidley Austin LLPCompany is not, counsel for and upon the Agentissuance and sale of the Stock and the application of the net proceeds therefrom as described in the Prospectus will not be, an "investment company" within the meaning of the 1940 Act. In addition, such letter, addressed counsel shall state that such counsel has no reason to the Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, with respect 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 Disclosure Package date of filing thereof with the Commission and other related matters as at each Filing Date on or prior to the Agent may reasonably requestdate of the opinion, and included an untrue statement of a material fact or omitted to state a material fact necessary to make the Company shall have furnished to statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel such need express no opinion as to the financial statements or other financial and statistical data included in any of the documents and information as they may reasonably request to enable them to pass upon such mattersmentioned in this paragraph.
(fe) At the dates specified in Section 3(a)(xiv) and 3(a)(xxvii4(m) hereof, the Agent shall have received a letter from Deloitte & Touche KPMG Peat Marwick LLP, independent public accountants for the Company and the Operating PartnershipCompany, or other independent public accountants satisfactory to the Agent, dated the date of nationally recognized standing for the Company and the Operating Partnership, a letterdelivery thereof, in form and substance satisfactory to the Agent, addressed to the Agent and dated the date of delivery thereof .
(if) confirming that they are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted thereunder by the Commission and the Public Company Accounting Oversight Board (United States), and (ii) stating, as of the date of delivery thereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus and the Disclosure Package and any amendments or supplements thereto, as of a date not more than three days prior to the date of delivery thereof), the conclusions and findings of such firm with respect to the financial statements of the Company, the Operating Partnership and any other properties, businesses or entities (including any pro forma financial statements) and certain financial information regarding the Company, the Operating Partnership and, if applicable, such other properties, businesses or entities contained or incorporated by reference in the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus (other than any electronic road show) and the Prospectus and any amendments or supplements thereto, as customarily covered by accountants’ “comfort letters” in connection with public offerings. If the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus contains or incorporates by reference the financial statements of any properties, businesses or entities whose independent public accountants are not the same as the Company’s independent public accountants, then, at the dates specified in Section 3(a)(xiv) and 3(a)(xxvii) hereof, the The Agent shall have received from an independent public accountant of nationally recognized standing, a letter, in form and substance satisfactory to the Agent, addressed to the Agent and dated the date of delivery thereof, as to the matters set forth in the preceding sentence but modified to relate solely to such financial statements and any other financial information contained or incorporated by reference in the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus and any amendments or supplements thereto relating to such properties, businesses or entities, as the case may be.
(g) Since the commencement of the offering of the Shares under this Agreement or, if later, since the most recent Registration Statement Amendment Date or Company Periodic Report Date (whichever is later) and, in the case of the sale of Shares pursuant to a Terms Agreement to which the Agent is a party, since the date of such Terms Agreement:
(A) in the judgment of the Agent there shall not have occurred any Material Adverse Change;
(B) there shall not have been any change, increase or decrease specified in the letter or letters referred to in subsection (f) of this Section 5 or Section 3(a)(xiv) which is, in the sole judgment of the Agent, so material and adverse as to make it impractical or inadvisable to proceed with the offering, sale or delivery of the Shares on the terms and in the manner contemplated in the Registration Statement, the Disclosure Package and the Prospectus; and
(C) (i) no downgrading shall have occurred in the rating accorded to any securities issued or guaranteed by the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and (ii) no such organization shall have publicly announced that it has under surveillance or reviewa certificate, or has changed its outlook with respect to its rating ofcertificates, any securities of or guaranteed signed by the Company or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading).
