Conditions to the Agent’s Obligations. The obligations of the Agent hereunder shall be subject to the continuing accuracy and completeness of the representations and warranties made by the Company, the Adviser and the Administrator herein, to the due performance by the Company of its obligations hereunder, and to the continuing satisfaction (or waiver by the Agent in its sole discretion) of the following additional conditions: (a) The Registration Statement shall have become effective and shall be available for the sale of all Shares to be issued and sold hereunder. (b) None of the following events shall have occurred and be continuing: (i) receipt by the Company of any request for additional information from the Commission or any other federal or state governmental authority during the period of effectiveness of the Registration Statement, the response to which would require any amendments or supplements to the Registration Statement or the Prospectus relating to or affecting the Shares; (ii) the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, including any notice objecting to the use of the Registration Statement or order pursuant to Section 8(e) of the 1940 Act having been issued and proceedings therefor initiated, or to the knowledge of the Company, threatened by the Commission; (iii) receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (iv) the occurrence of any event that makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or Prospectus so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (v) the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate. (c) There shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (after giving effect to any amendment or supplement thereto) the effect of which, is, in the reasonable judgment of the Agent, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (after giving effect to any amendment thereof) and the Prospectus Supplement (after giving effect to any amendment or supplement thereto). (d) The Agent shall have received the opinion of Company Counsel required to be delivered pursuant Section 6(o) on or before the date on which such deliveries of such opinions are required pursuant to Section 6(o).
Appears in 11 contracts
Samples: Sales Agreement (Gladstone Investment Corporation\de), Sales Agreement (Gladstone Investment Corporation\de), Sales Agreement (Gladstone Investment Corporation\de)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder shall be subject to the continuing accuracy and completeness of the representations and warranties made by the Company, the Adviser and the Administrator herein, to the due performance by the Company of its obligations hereunder, and to the continuing satisfaction (or waiver by the Agent in its sole discretion) of the following additional conditions:
(a) The Registration Statement shall have become effective and shall be available for the sale of all Shares to be issued and sold hereunder.
(b) None of the following events shall have occurred and be continuing: (i) receipt by the Company of any request for additional information from the Commission or any other federal or state governmental authority during the period of effectiveness of the Registration Statement, the response to which would require any amendments or supplements to the Registration Statement or the Prospectus relating to or affecting the Shares; (ii) the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, including any notice objecting to the use of the Registration Statement or order pursuant to Section 8(e) of the 1940 Investment Company Act having been issued and proceedings therefor initiated, or to the knowledge of the Company, threatened by the Commission; (iii) receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (iv) the occurrence of any event that makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or Prospectus so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (v) the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate.
(c) There shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and Subsidiaries its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (after giving effect to any amendment or supplement thereto) the effect of which, is, in the reasonable judgment of the Agent, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (after giving effect to any amendment thereof) and the Prospectus Supplement (after giving effect to any amendment or supplement thereto).
(d) The Agent shall have received the opinion opinions of Company Counsel and General Counsel required to be delivered pursuant Section 6(o) on or before the date on which such deliveries delivery of such opinions are is required pursuant to Section 6(o).
(e) The Agent shall have received the opinion of Maryland Counsel required to be delivered pursuant Section 6(p) on or before the date on which such delivery of such opinion is required pursuant to Section 6(p).
(f) The Agent shall have received the Comfort Letter required to be delivered pursuant Section 6(q) on or before the date on which such delivery of such letter is required pursuant to Section 6(q).
(g) The Agent shall have received the certificates required to be delivered pursuant to Section 6(n) and Section 6(r) on or before the date on which delivery of such certificate is required pursuant to Section 6(n) and Section 6(r), respectively.
(h) The Agent shall have received the opinion of Agent Counsel required to be delivered pursuant Section 6(s) on or before the date on which such delivery of such opinion is required pursuant to Section 6(s).
(i) Trading in the Common Stock shall not have been suspended on NASDAQ and the Shares shall have been approved for listing on NASDAQ, subject only to notice of issuance.
(j) All filings with the Commission required by Rule 497 under the 1933 Act to have been filed prior to the sale of Shares hereunder shall have been made within the applicable time period prescribed for such filing by Rule 497.
(k) FINRA shall have confirmed that it has no objection with respect to the fairness and reasonableness of the placement terms and arrangements set forth herein.
Appears in 9 contracts
Samples: Equity Distribution Agreement (Prospect Capital Corp), Equity Distribution Agreement (Prospect Capital Corp), Equity Distribution Agreement (Prospect Capital Corp)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder shall be subject to the continuing accuracy and completeness of the representations and warranties made by the Company, the Adviser and the Administrator herein, to the due performance by the Company of its obligations hereunder, and to the continuing satisfaction (or waiver by the Agent in its sole discretion) of the following additional conditions:
(a) The Registration Statement shall have become effective and shall be available for the sale of all Shares Notes to be issued and sold hereunder.
(b) None of the following events shall have occurred and be continuing: (i) receipt by the Company of any request for additional information from the Commission or any other federal or state governmental authority during the period of effectiveness of the Registration Statement, the response to which would require any amendments or supplements to the Registration Statement or the Prospectus relating to or affecting the SharesNotes; (ii) the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of or preventing the use of, the Registration Statement or the Prospectus or the initiation of any proceedings for that purpose, including any notice objecting to the use of the Registration Statement or order pursuant to Section 8(e) of the 1940 Act having been issued and proceedings therefor initiated, or to the knowledge of the Company, threatened by the Commission; (iii) receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Shares Notes for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (iv) the occurrence of any event that makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or Prospectus so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (v) the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate.
(c) There shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and Subsidiaries its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (after giving effect to any amendment or supplement thereto) the effect of which, is, in the reasonable judgment of the Agent, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares Notes as contemplated by the Registration Statement (after giving effect to any amendment thereof) and the Prospectus Supplement (after giving effect to any amendment or supplement thereto).
(d) The Agent shall have received the opinion opinions of Company Counsel and Counsel required to be delivered pursuant Section 6(o) on or before the date on which such deliveries delivery of such opinions are is required pursuant to Section 6(o).
(e) The Agent shall have received the opinion of Maryland Counsel required to be delivered pursuant Section 6(p) on or before the date on which such delivery of such opinion is required pursuant to Section 6(p).
(f) The Agent shall have received the Comfort Letter required to be delivered pursuant Section 6(q) on or before the date on which such delivery of such letter is required pursuant to Section 6(q).
(g) The Agent shall have received the certificates required to be delivered pursuant to Section 6(n) and Section 6(r) on or before the date on which delivery of such certificate is required pursuant to Section 6(n) and Section 6(r), respectively.
(h) The Agent shall have received the opinion of Agent Counsel required to be delivered pursuant Section 6(s) on or before the date on which such delivery of such opinion is required pursuant to Section 6(s).
(i) The Notes shall either have been (i) approved for listing on the NYSE or (ii) the Company shall have submitted to the NYSE a Supplemental Listing Application for listing of the Notes on the NYSE at, or prior to, the issuance of any Placement Notice.
(j) Trading in the 2024 Notes, 2028 Notes or the Notes shall not have been suspended on the NYSE.
(k) The Notes shall be rated at least BBB- by Standard & Poor’s Ratings Services and at least BBB by Xxxxx Bond Rating Agency, Inc.
(l) On or after each Applicable Time and each Settlement Date (i) no downgrading shall have occurred in the rating accorded to the Company’s debt securities (including the 2024 Notes, the 2028 Notes and the Notes) by any “nationally recognized statistical rating organization”, as that 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, with possible negative implications, its rating of any of the Company’s debt securities (including the 2024 Notes and Notes).
(m) All filings with the Commission required by Rule 497 under the 1933 Act to have been filed prior to the sale of Notes hereunder shall have been made within the applicable time period prescribed for such filing by Rule 497.
(n) FINRA shall have confirmed that it has no objection with respect to the fairness and reasonableness of the placement terms and arrangements set forth herein.
Appears in 5 contracts
Samples: Debt Distribution Agreement (Prospect Capital Corp), Debt Distribution Agreement (Prospect Capital Corp), Debt Distribution Agreement (Prospect Capital Corp)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder shall be subject to the continuing accuracy and completeness of the representations and warranties made by the Company, the Adviser and the Administrator herein, to the due performance by the Company of its obligations hereunder, and to the continuing satisfaction (or waiver by the Agent in its sole discretion) of the following additional conditions:
(a) The Registration Statement shall have become is effective and shall be available for the sale of all Shares to be issued and sold hereunder.
(b) None of the following events shall have occurred and be continuing: (i) receipt by the Company of any request for additional information from the Commission or any other federal or state governmental authority during the period of effectiveness of the Registration Statement, the response to which would require any amendments or supplements to the Registration Statement or the Prospectus relating to or affecting the Shares; (ii) the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of or preventing the use of, the Registration Statement or the Prospectus or the initiation of any proceedings for that purpose, including any notice objecting to the use of the Registration Statement or order pursuant to Section 8(e) of the 1940 Act having been issued and proceedings therefor initiated, or to the knowledge of the Company, threatened by the Commission; (iii) receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (iv) the occurrence of any event that makes any statement made in the Registration Statement or Statement, the Prospectus or any Additional Disclosure Item untrue in any material respect or that requires the making of any changes in the Registration Statement Statement, Prospectus or Prospectus any Additional Disclosure Item so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, that in the case of the ProspectusProspectus or any Additional Disclosure Item, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (v) the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate.