(i) The Company shall have furnished to the Agent a certificate of an officer in a form satisfactory to the Agent stating the minimum gross sales price per share for sale of Shares pursuant to this Agreement and the other information specified in clauses (x) and (y) of Section 2(b) and, in the event of any change in such information, shall promptly provide the Agent with a new certificate of an officer setting forth such changed information (and the receipt of such certificate and any such new certificate shall have been confirmed by the Agent (which confirmation may be by facsimile transmission or electronic mail), and (ii) on each date specified in Section 3(a)(xii) and 3(a)(xxvii), the Company shall have furnished to the Agent a certificate to the effect set forth in Exhibit C attached hereto (and including any changes proposed by the Company reasonably satisfactory to the Agent and its counsel and such additional matters as the Agent may reasonably request) of the Chairman of the Board, Chief Executive Officer, the President or Chief Operating Officer a Vice President and by the principal financial or accounting officer of the Company, dated as of the next business day following each Filing Date (each, a "Certificate Date"), to the effect that, to their knowledge:
(i) The representations and warranties of the Company in this Agreement are true and correct as if made at and as of the Certificate 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 the Commencement Date and each such Certificate Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued, and no proceeding for that purpose has been instituted or is threatened, by the Commission;
(iii) Since the date of this Agreement there has occurred no event required to be set forth in an amendment or supplement to the Registration Statement or Prospectus that has not been so set forth and there has been no document required to be filed under the Exchange Act and the rules and regulations of the Commission thereunder that upon such filing would be deemed to be incorporated by reference in the Prospectus that has not been so filed; and
(iv) Since the date of this Agreement, there has not been any material adverse change, on a consolidated basis, in the business, financial condition or results of operations of the Company and its subsidiaries considered as one enterprise which has not been described in an amendment or supplement to the Chief Financial Officer Registration Statement or Chief Accounting Officer of the Company (1) on behalf of the Company itself and (2) in its capacity as general partner of the Operating PartnershipProspectus. In addition, on behalf each Certificate Date the certificate shall also state that the shares of the Operating Partnership.
(i) Subsequent Stock to the later of (i) the execution be sold on that date have been duly and delivery of this Agreement or (ii) the most recent Company Periodic Report Date or Registration Statement Amendment Date (whichever is later) and, in connection with any Terms Agreement, subsequent to the date of such Terms Agreement, there shall not have occurred any of the following: (i) trading or quotation in any securities issued or guaranteed validly authorized by the Company or and that all corporate action required to be taken for the Operating Partnership shall have authorization, issuance and sale of the Stock on that date has been suspended or limited by validly and sufficiently taken. The Company will furnish the Commission or by the Exchange; (ii) trading in securities generally on the Exchange shall have been suspended or limited, or minimum or maximum prices shall have been generally established on any Agent with such conformed copies of such stock exchange by the Commission or FINRA; (iii) a general banking moratorium shall have been declared by federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States has occurred; or (iv) there shall have occurred any outbreak or escalation of national or international hostilities or any crisis or calamityopinions, or any change in the United States or international financial marketscertificates, or any substantial change or development involving a prospective substantial change in United States’ or international political, financial or economic conditions, as in the judgment of the Agent is material letters and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares in the manner and on the terms described in the Prospectus and the Disclosure Package or to enforce contracts for the sale of securities.
(j) The Exchange shall have approved the Shares for listing, subject only to official notice of issuance, and satisfactory evidence of such action shall have been provided to the Agent.
(k) On or prior to each Delivery Date, the Company shall have furnished to the Agent such further certificates and other documents as the Agent may shall reasonably request.
(l) In the case of any Terms Agreement, any additional conditions specified therein to the obligations of the Agent thereunder shall have been satisfied as of the dates required. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Agent.