(c) There shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and Subsidiaries its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (after giving effect to any amendment or supplement thereto) the effect of which, is, in the reasonable judgment of the Agent, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (after giving effect to any amendment thereof) and the Prospectus Supplement (after giving effect to any amendment or supplement thereto).
(d) The Agent shall have received the opinion opinions of Company Counsel and General Counsel required to be delivered pursuant Section 6(o6(q) on or before the date on which such deliveries delivery of such opinions are is required pursuant to Section 6(o6(q).
(e) The Agent shall have received the opinion of Maryland Counsel required to be delivered pursuant Section 6(r) on or before the date on which such delivery of such opinion is required pursuant to Section 6(r).
(f) The Agent shall have received the Comfort Letter required to be delivered pursuant Section 6(s) on or before the date on which such delivery of such letter is required pursuant to Section 6(s).
(g) The Agent shall have received the certificates required to be delivered pursuant to Section 6(p) and Section 6(t) on or before the date on which delivery of such certificate is required pursuant to Section 6(p) and Section 6(t), respectively.
(h) The Agent shall have received the opinion of Agent Counsel required to be delivered pursuant Section 6(u) on or before the date on which such delivery of such opinion is required pursuant to Section 6(u).
(i) Trading in the Common Stock shall not have been suspended on NASDAQ and the Shares shall have been approved for listing on NASDAQ, subject only to notice of issuance.
(j) All filings with the Commission required by Rule 497 or Rule 424, as applicable, under the 1933 Act to have been filed prior to the sale of Shares hereunder shall have been made within the applicable time period prescribed for such filing by Rule 497 or Rule 424, as applicable.
(k) To the extent applicable, FINRA shall have confirmed that it has no objection with respect to the fairness and reasonableness of the placement terms and arrangements set forth herein.
Appears in 3 contracts
Samples: Equity Distribution Agreement (Prospect Capital Corp), Equity Distribution Agreement (Prospect Capital Corp), Equity Distribution Agreement (Prospect Capital Corp)
Conditions to the Agent’s Obligations. The obligations of (i) the Agent hereunder shall be with respect to any Shares that the Company has instructed the Agent to sell as sales agent on behalf of the Company and (ii) 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 any Terms Agreement are subject to (A) the continuing accuracy and completeness of the representations and warranties made of the Company, the General Partner and the Operating Partnership contained herein (1) as of each Representation Date, (2) as of each Recommencement Date, (3) as of each Applicable Time, (4) as of each Settlement Date and (5) as of the date such instructions are given to the Agent or the date of such Terms Agreement, as the case may be, (B) the performance in all material respects by the Company, the Adviser General Partner and the Administrator hereinOperating Partnership of their covenants and other obligations hereunder and, to if applicable, under such Terms Agreement, as the due performance by the Company of its obligations hereundercase may be, and to the continuing satisfaction (or waiver by the Agent in its sole discretionC) of the following additional further conditions:
(a) The Registration Statement shall have become effective Subsequent to the execution and shall be available for the sale delivery of all Shares to be issued and sold hereunder.this Agreement:
(b) None of the following events shall have occurred and be continuing: (i) receipt by the Company of any request for additional information from the Commission or any other federal or state governmental authority during the period of effectiveness of the Registration Statement, the response to which would require any amendments or supplements to the Registration Statement or the Prospectus relating to or affecting the Shares; (ii) the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, including any notice objecting to the use of the Registration Statement or order pursuant to Section 8(e) of the 1940 Act having been issued and proceedings therefor initiated, or to the knowledge of the Company, threatened by the Commission; (iii) receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (iv) the occurrence of any event that makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or Prospectus so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (v) the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate.
(c) There shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible downgrading, in the rating accorded any of the securities of the Company or any of the Subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and
(ii) There shall not have occurred any change, or any development involving a prospective change, in or affecting the condition (condition, financial or otherwise), or in the earnings, business or properties operations of the Company and Subsidiaries the Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as that set forth in or contemplated in the Time of Sale Prospectus (after giving effect to any amendment or supplement thereto) the effect of which, isthat, in the reasonable judgment of the Agent, so is material and adverse and that makes it, in the judgment of the Agent, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Agent shall have received on each date and within each time period specified in Section 6(m) hereof a certificate, dated such applicable date and signed by an executive officer of the Company on its own behalf and as General Partner of the Operating Partnership, to the effect set forth in Section 5(a) above and to the effect that the representations and warranties of the Company, the General Partner and the Operating Partnership contained in this Agreement that are qualified by materiality are true and correct as of such applicable date and those not so qualified are true and correct in all material respects as of such applicable date and that the Company, the General Partner and the Operating Partnership have complied in all material respects with all of the agreements and satisfied all of the conditions on their respective parts to be performed or satisfied hereunder on or before such applicable date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to make it impractical or inadvisable to proceed with the offering or delivery proceedings threatened.
(c) The Agent shall have received on each date and within each time period specified in Section 6(n) hereof an opinion and 10b-5 letter of the Shares as contemplated by outside counsel for the Registration Statement (after giving effect Company, dated such applicable date, with respect to any amendment thereof) and the Prospectus Supplement (after giving effect to any amendment or supplement thereto)matters identified in Exhibit A hereto.
(d) The Agent shall have received the on each date and within each time period specified in Section 6(n) hereof an opinion of Company the outside counsel for the Agent, dated such applicable date, covering such matters as the Agent may reasonably request.
(e) The Agent shall have received on each date and within each time period specified in Section 6(n) hereof an opinion of the Maryland counsel for the Company, dated such applicable date, with respect to the matters identified in Exhibit B hereto.
(f) The Agent shall have received on each date and within each time period specified in Section 6(n) hereof an opinion of the special tax counsel for the Company, dated such applicable date, with respect to the matters identified in Exhibit C hereto.
(g) The Agent shall have received on each date and within each time period specified in Section 6(n) hereof a certificate of the General Counsel required of the Company, dated such applicable date, with respect to be delivered pursuant the matters identified in Exhibit D hereto.
(h) The Agent shall have received, on each date and within each time period specified in Section 6(o) hereof, a letter dated such applicable date, in form and substance reasonably satisfactory to the Agent, from Deloitte & Touche LLP, an Independent Registered Public Accounting Firm, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements of the Company and its Subsidiaries and certain financial information with respect to the Company and its Subsidiaries contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on or before any Settlement Date pursuant to any Terms Agreement shall use a “cut-off date” not earlier than two business days prior to the date on which such deliveries of such opinions are required Terms Agreement.
(i) Upon commencement of the offering of Shares under this Agreement, the Company shall furnish or cause to be furnished promptly to the Agent a certificate of an executive officer of the Company, dated such date, in a form reasonably satisfactory to the Agent stating the minimum sales price per share, if any, for the sale of such Shares pursuant to this Agreement and the maximum aggregate offering price that may be issued and sold pursuant to this Agreement, as authorized from time to time by the Board or an authorized committee thereof, and the number of Shares that have been approved for listing subject to official notice of issuance, on NASDAQ. For the avoidance of doubt, the obligations of the Company under this Section 5(i) shall be suspended during any Suspension Period.
(j) The Agent shall have received, on each date and within each time period specified in Section 6(o) hereof, a letter dated such applicable date, in form and substance reasonably satisfactory to the Agent, from each accountant who has certified financial statements of any businesses or properties acquired or proposed to be acquired by the Company or a Subsidiary included or incorporated by reference in the Registration Statement, the Time of Sale Prospectus or the Prospectus, if any, for purposes of complying with Rule 3-05 or Rule 3-14 of Regulation S-X of the Securities Act, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to such financial statements and certain financial information with respect to such business or properties contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided, that the condition set forth in this Section 5(j) shall not apply if the financial statements of such businesses or properties are no longer included or incorporated by reference in the Registration Statement, the Time of Sale Prospectus or the Prospectus.
(k) The Shares shall have been approved for listing on NASDAQ, subject only to official notice of issuance.
(l) The Company shall have paid the required Commission filing fees relating to the Shares as specified in Section 6(k).
Appears in 3 contracts
Samples: Sales Agreement (CyrusOne Inc.), Sales Agreement (CyrusOne Inc.), Sales Agreement (CyrusOne Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder shall be subject to the continuing accuracy and completeness of the representations and warranties made by the Company, the Adviser and the Administrator herein, to the due performance by the Company of its obligations hereunder, and to the continuing satisfaction (or waiver by the Agent in its sole discretion) of the following additional conditions:
(a) The Registration Statement shall have become effective and shall be available for the sale of all Shares to be issued and sold hereunder.
(b) None of the following events shall have occurred and be continuing: (i) receipt by the Company of any request for additional information from the Commission or any other federal or state governmental authority during the period of effectiveness of the Registration Statement, the response to which would require any amendments or supplements to the Registration Statement or the Prospectus relating to or affecting the Shares; (ii) the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, including any notice objecting to the use of the Registration Statement or order pursuant to Section 8(e) of the 1940 Act having been issued and proceedings therefor initiated, or to the knowledge of the Company, threatened by the Commission; (iii) receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (iv) the occurrence of any event that makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or Prospectus so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (v) the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate.
(c) There shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (after giving effect to any amendment or supplement thereto) the effect of which, is, in the reasonable judgment of the Agent, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (after giving effect to any amendment thereof) and the Prospectus Supplement (after giving effect to any amendment or supplement thereto).
(d) The Agent shall have received the opinion of Company Counsel required to be delivered pursuant Section 6(o) on or before the date on which such deliveries of such opinions are required pursuant to Section 6(o).
(e) The Agent shall have received the opinion of 1940 Act Counsel required to be delivered pursuant Section 6(p) on or before the date on which such delivery of such opinion is required pursuant to Section 6(p).
(f) The Agent shall have received the Comfort Letter required to be delivered pursuant Section 6(q) on or before the date on which such delivery of such letter is required pursuant to Section 6(q).
(g) The Agent shall have received the certificates required to be delivered pursuant to Section 6(n) and Section 6(r) on or before the date on which delivery of such certificate is required pursuant to Section 6(n) and Section 6(r), respectively.
(h) The Agent shall have received the opinion of Agent Counsel required to be delivered pursuant Section 6(s) on or before the date on which such delivery of such opinion is required pursuant to Section 6(s).
(i) Trading in the Common Stock shall not have been suspended on NASDAQ.
(j) All filings with the Commission required by Rule 497 under the 1933 Act to have been filed prior to the sale of Shares hereunder shall have been made within the applicable time period prescribed for such filing by Rule 497.
(k) FINRA shall have confirmed that it has no objection with respect to the fairness and reasonableness of the placement terms and arrangements set forth herein.
(l) If any condition specified in this Section 7 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Agent by notice to the Company (which termination shall be effective as of the time of the receipt by the Company of such notice), and such termination shall be without liability of any party to any other party except as provided in Section 5 hereof and except that, in the case of any termination of this Agreement, Sections 8, 10, 13, 15 and 16 hereof shall survive such termination and remain in full force and effect.
Appears in 3 contracts
Samples: Sales Agreement (Gladstone Investment Corporation\de), Sales Contracts (Gladstone Investment Corporation\de), Sales Agreement (Gladstone Investment Corporation\de)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder shall be subject are subject, to the continuing accuracy and completeness of extent not waived in writing by the Agent, to the condition that all representations and warranties made by of the CompanyPrimary Parties herein contained are, at and as of the commencement of the Offering and (except to the extent such representations and warranties speak as of an earlier date) at and as of the Closing Date, true and correct in all material respects (except to the extent such representations or warranties are qualified as to materiality, in which case they shall be true and correct in all respects), the Adviser and condition that the Administrator hereinPrimary Parties shall have performed, in all material respects, all of their obligations hereunder to the due performance by the Company of its obligations hereunder, be performed on or before such dates and to the continuing satisfaction (or waiver by the Agent in its sole discretion) of the following additional further conditions:
(a) At the Closing Date, the Primary Parties shall have conducted the Conversion and the establishment of and contribution to the Foundation of the Foundation Shares in all material respects in accordance with the Plan, the IDFI Regulations, the Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the Federal Reserve Board, the IDFI, the FDIC, and the Commission or any other government authority.
(b) The Registration Statement shall have become been declared effective and shall be available for the sale of all Shares to be issued and sold hereunder.
(b) None of the following events shall have occurred and be continuing: (i) receipt by the Company of any request for additional information from the Commission or any other federal or state governmental authority during the period of effectiveness of the Registration Statement, the response to which would require any amendments or supplements to the Registration Statement or the Prospectus relating to or affecting the Shares; (ii) the issuance by the Commission or any other federal or state governmental authority and the Applications shall have been approved by the Federal Reserve Board and the IDFI, as applicable, as of any the date of this Agreement and, at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, including any notice objecting to the use of the Registration Statement or order pursuant to Section 8(e) of the 1940 Act having shall have been issued and under the 1933 Act or proceedings therefor initiatedinitiated or, or to the knowledge of the CompanyPrimary Parties, threatened by the Commission; (iii) receipt Commission or any regulatory authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the Company Federal Reserve Board, the Commission, the IDFI or the FDIC or any other regulatory authority. The Shares and the Foundation Shares shall have been registered for offering and sale or exempted therefrom under the securities or blue sky laws of any notification with respect the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Company.
(c) At the Closing Date, the Agent shall have received:
(1) The opinion, dated as of the Closing Date and addressed to the suspension Agent and for its benefit and upon which Agent's counsel may rely for purposes of the qualification or exemption from qualification delivering its legal opinion (if any), of any of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (iv) the occurrence of any event that makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or Prospectus so thatSilver, Fxxxxxxx, Txxx & Txxxxxx LLP, in form and substance satisfactory to the case Agent and counsel for the Agent, to the effect as attached hereto as Exhibit A.
(2) In addition, such counsel shall state in a separate letter that during the preparation of the Registration Statement, it will the Prospectus, and the Applications, they participated in conferences with certain officers of, the independent public accountants for, and other representatives of, the Primary Parties, at which conferences the contents of the Registration Statement, the Prospectus, the proxy statement for the special meeting of the Voting Member of the MHC (the “Proxy Statement”) and the Applications and related matters were discussed and, while such counsel have not confirmed the accuracy or completeness of or otherwise verified the factual information contained in the Registration Statement, the Prospectus, the Proxy Statement and the Applications, and do not assume any responsibility for such information, based upon such conferences and a review of documents deemed relevant for the purpose of rendering their opinion (relying as to materiality as to factual matters on certificates of officers and other factual representations by the Primary Parties), nothing has come to their attention that would lead them to believe that the Registration Statement, the Prospectus, the Proxy Statement or any of the Applications, or any amendment or supplement thereto (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein as to which no view need be rendered) contain any an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(d) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BKD, LLP dated the date hereof and addressed to the Agent, such letter (i) confirming that BKD, LLP is a firm of independent public accountants within the meaning of the 1933 Act and the 1933 Act Regulations and the PCAOB, and stating in effect that in the opinion of BKD, LLP, the financial statements of the Mid-Tier Holding Company included in the Prospectus comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and the 1934 Act and the related rules and regulations of the Commission thereunder and the Federal Reserve Board; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with generally accepted auditing standards) consisting of a review (in accordance with Auditing Standard No. 4105) of the latest available unaudited interim financial statements of the Mid-Tier Holding Company prepared by the Primary Parties, a reading of the minutes of the meetings of the Boards of Directors of the Mid-Tier Holding Company and the Bank and committees thereof and consultations with officers of the Mid-Tier Holding Company responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited financial statements included in the Prospectus are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (B) except as stated in such letter, during the period from the date of the latest unaudited financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, there was any increase in borrowings (defined as securities sold under agreements to repurchase and any other form of debt other than deposits), non-performing loans or special mention loans or decrease in the deposits, total assets, total loans, the allowance for loan losses or equity, or there was any decrease in total interest income, net interest income, net interest income after the provision for loan losses, income (loss) before income taxes, or net income (loss) of the Mid-Tier Holding Company for the period commencing immediately after the period covered by the latest unaudited income statement included in the Prospectus and ended not more than three business days prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (viii) stating that, in addition to the audit referred to in its opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (d), they have compared with the general accounting records of the Mid-Tier Holding Company’s reasonable determination that , which are subject to the internal controls of the accounting system of the Mid-Tier Holding Company and other data prepared by the Mid-Tier Holding Company from accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request, and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(e) At the Closing Date, the Agent shall receive a post-effective amendment letter from BKD, LLP dated the Closing Date, addressed to the Agent, confirming the statements made by its letter delivered pursuant to Section 11(d), the “specified date” referred to in clause (ii)(B) thereof to be a date specified in the letter required by this subsection (e) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(f) At or prior to Closing Date, counsel to the Agent shall have been furnished with such documents as counsel for the Agent may reasonably require for the purpose of enabling them to advise the Agent with respect to the issuance and sale of the Shares and the contribution of the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations and warranties, or the fulfillment of any of the conditions herein contained.
(g) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and Chief Financial Officer of each of the Primary Parties, dated the Closing Date, to the effect that:
(i) they have examined the Registration Statement would and at the time the Registration Statement became effective, the Prospectus did not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
(ii) there has not been, since the respective dates as of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect otherwise than as set forth or contemplated in the Registration Statement and the Prospectus;
(iii) the representations and warranties contained in Section 6 of this Agreement are true and correct with the same force and effect as though made at and as of the Closing Date;
(iv) the Primary Parties have complied in all material respects with all agreements and satisfied all conditions on their part to be appropriateperformed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 11;
(v) no stop order has been issued or, to their knowledge, is threatened, by the Commission or any other governmental body;
(vi) no order suspending the Offering, the Conversion, the acquisition of all outstanding capital stock of the Bank by the Company, or the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for any such purpose have been initiated or threatened by the Federal Reserve Board, the Commission, the IDFI, the FDIC or any other federal or state authority; and
(vii) to their knowledge, no person has sought to obtain regulatory or judicial review of the action of the Federal Reserve Board, the FDIC or the IDFI in approving the Applications or to enjoin the Conversion.