Appears in 1 contract
Samples: Sales Agency Agreement (Impac Mortgage Holdings Inc)
Conditions of Agent’s Obligations. The obligations of the Agent hereunder with respect to any Shares that the Company has instructed the Agent to sell as agent and the obligations of the Agent hereunder and under any Terms Agreement with respect to any Shares that the Agent has agreed to purchase or has the option to purchase as principal pursuant to such Terms Agreement are subject to (i) the accuracy in all material respects of the representations and warranties of the Company and the Operating Partnership contained herein, (a) as of herein on the date hereof and at the time of this Agreement, (b) as of the date such instructions are given to the Agent or the date of such Terms Agreement, as the case may be, (c) as of each subsequent Registration Statement Amendment Date purchase and Company Periodic Report Date and (d) as of each Applicable Time and Delivery Date with respect to such Shares, (ii) the accuracy of the statements of the Company and the Operating Partnership made in any certificates pursuant to the provisions hereof, and (iii) the performance by the Company and the Operating Partnership of their respective covenants and other its obligations hereunder and, if applicable, under such Terms Agreement, and to each of the following additional terms and conditionsconditions precedent:
(a) The Company shall have filed the Prospectus and, in the case of any offering or sale of Shares pursuant to a Terms Agreement, the applicable preliminary prospectus with the Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act (without giving effect to Rule 424(b)(8)). The Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act in connection with the issuance and sale of the Shares, in each case used or referred to after the date hereof, within the applicable time periods prescribed for such filings under such Rule 433. No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or preventing or suspending the use of any preliminary prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding or examination for such purpose shall have been instituted or threatened by the Commission; any request of the Commission for inclusion of additional information in the Registration Statement, any preliminary prospectus or the Prospectus or otherwise shall have been complied with; the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; the Company shall not have received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting furnish to the use Agent at the time of the automatic shelf registration statement form; and FINRA shall have raised no objection to the fairness and reasonableness purchase an opinion of the underwriting terms and arrangements;
(b) The Agent shall not have discovered and disclosed to the Company that the Registration Statement, the Prospectus or the Disclosure Package, or any amendment or supplement thereto relating to the Shares, contains an untrue statement of a fact which, in the judgment of Sidley Austin Xxxxx Xxxxxx & Xxxxxx LLP, counsel for the Agents, is material or omits to state a fact which, in the judgment of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate and partnership proceedings and other legal matters incident to the authorization, form and validity of the Sales Agreements, any Terms Agreements, the Shares, the Registration Statement, any preliminary prospectus, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement, any of the Other Sales Agreements and any Terms Agreements, and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Agents, and the Company shall have furnished to such counsel all documents and information that they may reasonably require for the purposes of enabling them to pass upon such matters, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements herein contained.
(d) The Agent shall have received (i) the opinion of Xxxxxxx Xxxxx LLP, Maryland counsel for the Company and the Operating Partnership, addressed to such Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, the form of which is attached hereto as Exhibit A and (ii) the opinion or opinions and letter or letters of Xxxxxx & Xxxxxxx LLP, special corporate and tax U.S. securities counsel for the Company, addressed to the Agent and delivered Agent, and dated on each date specified the time of purchase, in Section 3(a)(xiii) and 3(a)(xxvii) hereof, the form of which is attached hereto as set forth on Exhibit B.B hereto;
(eb) The the Company shall furnish to the Agent shall have received from Sidley Austin LLPat the time of purchase an opinion of Lackowicz Xxxxx & Xxxxxxx, counsel for the Agent, such letterCompany, addressed to the Agent and delivered Agent, and dated the time of purchase, in the form set forth on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, with respect to the Registration Statement, the Prospectus and the Disclosure Package and other related matters as the Agent may reasonably request, and the Company shall have furnished to such counsel such documents and information as they may reasonably request to enable them to pass upon such matters.Exhibit C hereto;
(fc) At the dates specified in Section 3(a)(xiv) and 3(a)(xxvii) hereof, the Agent shall have received from Deloitte & Touche LLPLLP letters dated, independent public accountants respectively, the date of this Agreement and the time of purchase, and addressed to the Agent in the form and substance heretofore approved by, or otherwise satisfactory to, the Agent
(d) no Prospectus or amendment or supplement to the Registration Statement or the Prospectus, including documents deemed to be incorporated by reference therein, shall have filed to which you reasonably object in writing;
(e) prior to the time of purchase, (i) the Prospectus Supplement shall have been duly filed with the Commission in accordance with Rule 424(b), (ii) no stop order 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, (iii) no order preventing or suspending the use of the Prospectus Supplement shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission, (iv) no order having the effect of ceasing or suspending the distribution of the Units or any other securities of the Company shall have been issued by the Commission or AMEX and no proceedings for that purpose shall have been instituted or shall be pending or, to the knowledge of the Company, contemplated by the Commission or AMEX, (v) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and (vi) the Prospectus and all amendments or supplements thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they are made, not misleading;