(ch) There At the Closing Date, the Agent shall receive a letter from RP Financial, LC., dated as of the Closing Date,
(i) confirming that said firm is independent of the Primary Parties and is experienced and expert in the area of corporate appraisals,
(ii) stating in effect that the Appraisal complies in all material respects with requirements of the Federal Reserve Board, and
(iii) further stating that its opinion of the aggregate pro forma market value of the Primary Parties expressed in the Appraisal as most recently updated, remains in effect.
(i) None of the Primary Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement and Prospectus, any material loss or interference with its business from fire, explosion, flood, earthquake or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any changeMaterial Adverse Effect, otherwise than as set forth in the Registration Statement and Prospectus, that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(j) Prior to and at the Closing Date, in the reasonable opinion of the Agent there shall have been no material adverse change in the financial condition or in the earnings or business of any of the Primary Parties independently, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and Subsidiaries Primary Parties taken as a whole, whether or not arising from transactions and as of the latest dates as of which such condition is set forth in the ordinary course of businessProspectus, except as set forth referred to therein.
(k) At or prior to the Closing Date, (i) a copy of the letter from the Federal Reserve Board approving the Holding Company Application including the establishment of the Foundation; (ii) a copy of the letter from the IDFI approving the IDFI Application; (iii) a copy of the order from the Commission declaring the Registration Statement effective, if available; (iv) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (v) a certificate from the FHLBs evidencing the Bank’s memberships therein; (vi) a certified copy of each of the Primary Parties’ Charter and Bylaws, as applicable; (vii) a certified copy of the Foundations’ Charter and Bylaws; and (viii) any other documents that Agent shall reasonably request.
(l) At the Closing Date, the Shares and the Foundation Shares shall have been approved for listing on the Nasdaq Capital Market.
(m) Subsequent to the date hereof, there shall not have occurred any of the following:
(i) a suspension or limitation in trading in securities generally on the New York Stock Exchange, the NASDAQ, or contemplated in the Prospectus over-the-counter market, or quotations halted generally on the OTC Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts;
(ii) a general moratorium on the operations of federally insured financial institutions or a general moratorium on the withdrawal of deposits from commercial banks or other federally insured financial institutions declared by either federal or state authorities; or
(iii) a material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis, including, without limitation, terrorist activities after giving effect to any amendment or supplement thereto) the date hereof, the effect of which, is, in the reasonable judgment of the Agent, is so material and adverse as to make it impractical impracticable to market the Shares or inadvisable to proceed with enforce contracts, including subscriptions or purchase orders, for the offering or delivery sale of the Shares as contemplated by Shares.
(n) Prior to and at the Registration Statement Closing Date, none of the Primary Parties will have received from the Federal Reserve Board, the IDFI, or the FDIC any direction (after giving effect oral or written) to make any amendment thereof) and material change in the Prospectus Supplement method of conducting their business with which it has not complied (after giving effect which direction, if any, shall have been disclosed to any amendment or supplement theretothe Agent).
(do) The All such opinions, certificates, letters and documents delivered pursuant to this Section 11 will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Agent and to counsel for the Agent. Any certificate signed by an officer of any Primary Party and delivered to the Agent or to counsel for the Agent shall have received be deemed a representation and warranty by such Primary Party to the opinion of Company Counsel required Agent as to be delivered pursuant Section 6(o) on or before the date on which such deliveries of such opinions are required pursuant to Section 6(o)statements made therein.
Appears in 2 contracts
Samples: Agency Agreement (Richmond Mutual Bancorporation, Inc.), Agency Agreement (Richmond Mutual Bancorporation, Inc.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder shall be subject to the continuing accuracy and completeness of the representations and warranties made by the Company, the Adviser and the Administrator herein, to the due performance by the Company of its obligations hereunder, and to the continuing satisfaction (or waiver by the Agent in its sole discretion) of the following additional conditions:
(a) The Registration Statement shall have become effective and shall be available for the sale of all Shares to be issued and sold hereunder.
(b) None of the following events shall have occurred and be continuing: (i) receipt by the Company of any request for additional information from the Commission or any other federal or state governmental authority during the period of effectiveness of the Registration Statement, the response to which would require any amendments or supplements to the Registration Statement or the Prospectus relating to or affecting the Shares; (ii) the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, including any notice objecting to the use of the Registration Statement or order pursuant to Section 8(e) of the 1940 Act having been issued and proceedings therefor initiated, or to the knowledge of the Company, threatened by the Commission; (iii) receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (iv) the occurrence of any event that makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or Prospectus so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (v) the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate.
(c) There shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (after giving effect to any amendment or supplement thereto) the effect of which, which is, in the reasonable judgment of the Agent, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (after giving effect to any amendment thereof) and the Prospectus Supplement (after giving effect to any amendment or supplement thereto).
(d) The Agent shall have received the opinion of Company Counsel required to be delivered pursuant Section 6(o) on or before the date on which such deliveries of such opinions are required pursuant to Section 6(o).
(e) The Agent shall have received the certificate required to be delivered pursuant Section 6(p) on or before the date on which such delivery of such certificate is required pursuant to Section 6(p).
(f) The Agent shall have received the Comfort Letter required to be delivered pursuant Section 6(q) on or before the date on which such delivery of such letter is required pursuant to Section 6(q).
(g) The Agent shall have received the certificates required to be delivered pursuant to Section 6(n) and Section 6(r) on or before the date on which delivery of such certificate is required pursuant to Section 6(n) and Section 6(r), respectively.
(h) The Agent shall have received the opinion of Agent Counsel required to be delivered pursuant Section 6(s) on or before the date on which such delivery of such opinion is required pursuant to Section 6(s).
(i) Trading in the Common Stock shall not have been suspended on NYSE.
(j) All filings with the Commission required by Rule 424 under the 1933 Act to have been filed prior to the sale of Shares hereunder shall have been made within the applicable time period prescribed for such filing by Rule 424.
(k) To the extent required, FINRA shall have confirmed that it has no objection with respect to the fairness and reasonableness of the placement terms and arrangements set forth herein.
(l) If any condition specified in this Section 7 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Agent by notice to the Company (which termination shall be effective as of the time of the receipt by the Company of such notice), and such termination shall be without liability of any party to any other party except as provided in Section 5 hereof and except that, in the case of any termination of this Agreement, Sections 8, 10, 13, 15 and 16 hereof shall survive such termination and remain in full force and effect.
Appears in 2 contracts
Samples: Sales Agreement (TriplePoint Venture Growth BDC Corp.), Sales Agreement (TriplePoint Venture Growth BDC Corp.)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder shall be subject to the continuing accuracy and completeness of the representations and warranties made by the Company, the Adviser and the Administrator herein, to the due performance by the Company of its obligations hereunder, and to the continuing satisfaction (or waiver by the Agent in its sole discretion) of the following additional conditions:
(a) The Registration Statement shall have become effective and shall be available for the sale of all Shares to be issued and sold hereunder.
(b) None of the following events shall have occurred and be continuing: (i) receipt by the Company of any request for additional information from the Commission or any other federal or state governmental authority during the period of effectiveness of the Registration Statement, the response to which would require any amendments or supplements to the Registration Statement or the Prospectus relating to or affecting the Shares; (ii) the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, including any notice objecting to the use of the Registration Statement or order pursuant to Section 8(e) of the 1940 Act having been issued and proceedings therefor initiated, or to the knowledge of the Company, threatened by the Commission; (iii) receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (iv) the occurrence of any event that makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or Prospectus so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (v) the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate.
(c) There shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and Subsidiaries its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (after giving effect to any amendment or supplement thereto) the effect of which, is, in the reasonable judgment of the Agent, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (after giving effect to any amendment thereof) and the Prospectus Supplement (after giving effect to any amendment or supplement thereto).
(d) The Agent shall have received the opinion opinions of Company Counsel and Maryland Counsel required to be delivered pursuant Section 6(o) on or before the date on which such deliveries of such opinions are required pursuant to Section 6(o).
(e) The Agent shall have received the opinion of 1940 Act Counsel required to be delivered pursuant Section 6(p) on or before the date on which such delivery of such opinion is required pursuant to Section 6(p).
(f) The Agent shall have received the Comfort Letter required to be delivered pursuant Section 6(q) on or before the date on which such delivery of such letter is required pursuant to Section 6(q).
(g) The Agent shall have received the certificates required to be delivered pursuant to Section 6(n) and Section 6(r) on or before the date on which delivery of such certificate is required pursuant to Section 6(n) and Section 6(r), respectively.
(h) The Agent shall have received the opinion of Agent Counsel required to be delivered pursuant Section 6(s) on or before the date on which such delivery of such opinion is required pursuant to Section 6(s).
(i) Trading in the Common Stock shall not have been suspended on NASDAQ.
(j) All filings with the Commission required by Rule 497 under the 1933 Act to have been filed prior to the sale of Shares hereunder shall have been made within the applicable time period prescribed for such filing by Rule 497.
(k) FINRA shall have confirmed that it has no objection with respect to the fairness and reasonableness of the placement terms and arrangements set forth herein.