(f) between the time of execution of this Agreement and the time of purchase, no material adverse change or any development involving a prospective material adverse change in business, properties, management, financial condition, operations or results of operation of the Company and the Operating PartnershipSubsidiaries, taken as a whole, shall occur or other independent public accountants of nationally recognized standing for the Company and the Operating Partnershipbecome known, a letter, in form and substance satisfactory to the Agent, addressed to the Agent and dated the date of delivery thereof (i) confirming that they are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted thereunder by the Commission and the Public Company Accounting Oversight Board (United States), and (ii) stating, as of the date of delivery thereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus and the Disclosure Package and any amendments or supplements thereto, as of a date not more than three days prior to the date of delivery thereof), the conclusions and findings of such firm with respect to the financial statements of the Company, the Operating Partnership and any other properties, businesses or entities (including any pro forma financial statements) and certain financial information regarding the Company, the Operating Partnership and, if applicable, such other properties, businesses or entities contained or incorporated by reference in the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus (other than any electronic road show) and the Prospectus and any amendments or supplements thereto, as customarily covered by accountants’ “comfort letters” in connection with public offerings. If the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus contains or incorporates by reference the financial statements of any properties, businesses or entities whose independent public accountants are not the same as the Company’s independent public accountants, then, at the dates specified in Section 3(a)(xiv) and 3(a)(xxvii) hereof, the Agent shall have received from an independent public accountant of nationally recognized standing, a letter, in form and substance satisfactory to the Agent, addressed to the Agent and dated the date of delivery thereof, as to the matters set forth in the preceding sentence but modified to relate solely to such financial statements and any other financial information contained or incorporated by reference in the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus and any amendments or supplements thereto relating to such properties, businesses or entities, as the case may be.
(g) Since the commencement of the offering of the Shares under this Agreement or, if later, since the most recent Registration Statement Amendment Date or Company Periodic Report Date (whichever is later) and, in the case of the sale of Shares pursuant to a Terms Agreement to which the Agent is a party, since the date of such Terms Agreement:
(A) in the judgment of the Agent there shall not have occurred any Material Adverse Change;
(B) there shall not have been any change, increase or decrease specified in the letter or letters referred to in subsection (f) of this Section 5 or Section 3(a)(xiv) which iswhich, in the sole judgment of the Agent, so material and adverse as to make makes it impractical impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares Offering on the terms and in the manner contemplated in the Registration Statement, the Disclosure Package and by the Prospectus; and;
(Cg) (i) no downgrading shall have occurred in the rating accorded to any securities issued or guaranteed by the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to its rating of, any securities of or guaranteed by the Company or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading).
(i) The Company shall have furnished to the Agent a certificate of an the Company, signed by the principal financial or accounting officer in a form satisfactory of the Company, dated the date of the time of purchase, to the Agent stating effect that the minimum gross sales price per share for sale signers of Shares pursuant such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that to the other information specified knowledge of such person after reasonable inquiry:
(1) the representations and warranties of the Company in clauses this Agreement are true and correct in all material respects on and as of the time of purchase with the same effect as if made at the time of purchase 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 the time of purchase,
(x2) the Registration Statement has become effective and no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to such person’s knowledge, threatened, and
(y3) since the date of Section 2(b) and, the most recent financial statements included or incorporated by reference in the event of Prospectus, except as disclosed in the Prospectus there has been no material adverse change or any development involving a prospective material adverse change in such informationbusiness, shall promptly provide properties, management, financial condition, operations or results of operation of the Agent with Company or the Subsidiaries, taken as a new certificate of an officer setting forth such changed information whole;
(and the receipt of such certificate and any such new certificate shall have been confirmed by the Agent (which confirmation may be by facsimile transmission or electronic mail), and (iih) on each date specified in Section 3(a)(xii) and 3(a)(xxvii), the Company shall have furnished to the Agent a certificate to the effect you Lock-Up Agreements in form and substance as set forth in on Exhibit C attached hereto (D hereto, duly executed by R. Xxxxx Xxxxxxx, Xxxxxx Xxxxxxxx and including any changes proposed Xxxxxxx Xxxxx, except as expressly agreed to by the Company reasonably satisfactory to the Agent and its counsel and such additional matters as the Agent may reasonably request) of the Chairman of the Board, Chief Executive Officer, President or Chief Operating Officer of the Company and the Chief Financial Officer or Chief Accounting Officer of the Company (1) on behalf of the Company itself and (2) in its capacity as general partner of the Operating Partnership, on behalf of the Operating Partnership.you; and