(l) If any condition specified in this Section 7 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Agent by notice to the Company (which termination shall be effective as of the time of the receipt by the Company of such notice), and such termination shall be without liability of any party to any other party except as provided in Section 5 hereof and except that, in the case of any termination of this Agreement, Sections 8, 10, 13, 15 and 16 hereof shall survive such termination and remain in full force and effect.
Appears in 2 contracts
Samples: Equity Distribution Agreement (Gladstone Capital Corp), Equity Distribution Agreement (Gladstone Capital Corp)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder shall be subject to the continuing accuracy and completeness of the representations and warranties made by the Company, the Adviser and the Administrator herein, to the due performance by the Company of its obligations hereunder, and to the continuing satisfaction (or waiver by the Agent in its sole discretion) of the following additional conditions:
(a) The Registration Statement shall have become effective and shall be available for the sale of all Shares to be issued and sold hereunder.
(b) None of the following events shall have occurred and be continuing: (i) receipt by the Company of any request for additional information from the Commission or any other federal or state governmental authority during the period of effectiveness of the Registration Statement, the response to which would require any amendments or supplements to the Registration Statement or the Prospectus relating to or affecting the Shares; (ii) the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, including any notice objecting to the use of the Registration Statement or order pursuant to Section 8(e) of the 1940 Investment Company Act having been issued and proceedings therefor initiated, or to the knowledge of the Company, threatened by the Commission; (iii) receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (iv) the occurrence of any event that makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or Prospectus so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (v) the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate.
(c) There shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and Subsidiaries its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (after giving effect to any amendment or supplement thereto) the effect of which, is, in the reasonable judgment of the Agent, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (after giving effect to any amendment thereof) and the Prospectus Supplement (after giving effect to any amendment or supplement thereto).
(d) The Agent shall have received the opinion opinions of Company Counsel and General Counsel required to be delivered pursuant Section 6(o) on or before the date on which such deliveries delivery of such opinions are required pursuant to Section 6(o).
(e) The Agent shall have received the opinion of Maryland Counsel required to be delivered pursuant Section 6(p) on or before the date on which such delivery of such opinion is required pursuant to Section 6(p).
(f) The Agent shall have received the Comfort Letter required to be delivered pursuant Section 6(p) on or before the date on which such delivery of such letter is required pursuant to Section 6(p).
(g) The Agent shall have received the certificates required to be delivered pursuant to Section 6(n) and Section 6(r) on or before the date on which delivery of such certificate is required pursuant to Section 6(n) and Section 6(r), respectively.
(h) The Agent shall have received the opinion of Agent Counsel required to be delivered pursuant Section 6(s) on or before the date on which such delivery of such opinion is required pursuant to Section 6(s).
(i) Trading in the Common Stock shall not have been suspended on NASDAQ and the Shares shall have been approved for listing on NASDAQ, subject only to notice of issuance.
(j) All filings with the Commission required by Rule 497 under the 1933 Act to have been filed prior to the sale of Shares hereunder shall have been made within the applicable time period prescribed for such filing by Rule 497.
(k) FINRA shall have confirmed that it has no objection with respect to the fairness and reasonableness of the placement terms and arrangements set forth herein.
Appears in 2 contracts
Samples: Equity Distribution Agreement (Prospect Capital Corp), Equity Distribution Agreement (Prospect Capital Corp)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder shall be subject to the continuing accuracy and completeness of the representations and warranties made by the Company, the Adviser and the Administrator herein, to the due performance by the Company of its obligations hereunder, and to the continuing satisfaction (or waiver by the Agent in its sole discretion) of the following additional conditions:
(a) The Registration Statement shall have become effective and shall be available for the sale of all Shares Notes to be issued and sold hereunder.
(b) None of the following events shall have occurred and be continuing: (i) receipt by the Company of any request for additional information from the Commission or any other federal or state governmental authority during the period of effectiveness of the Registration Statement, the response to which would require any amendments or supplements to the Registration Statement or the Prospectus relating to or affecting the SharesNotes; (ii) the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of or preventing the use of, the Registration Statement or the Prospectus or the initiation of any proceedings for that purpose, including any notice objecting to the use of the Registration Statement or order pursuant to Section 8(e) of the 1940 Investment Company Act having been issued and proceedings therefor initiated, or to the knowledge of the Company, threatened by the Commission; (iii) receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Shares Notes for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (iv) the occurrence of any event that makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or Prospectus so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (v) the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate.
(c) There shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and Subsidiaries its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (after giving effect to any amendment or supplement thereto) the effect of which, is, in the reasonable judgment of the Agent, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares Notes as contemplated by the Registration Statement (after giving effect to any amendment thereof) and the Prospectus Supplement (after giving effect to any amendment or supplement thereto).
(d) The Agent shall have received the opinion opinions of Company Counsel and General Counsel required to be delivered pursuant Section 6(o) on or before the date on which such deliveries delivery of such opinions are is required pursuant to Section 6(o).
(e) The Agent shall have received the opinion of Maryland Counsel required to be delivered pursuant Section 6(p) on or before the date on which such delivery of such opinion is required pursuant to Section 6(p).
(f) The Agent shall have received the Comfort Letter required to be delivered pursuant Section 6(q) on or before the date on which such delivery of such letter is required pursuant to Section 6(q).
(g) The Agent shall have received the certificates required to be delivered pursuant to Section 6(n) and Section 6(r) on or before the date on which delivery of such certificate is required pursuant to Section 6(n) and Section 6(r), respectively.
(h) The Agent shall have received the opinion of Agent Counsel required to be delivered pursuant Section 6(s) on or before the date on which such delivery of such opinion is required pursuant to Section 6(s).
(i) The Notes shall either have been (i) approved for listing on the NYSE or (ii) the Company shall have submitted to the NYSE a Supplemental Listing Application for listing of the Notes on the NYSE at, or prior to, the issuance of any Placement Notice.
(j) Trading in the 2024 Notes shall not have been suspended on the NYSE.
(k) The Notes shall be rated at least BBB- by Standard & Poor’s Ratings Services and at least BBB+ by Xxxxx Bond Rating Agency, Inc.
(l) On or after each Applicable Time and each Settlement Date (i) no downgrading shall have occurred in the rating accorded to the Company’s debt securities (including the 2024 Notes and the Notes) by any “nationally recognized statistical rating organization”, as that 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, with possible negative implications, its rating of any of the Company’s debt securities (including the 2024 Notes and Notes).
(m) All filings with the Commission required by Rule 497 under the 1933 Act to have been filed prior to the sale of Notes hereunder shall have been made within the applicable time period prescribed for such filing by Rule 497.
(n) FINRA shall have confirmed that it has no objection with respect to the fairness and reasonableness of the placement terms and arrangements set forth herein.
Appears in 2 contracts
Samples: Debt Distribution Agreement (Prospect Capital Corp), Debt Distribution Agreement (Prospect Capital Corp)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder shall be subject are subject, to the continuing accuracy and completeness of extent not waived in writing by the Agent, to the condition that all representations and warranties made by of the CompanyCF Parties herein contained are, at and as of the commencement of the Offering and (except to the extent such representations and warranties speak as of an earlier date) at and as of the Closing Date, true and correct in all material respects (except to the extent such representations or warranties are qualified as to materiality, in which case they shall be true and correct in all respects), the Adviser and condition that the Administrator hereinCF Parties shall have performed, in all material respects, all of their obligations hereunder to the due performance by the Company of its obligations hereunder, be performed on or before such dates and to the continuing satisfaction (or waiver by the Agent in its sole discretion) of the following additional further conditions:
(a) At the Closing Date, the CF Parties shall have conducted the Reorganization in all material respects in accordance with the Plan, the MHC Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Reorganization imposed upon them by the Federal Reserve and the Commission or any other government authority.
(b) The Registration Statement shall have become been declared effective and shall be available for the sale of all Shares to be issued and sold hereunder.
(b) None of the following events shall have occurred and be continuing: (i) receipt by the Company of any request for additional information from the Commission or any other federal or state governmental authority during the period of effectiveness of the Registration Statement, the response to which would require any amendments or supplements to the Registration Statement or the Prospectus relating to or affecting the Shares; (ii) the issuance by the Commission or any other federal or state governmental authority of any and the MHC Notice and Holding Company Application shall have been approved by the Federal Reserve and, at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, including any notice objecting to the use of the Registration Statement or order pursuant to Section 8(e) of the 1940 Act having shall have been issued and under the 1933 Act or proceedings therefor initiatedinitiated or, or to the knowledge of the CompanyCF Parties, threatened by the Commission; (iii) receipt Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Reorganization shall have been issued, or proceedings therefor initiated or, to the knowledge of the CF Parties, threatened by the Company Federal Reserve, the Commission, or any other governmental authority. The Shares shall have been registered for offering and sale or exempted therefrom under the securities or blue sky laws of any notification with respect the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Company.
(c) At the Closing Date, the Agent shall have received:
(1) The opinion, dated as of the Closing Date, of Xxxx Xxxxxx, PC, in form and substance satisfactory to the suspension of Agent and counsel for the qualification or exemption from qualification of any of Agent, to the Shares for sale effect as attached hereto as Exhibit A:
(2) In addition, such counsel shall state in any jurisdiction or a separate letter that during the initiation or threatening of any proceeding for such purpose; (iv) the occurrence of any event that makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or Prospectus so that, in the case preparation of the Registration Statement, it will the Prospectus, the MHC Notice, and the Holding Company Application, they participated in conferences with certain officers of, the independent public and internal accountants for, and other representatives of, the CF Parties, at which conferences the contents of the Registration Statement, the Prospectus, the MHC Notice, the Holding Company Application, the Proxy Statement and related matters were discussed and, while such counsel have not confirmed the accuracy or completeness of or otherwise verified the factual information contained in the Registration Statement, the Prospectus, the MHC Notice, the Holding Company Application and the Proxy Statement, and do not assume any responsibility for such information, based upon such conferences and a review of documents deemed relevant for the purpose of rendering their opinion (relying as to materiality as to factual matters on certificates of officers and other factual representations by the CF Parties), nothing has come to their attention that would lead them to believe that the Registration Statement, the Prospectus, the MHC Notice, the Holding Company Application or the Proxy Statement, or any amendment or supplement thereto (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein as to which no view need be rendered) contain any an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(d) Concurrently with the execution of this Agreement, the Agent shall receive a letter from BKD, LLP dated the date hereof and addressed to the Agent, such letter (i) confirming that BKD, LLP is a firm of independent public accountants within the meaning of the 1933 Act and the 1933 Act Regulations, and stating in effect that in the opinion of BKD, LLP, the financial statements of the Bank included in the Prospectus comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and the 1934 Act and the related rules and regulations of the Commission thereunder; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit examination in accordance with generally accepted auditing standards) consisting of a review (in accordance with Statement of Auditing Standards No. 71) of the latest available unaudited consolidated interim financial statements of the Bank prepared by the CF Parties, a reading of the minutes of the meetings of the Board of Directors of the Bank and committees thereof and consultations with officers of the Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited consolidated financial statements included in the Prospectus are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (B) except as stated in such letter, during the period from the date of the latest unaudited consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, there was any material increase in borrowings (defined as securities sold under agreements to repurchase and any other form of debt other than deposits), non-performing loans or special mention loans or material decrease in the deposits, total assets or stockholders’ equity, or there was any change in common stock outstanding at the date of such letter as compared with amounts shown in the latest unaudited statement of condition or there was any material decrease in net income of the Bank for the period commencing immediately after the period covered by the latest unaudited income statement included in the Prospectus and ended not more than three business days prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (viii) stating that, in addition to the Company’s reasonable determination that audit examination referred to in its opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (d), they have compared with the general accounting records of the Bank, which are subject to the internal controls of the accounting system of the Bank and other data prepared by the CF Parties from accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request, and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(e) At the Closing Date, the Agent shall receive a post-effective amendment letter from BKD, LLP dated the Closing Date, addressed to the Agent, confirming the statements made by its letter delivered pursuant to subsection (d) of this Section 11, the “specified date” referred to in clause (ii)(B) thereof to be a date specified in such letter, which shall not be more than three business days prior to the Closing Date.
(f) At the Closing Date, counsel to the Agent shall have been furnished with such documents as counsel for the Agent may reasonably require for the purpose of enabling them to advise the Agent with respect to the issuance and sale of the Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations and warranties, or the fulfillment of any of the conditions herein contained.
(g) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and Chief Financial Officer of each of the CF Parties, dated the Closing Date, to the effect that:
(i) they have examined the Registration Statement would and at the time the Registration Statement became effective, the Prospectus did not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
(ii) there has not been, since the respective dates as of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect otherwise than as set forth or contemplated in the Registration Statement and the Prospectus;
(iii) the representations and warranties contained in Section 6 of this Agreement are true and correct with the same force and effect as though made at and as of the Closing Date;
(iv) the CF Parties have complied in all material respects with all material agreements and satisfied all conditions on their part to be appropriateperformed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 11;
(v) no stop order has been issued or, to their knowledge, is threatened, by the Commission or any other governmental body;
(vi) no order suspending the Offering, the Reorganization, the acquisition of all outstanding capital stock of the Bank by the Company, the acquisition of a controlling interest in the Company by the MHC, or the effectiveness of the Registration Statement has been issued and to their knowledge, no proceedings for any such purpose have been initiated or threatened by the Federal Reserve, the Commission, or any other federal or state authority; and
(vii) to their knowledge, no person has sought to obtain regulatory or judicial review of the action of the Federal Reserve in approving the Plan or to enjoin the Reorganization.
(ch) There At the Closing Date, the Agent shall receive a letter from Xxxxxx & Company, Inc., dated as of the Closing Date,
(i) confirming that said firm is independent of the CF Parties and is experienced and expert in the area of corporate appraisals,
(ii) stating in effect that the Appraisal complies in all material respects with the applicable requirements of the MHC Regulations, and
(iii) further stating that its opinion of the aggregate pro forma market value of the CF Parties expressed in the Appraisal as most recently updated, remains in effect.
(i) None of the CF Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement and Prospectus, any material loss or interference with its business from fire, explosion, flood, earthquake or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any changeMaterial Adverse Effect, otherwise than as set forth in the Registration Statement and Prospectus, that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(j) Prior to and at the Closing Date, in the reasonable opinion of the Agent there shall have been no material adverse change in the financial condition or in the earnings or business of any of the CF Parties independently, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and Subsidiaries CF Parties taken as a whole, whether or not arising from transactions and as of the latest dates as of which such condition is set forth in the ordinary course of businessProspectus, except as set forth referred to therein.
(k) At or prior to the Closing Date, the Agent shall receive (i) a copy of the MHC Notice and a copy of the letters from the Federal Reserve approving the MHC Notice, (ii) a copy of the order from the Commission declaring the Registration Statement effective, (iii) a copy of the letter from the Federal Reserve approving the Holding Company Application, (iv) a certificate from the FHLB-Cincinnati evidencing the Bank’s membership therein, (v) a certificate from the FDIC evidencing the Bank’s insurance of accounts, and (vi) any other documents that Agent shall reasonably request.
(l) Subsequent to the date hereof, there shall not have occurred any of the following:
(i) a suspension or limitation in trading in securities generally on the New York Stock Exchange (the “NYSE”) or contemplated in the Prospectus over-the-counter market, or quotations halted generally on the NASDAQ Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts;
(ii) a general moratorium on the operations of federally insured financial institutions or a general moratorium on the withdrawal of deposits from commercial banks or other federally insured financial institutions declared by either federal or state authorities; or
(iii) a material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis, including, without limitation, terrorist activities after giving effect to any amendment or supplement thereto) the date hereof, the effect of which, is, in the reasonable judgment of the Agent, is so material and adverse as to make it impractical impracticable to market the Shares or inadvisable to proceed with enforce contracts, including subscriptions or purchase orders, for the offering or delivery sale of the Shares as contemplated by Shares.
(m) Prior to and at the Registration Statement Closing date, none of the CF Parties will have received from the Federal Reserve, the OCC or the FDIC any direction (after giving effect oral or written) to make any amendment thereof) and material change in the Prospectus Supplement method of conducting their business with which it has not complied (after giving effect which direction, if any, shall have been disclosed to any amendment or supplement theretothe Agent).
(dn) The All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Agent and to counsel for the Agent. Any certificate signed by an officer of the Company or the Bank and delivered to the Agent or to counsel for the Agent shall have received be deemed a representation and warranty by the opinion of Company Counsel required or the Bank, as the case may be, to be delivered pursuant Section 6(o) on or before the date on which such deliveries of such opinions are required pursuant Agent as to Section 6(o)the statements made therein.
Appears in 2 contracts
Samples: Agency Agreement (Cincinnati Bancorp), Agency Agreement (Cincinnati Bancorp)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder shall be subject to the continuing accuracy and completeness of the representations and warranties made by the Company, the Adviser and the Administrator herein, to the due performance by the Company of its obligations hereunder, and to the continuing satisfaction (or waiver by the Agent in its sole discretion) of the following additional conditions:
(a) The Registration Statement shall have become effective and shall be available for the sale of all Shares to be issued and sold hereunder.
(b) None of the following events shall have occurred and be continuing: (i) receipt by the Company of any request for additional information from the Commission or any other federal or state governmental authority during the period of effectiveness of the Registration Statement, the response to which would require any amendments or supplements to the Registration Statement or the Prospectus relating to or affecting the Shares; (ii) the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, including any notice objecting to the use of the Registration Statement or order pursuant to Section 8(e) of the 1940 Investment Company Act having been issued and proceedings therefor initiated, or to the knowledge of the Company, threatened by the Commission; (iii) receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (iv) the occurrence of any event that makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or Prospectus so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (v) the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate.
(c) There shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and Subsidiaries its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (after giving effect to any amendment or supplement thereto) the effect of which, is, in the reasonable judgment of the Agent, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (after giving effect to any amendment thereof) and the Prospectus Supplement (after giving effect to any amendment or supplement thereto).
(d) The Agent shall have received the opinion opinions of Company Counsel and General Counsel required to be delivered pursuant Section 6(o) on or before the date on which such deliveries delivery of such opinions are is required pursuant to Section 6(o).
(e) The Agent shall have received the opinion of Maryland Counsel required to be delivered pursuant Section 6(p) on or before the date on which such delivery of such opinion is required pursuant to Section 6(p).