(i) Subsequent to the later of (i) the execution and delivery of this Agreement or (ii) the most recent Company Periodic Report Date or Registration Statement Amendment Date (whichever is later) and, in connection with any Terms Agreement, subsequent to the date of such Terms Agreement, there shall not have occurred any of the following: (i) trading or quotation in any securities issued or guaranteed by the Company or the Operating Partnership shall have been suspended or limited by the Commission or by the Exchange; (ii) trading in securities generally on the Exchange shall have been suspended or limited, or minimum or maximum prices shall have been generally established on any of such stock exchange by the Commission or FINRA; (iii) a general banking moratorium shall have been declared by federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States has occurred; or (iv) there shall have occurred any outbreak or escalation of national or international hostilities or any crisis or calamity, or any change in the United States or international financial markets, or any substantial change or development involving a prospective substantial change in United States’ or international political, financial or economic conditions, as in the judgment of the Agent is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares in the manner and on the terms described in the Prospectus and the Disclosure Package or to enforce contracts for the sale of securities.
(j) The Exchange shall have approved the Shares for listing, subject only to official notice of issuance, and satisfactory evidence of such action shall have been provided to the Agent.
(k) On or prior to each Delivery Date, the Company shall have furnished to the Agent you such further other documents and certificates and documents as the Agent may reasonably request.
(l) In the case of any Terms Agreement, any additional conditions specified therein to the obligations of the Agent thereunder shall have been satisfied as of the dates required. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Agent.
Appears in 1 contract
Samples: Agency Agreement (Apollo Gold Corp)
Conditions of Agent’s Obligations. The obligations of the Agent hereunder with respect to any Shares that the Company has instructed the Agent to sell as agent and the obligations of the Agent hereunder and under any Terms Agreement with respect to any Shares that the Agent has agreed to purchase or has the option to purchase as principal pursuant to such Terms this Agreement are subject to (i) the accuracy of the representations and warranties of the Company and the Operating Partnership contained herein, (a) as herein or in certificates of the date of this Agreement, (b) as of the date such instructions are given to the Agent or the date of such Terms Agreement, as the case may be, (c) as of each subsequent Registration Statement Amendment Date and Company Periodic Report Date and (d) as of each Applicable Time and Delivery Date with respect to such Shares, (ii) the accuracy of the statements officers of the Company and the Operating Partnership made in any certificates delivered pursuant to the provisions hereof, as of the date hereof, the Initial Closing Time and (iii) each subsequent Closing Time, to the performance by the Company and the Operating Partnership of their respective covenants and other its obligations hereunder and, if applicable, under such Terms Agreement, and to each of the following additional terms and further conditions, except the extent waived in writing by the Agent:
(a) The Company Registration Statement shall have filed become effective not later than 5:30 P.M. on the Prospectus anddate of this Agreement or, in the case of any offering or sale of Shares pursuant to a Terms Agreement, the applicable preliminary prospectus with the Commission (including Agent's consent, at a later time and date not later, however, than 5:30 P.M. on the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act (without giving effect to Rule 424(b)(8)). The Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act in connection with the issuance and sale of the Shares, in each case used or referred to after first business day following the date hereof, within or at such later time or on such later date as the applicable time periods prescribed for such filings under such Rule 433. No Agent may agree to in writing; at the Closing Time, no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or preventing or suspending the use of any preliminary prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been issued under the 1933 Act and no proceeding or examination proceedings for such that purpose shall have been instituted or threatened shall be pending or, to the Agent's knowledge or the knowledge of the Company, shall be contemplated by the Commission; , and any request on the part of the Commission for inclusion of additional information in the Registration Statement, any preliminary prospectus or the Prospectus or otherwise shall have been complied with; with to the satisfaction of counsel for the Agent. If the Company has elected to rely upon Rule 430A, a prospectus containing the Rule 430A Information shall have been filed with the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement in accordance with Rule 424(b) (or any a post-effective amendment thereto; the Company shall not have received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to the use of the automatic shelf registration statement form; and FINRA providing such information shall have raised no objection to been filed and declared effective in accordance with the fairness and reasonableness requirements of the underwriting terms and arrangements;Rule 430A).