(f) The Agent shall have received the Comfort Letter required to be delivered pursuant Section 6(p) on or before the date on which such delivery of such letter is required pursuant to Section 6(p).
(g) The Agent shall have received the certificates required to be delivered pursuant to Section 6(n) and Section 6(r) on or before the date on which delivery of such certificate is required pursuant to Section 6(n) and Section 6(r), respectively.
(h) The Agent shall have received the opinion of Agent Counsel required to be delivered pursuant Section 6(s) on or before the date on which such delivery of such opinion is required pursuant to Section 6(s).
(i) Trading in the Common Stock shall not have been suspended on NASDAQ and the Shares shall have been approved for listing on NASDAQ, subject only to notice of issuance.
(j) All filings with the Commission required by Rule 497 under the 1933 Act to have been filed prior to the sale of Shares hereunder shall have been made within the applicable time period prescribed for such filing by Rule 497.
(k) FINRA shall have confirmed that it has no objection with respect to the fairness and reasonableness of the placement terms and arrangements set forth herein.
Appears in 2 contracts
Samples: Equity Distribution Agreement (Prospect Capital Corp), Equity Distribution Agreement (Prospect Capital Corp)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder shall be subject are subject, to the continuing accuracy and completeness of extent not waived in writing by the Agent, to the condition that all representations and warranties made by of the CompanyPyraMax Parties herein contained are, at and as of the commencement of the Offering and (except to the extent such representations and warranties speak as of an earlier date) at and as of the Closing Date, true and correct in all material respects (except to the extent such representations or warranties are qualified as to materiality, in which case they shall be true and correct in all respects), the Adviser and condition that the Administrator hereinPyraMax Parties shall have performed, in all material respects, all of their obligations hereunder to the due performance by the Company of its obligations hereunder, be performed on or before such dates and to the continuing satisfaction (or waiver by the Agent in its sole discretion) of the following additional further conditions:
(a) At the Closing Date, the PyraMax Parties shall have conducted the Reorganization and the establishment of and contribution to the Foundation of the Foundation Shares in all material respects in accordance with the Plan, the MHC Regulations, the Control Act Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Reorganization imposed upon them by the Federal Reserve, the OCC, the FDIC, and the Commission or any other government authority.
(b) The Registration Statement shall have become been declared effective and shall be available for the sale of all Shares to be issued and sold hereunder.
(b) None of the following events shall have occurred and be continuing: (i) receipt by the Company of any request for additional information from the Commission or any other federal or state governmental authority during the period of effectiveness of the Registration Statement, the response to which would require any amendments or supplements to the Registration Statement or the Prospectus relating to or affecting the Shares; (ii) the issuance by the Commission or any other federal or state governmental authority and the Applications shall have been approved by the Federal Reserve, the OCC and the FDIC, as applicable, as of any the date of this Agreement and, at the Closing Date, no stop order or other action suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, including any notice objecting to the use of the Registration Statement or order pursuant to Section 8(e) of the 1940 Act having shall have been issued and under the 1933 Act or proceedings therefor initiatedinitiated or, or to the knowledge of the CompanyPyraMax Parties, threatened by the Commission; (iii) receipt Commission or any regulatory authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Reorganization shall have been issued, or proceedings therefor initiated or, to the knowledge of the PyraMax Parties, threatened by the Company Federal Reserve, the Commission, the OCC or the FDIC or any other regulatory authority. The Shares and the Foundation Shares shall have been registered for offering and sale or exempted therefrom under the securities or blue sky laws of any notification with respect the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Company.
(c) At the Closing Date, the Agent shall have received:
(1) The opinion, dated as of the Closing Date and addressed to the suspension Agent and for its benefit and upon which Agent’s counsel may rely for purposes of the qualification or exemption from qualification delivering its legal opinion (if any), of any of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (iv) the occurrence of any event that makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or Prospectus so thatXxxx Xxxxxx, PC, in form and substance satisfactory to the case Agent and counsel for the Agent, to the effect as attached hereto as Exhibit A.
(2) In addition, such counsel shall state in a separate letter that during the preparation of the Registration Statement, it will the Prospectus, and the Applications, they participated in conferences with certain officers of, the independent public accountants for, and other representatives of, the PyraMax Parties, at which conferences the contents of the Registration Statement, the Prospectus, the Proxy Statement and the Applications and related matters were discussed and, while such counsel have not confirmed the accuracy or completeness of or otherwise verified the factual information contained in the Registration Statement, the Prospectus, the Proxy Statement and the Applications, and do not assume any responsibility for such information, based upon such conferences and a review of documents deemed relevant for the purpose of rendering their opinion (relying as to materiality as to factual matters on certificates of officers and other factual representations by the PyraMax Parties), nothing has come to their attention that would lead them to believe that the Registration Statement, the Prospectus, the Proxy Statement or any of the Applications, or any amendment or supplement thereto (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein as to which no view need be rendered) contain any an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(d) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Xxxxxx LLP dated the date hereof and addressed to the Agent, such letter (i) confirming that Xxxxxx LLP is a firm of independent public accountants within the meaning of the 1933 Act and the 1933 Act Regulations and the PCAOB, and stating in effect that in the opinion of Xxxxxx LLP, the financial statements of the Bank included in the Prospectus comply as to form in all material respects with the applicable accounting requirements of the 1933 Act and the 1934 Act and the related rules and regulations of the Commission thereunder, the Federal Reserve, the OCC and the FDIC; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with generally accepted auditing standards) consisting of a review (in accordance with Auditing Standard No. 4105) of the latest available unaudited interim financial statements of the Bank prepared by the PyraMax Parties, a reading of the minutes of the meetings of the Board of Directors of the Bank and committees thereof and consultations with officers of the Bank responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) such unaudited financial statements included in the Prospectus are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; or (B) except as stated in such letter, during the period from the date of the latest unaudited financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, there was any increase in borrowings (defined as securities sold under agreements to repurchase and any other form of debt other than deposits), non-performing loans or special mention loans or decrease in the deposits, total assets, total loans, the allowance for loan losses or equity, or there was any decrease in total interest income, net interest income, net interest income after the provision for loan losses, income (loss) before income taxes, or net income (loss) of the Bank for the period commencing immediately after the period covered by the latest unaudited income statement included in the Prospectus and ended not more than three business days prior to the date of the Prospectus as compared to the corresponding period in the preceding year; and (viii) stating that, in addition to the Company’s reasonable determination that audit referred to in its opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (d), they have compared with the general accounting records of the Bank, which are subject to the internal controls of the accounting system of the Bank and other data prepared by the PyraMax Parties from accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus as the Agent may reasonably request, and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(e) At the Closing Date, the Agent shall receive a post-effective amendment letter from Xxxxxx LLP dated the Closing Date, addressed to the Agent, confirming the statements made by its letter delivered pursuant to Section 11(d), the “specified date” referred to in clause (ii)(B) thereof to be a date specified in the letter required by this subsection (e) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(f) At or prior to Closing Date, counsel to the Agent shall have been furnished with such documents as counsel for the Agent may reasonably require for the purpose of enabling them to advise the Agent with respect to the issuance and sale of the Shares and the contribution of the Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations and warranties, or the fulfillment of any of the conditions herein contained.
(g) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and Chief Financial Officer of each of the PyraMax Parties, dated the Closing Date, to the effect that:
(i) they have examined the Registration Statement would and at the time the Registration Statement became effective, the Prospectus did not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
(ii) there has not been, since the respective dates as of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect otherwise than as set forth or contemplated in the Registration Statement and the Prospectus;
(iii) the representations and warranties contained in Section 6 of this Agreement are true and correct with the same force and effect as though made at and as of the Closing Date;
(iv) the PyraMax Parties have complied in all material respects with all agreements and satisfied all conditions on their part to be appropriateperformed or satisfied at or prior to the Closing Date, including the conditions contained in this Section 11;
(v) no stop order has been issued or, to their knowledge, is threatened, by the Commission or any other governmental body;
(vi) no order suspending the Offering, the Reorganization, the acquisition of all outstanding capital stock of the Bank by the Company, the acquisition of a controlling interest in the Company by the MHC, or the effectiveness of the Registration Statement has been issued and, to their knowledge, no proceedings for any such purpose have been initiated or threatened by the Federal Reserve, the Commission, the OCC, the FDIC or any other federal or state authority; and
(vii) to their knowledge, no person has sought to obtain regulatory or judicial review of the action of the Federal Reserve, the FDIC or the OCC in approving the Applications or to enjoin the Reorganization.
(ch) There At the Closing Date, the Agent shall receive a letter from Xxxxxx & Company, Inc., dated as of the Closing Date,
(i) confirming that said firm is independent of the PyraMax Parties and is experienced and expert in the area of corporate appraisals,
(ii) stating in effect that the Appraisal complies in all material respects with the applicable requirements of the MHC Regulations, and
(iii) further stating that its opinion of the aggregate pro forma market value of the PyraMax Parties expressed in the Appraisal as most recently updated, remains in effect.