(b) The Agent shall not have discovered and disclosed to At the Company that the Registration Statement, the Prospectus or the Disclosure Package, or any amendment or supplement thereto relating to the Shares, contains an untrue statement of a fact which, in the judgment of Sidley Austin LLP, counsel for the Agents, time this Agreement is material or omits to state a fact which, in the judgment of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate and partnership proceedings and other legal matters incident to the authorization, form and validity of the Sales Agreements, any Terms Agreements, the Shares, the Registration Statement, any preliminary prospectus, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement, any of the Other Sales Agreements and any Terms Agreements, and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Agents, and the Company shall have furnished to such counsel all documents and information that they may reasonably require for the purposes of enabling them to pass upon such matters, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements herein contained.
(d) The Agent shall have received (i) the opinion of Xxxxxxx Xxxxx LLP, Maryland counsel for the Company and the Operating Partnership, addressed to such Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, the form of which is attached hereto as Exhibit A and (ii) the opinion or opinions and letter or letters of Xxxxxx & Xxxxxxx LLP, special corporate and tax counsel for executed by the Company, addressed to the Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, the form of which is attached hereto as Exhibit B.
(e) The Agent shall have received from Sidley Austin LLP, counsel for the Agent, such letter, addressed to the Agent and delivered and dated on each date specified in Section 3(a)(xiii) and 3(a)(xxvii) hereof, with respect to the Registration Statement, the Prospectus and the Disclosure Package and other related matters as the Agent may reasonably request, and the Company shall have furnished to such counsel such documents and information as they may reasonably request to enable them to pass upon such matters.
(f) At the dates specified in Section 3(a)(xiv) and 3(a)(xxvii) hereof, the Agent shall have received from Deloitte Hacker, Xxxxxxx & Touche LLPXxxxx, independent public accountants for the Company and the Operating Partnership, or other independent public accountants of nationally recognized standing for the Company and the Operating PartnershipP.A., a letterletter or letters, in form and substance satisfactory to the Agent, addressed to the Agent and dated the date of delivery thereof (i) confirming that they are independent public accountants within the meaning this Agreement containing statements and information of the Securities Act type ordinarily included in accountant's "comfort letters" to underwriters and the applicable rules and regulations adopted thereunder by the Commission and the Public Company sales agents delivered according to Statement of Financial Accounting Oversight Board Standards No. 72 (United Statesor any successor bulletin), and (ii) stating, as of the date of delivery thereof (or, with respect to matters involving changes or developments since the respective dates as of which specified audited financial statements and other financial information is given in the Prospectus and the Disclosure Package and any amendments or supplements thereto, as of a date not more than three days prior to the date of delivery thereof), the conclusions and findings of such firm with respect to the financial statements of the Company, the Operating Partnership and any other properties, businesses or entities (including any pro forma financial statements) and certain financial information regarding the Company, the Operating Partnership and, if applicable, such other properties, businesses or entities contained or incorporated by reference in the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus (other than any electronic road show) Statement and the Prospectus Prospectus.
(c) At the Initial Closing Time and any amendments or supplements thereto, as customarily covered by accountants’ “comfort letters” in connection with public offerings. If the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus contains or incorporates by reference the financial statements of any properties, businesses or entities whose independent public accountants are not the same as the Company’s independent public accountants, then, at the dates specified in Section 3(a)(xiv) and 3(a)(xxvii) hereofeach subsequent Closing Time, the Agent shall have received from an independent public accountant of nationally recognized standing, a letter, in form and substance satisfactory to the Agent, addressed to the Agent and dated the date of delivery thereof, as to the matters set forth in the preceding sentence but modified to relate solely to such financial statements and any other financial information contained or incorporated by reference in the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus and any amendments or supplements thereto relating to such properties, businesses or entities, as the case may be.
(g) Since the commencement of the offering of the Shares under this Agreement or, if later, since the most recent Registration Statement Amendment Date or Company Periodic Report Date (whichever is later) and, in the case of the sale of Shares pursuant to a Terms Agreement to which the Agent is a party, since the date of such Terms Agreement:
(A) in the judgment of the Agent there shall not have occurred any Material Adverse Changereceived;
(B) there shall not have been any change, increase or decrease specified in the letter or letters referred to in subsection (f) of this Section 5 or Section 3(a)(xiv) which is, in the sole judgment of the Agent, so material and adverse as to make it impractical or inadvisable to proceed with the offering, sale or delivery of the Shares on the terms and in the manner contemplated in the Registration Statement, the Disclosure Package and the Prospectus; and
(C) (i) no downgrading shall have occurred in the rating accorded to any securities issued or guaranteed by the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to its rating of, any securities of or guaranteed by the Company or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading).
(i) The Company shall have furnished to the Agent a certificate of an officer in a form satisfactory to the Agent stating the minimum gross sales price per share for sale of Shares pursuant to this Agreement and the other information specified in clauses (x) and (y) of Section 2(b) andfavorable opinion, in the event of any change in such information, shall promptly provide the Agent with a new certificate of an officer setting forth such changed information (and the receipt of such certificate and any such new certificate shall have been confirmed by the Agent (which confirmation may be by facsimile transmission or electronic mail), and (ii) on each date specified in Section 3(a)(xii) and 3(a)(xxvii), the Company shall have furnished to the Agent a certificate to the effect set forth in Exhibit C attached hereto (and including any changes proposed by the Company reasonably satisfactory to the Agent and its counsel and such additional matters as the Agent may reasonably request) of the Chairman of the Board, Chief Executive Officer, President or Chief Operating Officer of the Company and the Chief Financial Officer or Chief Accounting Officer of the Company (1) on behalf of the Company itself and (2) in its capacity as general partner of the Operating Partnership, on behalf of the Operating Partnership.
(i) Subsequent to the later of (i) the execution and delivery of this Agreement or (ii) the most recent Company Periodic Report Date or Registration Statement Amendment Date (whichever is later) and, in connection with any Terms Agreement, subsequent to the date of such Terms Agreement, there shall not have occurred any of the following: (i) trading or quotation in any securities issued or guaranteed by the Company or the Operating Partnership shall have been suspended or limited by the Commission or by the Exchange; (ii) trading in securities generally on the Exchange shall have been suspended or limited, or minimum or maximum prices shall have been generally established on any of such stock exchange by the Commission or FINRA; (iii) a general banking moratorium shall have been declared by federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States has occurred; or (iv) there shall have occurred any outbreak or escalation of national or international hostilities or any crisis or calamity, or any change in the United States or international financial markets, or any substantial change or development involving a prospective substantial change in United States’ or international political, financial or economic conditions, as in the judgment of the Agent is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares in the manner and on the terms described in the Prospectus and the Disclosure Package or to enforce contracts for the sale of securities.
(j) The Exchange shall have approved the Shares for listing, subject only to official notice of issuance, and satisfactory evidence of such action shall have been provided to the Agent.
(k) On or prior to each Delivery Date, the Company shall have furnished to the Agent such further certificates and documents as the Agent may reasonably request.
(l) In the case of any Terms Agreement, any additional conditions specified therein to the obligations of the Agent thereunder shall have been satisfied dated as of the dates required. All opinionsInitial Closing Time and each subsequent Closing Time, lettersof Xxxxx & Xxxxxxxxx, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with P.A., counsel for the provisions hereof only if they are Company, in form and substance reasonably satisfactory to counsel for the Agent, substantially in the form set forth in Exhibit C.
(ii) The favorable opinion, dated as of the Initial Closing Time and each subsequent Closing Time, of Xxxxx Xxxxxxxxx, PA, counsel for the Agent, in form and substance satisfactory to the Agent.
(iii) The letters from Hacker, Xxxxxxx & Xxxxx P.A. dated the Effective Date, the Initial Closing Time and each subsequent Closing Time, respectively, addressed to the Agent in the form reasonably approved by the Agent, containing statements and information of the type ordinarily included in accountant's "comfort letters" to underwriters and sales agents delivered according to Statement of Financial Accounting Standards No. 72 (or any successor bulletin), with respect to the audited financial statements and the other financial information in the Registration Statement and the Prospectus.
(d) At the Initial Closing Time and each subsequent Closing Time, (i) the Registration Statement and the Prospectus, as may then be amended or supplemented, 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, (ii) there shall not have been, since the respective dates as of which information is given in the Prospectus, any material adverse change in the condition (financial or otherwise), earnings, business affairs or assets of thc Company or the Subsidiaries, whether or not arising in the ordinary course of business, (iii) no action, suit or proceeding at law or in equity shall be pending or, to the Knowledge of the Company, threatened against the Company or any Subsidiary that would be required to be set forth in the Prospectus other than as set forth therein and no proceedings shall be pending or, to the Knowledge of the Company, threatened against the Company or any Subsidiary before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding could reasonably be expected to have a Material Adverse Effect, other than set forth in the Prospectus, (iv) the Company shall have complied, in all material respects, with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Initial Closing Time and each subsequent Closing Time, as applicable, (v) the other representations and warranties of the Company set forth in Section 2(a) of this Agreement shall be accurate in all respects as though expressly made at and as of the Initial Closing Time and each subsequent Closing Time, as applicable, and (vi) no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceeding for that purpose shall have been initiated or, to the Knowledge of the Company, threatened by the SEC or any bank regulatory agency. At the Initial Closing Time and each subsequent Closing Time, the Agent shall have received a certificate of the President and of the Chief Financial Officer of the Company, dated as of the Initial Closing Time and each subsequent Closing Time, as applicable, to such effect.
(e) At the Initial Closing Time and each subsequent Closing Time, counsel for the Agent shall have been furnished with all such documents, certificates and opinions as they may request for the purpose of enabling them to pass upon the issuance and sale of the Shares as contemplated in this Agreement and the matters referred to in Section 5 of this Agreement, and in order to evidence the accuracy and completeness of any of the representations, warranties or statements of the Company, the performance of any of the covenants of the Company, or the fulfillment of any of the conditions herein contained; and all proceedings taken by the Company at or prior to the Initial Closing Time and each subsequent Closing Time in connection with the authorization, issuance and sale of the Shares as contemplated in this Agreement shall be satisfactory in form and substance to the Agent and its counsel.
(f) The Company shall have paid, or made arrangements satisfactory to the Agent for the payment of, all such expenses as may be required by Section 4 hereof.
(g) The Shares shall have been qualified or registered for sale, or are subject to an available exemption from such qualification or registration, under the Blue Sky or securities laws of such jurisdictions as shall have been specified by the Agent, and the Offering contemplated by this Agreement shall have been cleared by the NASD.
(h) If any of the conditions specified in this Section 5 shall not have been fulfilled when and as required by this Agreement to be fulfilled, this Agreement may be terminated by the Agent on notice to the Company at any time at or prior to the Initial Closing Time or any subsequent Closing Time, or, if the Agent so elects, the Agent may waive in writing any such conditions that have not been fulfilled, or may extend the time of their fulfillment. If the Agent terminates this Agreement as provided herein, such termination shall be without liability of any party to any other party, except as provided in Section 4. Notwithstanding any such termination, the provisions of Sections 4, 6, 7 and 11 of this Agreement shall remain in effect.
Appears in 1 contract
Samples: Sales Agent Agreement (First Community Bank Corp of America)