(i) None of the PyraMax Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement and Prospectus, any material loss or interference with its business from fire, explosion, flood, earthquake or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any changeMaterial Adverse Effect, otherwise than as set forth in the Registration Statement and Prospectus, that is in the Agent’s reasonable judgment sufficiently material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(j) Prior to and at the Closing Date, in the reasonable opinion of the Agent there shall have been no material adverse change in the financial condition or in the earnings or business of any of the PyraMax Parties independently, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and Subsidiaries PyraMax Parties taken as a whole, whether or not arising from transactions and as of the latest dates as of which such condition is set forth in the ordinary course of businessProspectus, except as set forth referred to therein.
(k) At or prior to the Closing Date, (i) a copy of the letter from the Federal Reserve approving the MHC Notice, including the establishment of the Foundation; (ii) a copy of the letter from the Federal Reserve approving the Holding Company Application; (iii) a copy of the letter from the OCC approving the OCC Applications, (iv) a copy of the letter from the FDIC approving the FDIC Application, (v) a copy of the order from the Commission declaring the Registration Statement effective, if available; (vi) a certificate from the FDIC evidencing the Bank’s insurance of accounts; (vii) a certificate from the FHLB-Chicago evidencing the Bank’s membership therein; (viii) a certified copy of each of the Company’s, the Bank’s and the MHC’s Charter and Bylaws, as applicable; and (ix) any other documents that Agent shall reasonably request.
(l) At the Closing Date, the Shares and the Foundation Shares shall have been approved for listing on the Nasdaq Capital Market.
(m) Subsequent to the date hereof, there shall not have occurred any of the following:
(i) a suspension or limitation in trading in securities generally on the New York Stock Exchange, the NASDAQ, or contemplated in the Prospectus over-the-counter market, or quotations halted generally on the OTC Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or by order of the Commission or any other governmental authority other than temporary trading halts;
(ii) a general moratorium on the operations of federally insured financial institutions or a general moratorium on the withdrawal of deposits from commercial banks or other federally insured financial institutions declared by either federal or state authorities; or
(iii) a material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis, including, without limitation, terrorist activities after giving effect to any amendment or supplement thereto) the date hereof, the effect of which, is, in the reasonable judgment of the Agent, is so material and adverse as to make it impractical impracticable to market the Shares or inadvisable to proceed with enforce contracts, including subscriptions or purchase orders, for the offering or delivery sale of the Shares as contemplated by Shares.
(n) Prior to and at the Registration Statement Closing Date, none of the PyraMax Parties will have received from the Federal Reserve, the OCC, or the FDIC any direction (after giving effect oral or written) to make any amendment thereof) and material change in the Prospectus Supplement method of conducting their business with which it has not complied (after giving effect which direction, if any, shall have been disclosed to any amendment or supplement theretothe Agent).
(do) The All such opinions, certificates, letters and documents delivered pursuant to this Section 11 will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the Agent and to counsel for the Agent. Any certificate signed by an officer of any PyraMax Party and delivered to the Agent or to counsel for the Agent shall have received be deemed a representation and warranty by such PyraMax Party to the opinion of Company Counsel required Agent as to be delivered pursuant Section 6(o) on or before the date on which such deliveries of such opinions are required pursuant to Section 6(o)statements made therein.
Appears in 2 contracts
Samples: Agency Agreement (1895 Bancorp of Wisconsin, Inc.), Agency Agreement (1895 Bancorp of Wisconsin, Inc.)
Conditions to the Agent’s Obligations. The obligations of Agent's obligation to sell the Agent Shares and close hereunder shall be subject to the continuing accuracy and completeness of the condition that all representations and warranties made by and other statements herein of the CompanyCompany are true and correct, the Adviser and the Administrator herein, to the due performance by condition that the Company shall have performed all of its obligations hereunder theretofore to be performed prior to the sale of the Shares and closing hereunder, and to the continuing satisfaction (or waiver by the Agent in its sole discretion) of the following additional conditions:
(a) The Registration Statement has been declared effective by the Commission (and the date of effectiveness shall be referred to herein as the "Effective Date"). All filings required by Rules 424, 430A and 434 under the Act shall have become effective and been timely made. No stop order suspending the effectiveness thereof shall be available for the sale of all Shares to be have been issued and sold hereunder.
(b) None no proceeding for that purpose shall have been initiated or, to the knowledge of the following events shall have occurred and be continuing: (i) receipt by the Company of any request for additional information from the Commission or any other federal or state governmental authority during the period of effectiveness of the Registration Statement, the response to which would require any amendments or supplements to the Registration Statement or the Prospectus relating to or affecting the Shares; (ii) the issuance Agent, threatened by the Commission or any other federal state securities commission or state governmental authority of any stop order suspending the effectiveness similar regulatory body. Any request of the Registration Statement or the initiation of any proceedings Commission for that purpose, including any notice objecting additional information (to the use of the Registration Statement or order pursuant to Section 8(e) of the 1940 Act having been issued and proceedings therefor initiated, or to the knowledge of the Company, threatened by the Commission; (iii) receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (iv) the occurrence of any event that makes any statement made be included in the Registration Statement or the Prospectus untrue in any material respect or otherwise) shall have been complied with to the satisfaction of the Agent and its legal counsel.
(b) The Agent shall not have advised the Company that requires the making of any changes in the Registration Statement or Prospectus so thatProspectus, in the case of the Registration Statementor any amendment thereof or supplement thereto, it will not contain contains any untrue statement of a fact which is material fact or omit omits to state any a fact which is material fact and is required to be stated therein or is necessary to make the statements therein not misleading and, that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements contained therein, in the light of the circumstances under which they were made, not misleading; and (vprovided, however, that this Section 8(b) the Company’s reasonable determination that a post-effective amendment shall not apply to statements in, or omissions from, the Registration Statement would be appropriateor Prospectus or any amendment thereof or supplement thereto, which are based upon and conform to written information furnished to the Company by the Agent specifically for use in the preparation of the Registration Statement or the Prospectus, or any such amendment or supplement.
(c) There Subsequent to the Effective Date, and except as contemplated or referred to in the Prospectus, the Company shall not have been incurred any changedirect or contingent liabilities or obligations material to the Company, or entered into any development involving a prospective changematerial transactions, in except liabilities, obligations or affecting the condition (financial or otherwise), earnings, business or properties of the Company and Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except or declared or paid any dividends or made any distribution of any kind with respect to its capital stock; and there shall not have been any change in the capital stock (other than a change in the number of outstanding shares of Common Stock due to the exercise of options or warrants described in the Registration Statement and the Prospectus), or any change in the short-term debt or long-term debt (including capitalized lease obligations) of the Company, or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock of the Company or any change or any development involving a prospective change in or affecting the general affairs, management, financial position, shareholders' equity or results of operations of the Company, otherwise than as set forth in or contemplated in the Prospectus (after giving effect to any amendment or supplement thereto) Prospectus, the effect of which, is, in the reasonable judgment of the Agent, so material and adverse as to make Agent makes it impractical impracticable or inadvisable to proceed with the offering or the delivery of the Shares as contemplated by the Registration Statement (after giving effect to any amendment thereof) and the Prospectus Supplement (after giving effect to any amendment or supplement thereto)being delivered.
(d) The Agent shall have received the opinion of Xxxxxx & Xxxxxx LLP, counsel for the Company, dated the Closing Date, addressed to the Agent covering certain corporate matters to the effect that:
(i) The Company Counsel as been duly incorporated and is validly existing in good standing under the laws of the State of Colorado; has the corporate power to own, lease and operate its properties and conduct its businesses as described in the Prospectus; and is duly qualified to do business as a foreign corporation in good standing in all jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such qualification and in which the failure to be so qualified or in good standing would have a material adverse effect on condition (financial or otherwise), shareholders' equity, results of operations, business, properties or prospects of the Company.
(ii) The Company has the number of authorized and outstanding shares of capital stock of the Company as set forth under the caption "Capitalization" of the Prospectus, and all issued and outstanding capital stock of the Company has been duly authorized and is validly issued, fully paid and nonassessable. There are no statutory preemptive rights, or to the best knowledge of such counsel, no similar subscription or purchase rights of securities holders of the Company with respect to issuance or sale of the Shares and the Warrants by the Company pursuant to this Agreement, and no rights to require registration of shares of Common Stock or other securities of the Company because of the filing of the Registration Statement exist. The Shares and the Warrants conform as to matters of law in all material respects to the description of such made in the Prospectus, and such description accurately sets forth the material legal provisions thereof required to be delivered pursuant Section 6(oset forth in the Prospectus.
(iii) on The Shares have been duly authorized and, upon delivery to the Agent against payment therefor, will be validly issued, fully paid and nonassessable.
(iv) The Warrants have been duly authorized and issued and constitute legal, valid and binding obligations of the Company enforceable in accordance with their terms, except as enforceability thereof may be limited by bankruptcy, insolvency, reorganization or before similar laws effecting creditors' rights generally or by general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law). The Common Stock issuable upon exercise of the date on which such deliveries Warrants has been duly authorized and reserved by the Company and when issued as provided for in the Warrants, will be duly and validly issued, fully paid and non-assessable and will conform in all material respects to the description thereof in the Prospectus.
(v) The certificates evidencing the Shares comply as to form with the applicable provisions of such opinions are required pursuant the laws of the State of Colorado.
(vi) The Agent's Warrant has been duly authorized and issued and constitutes a legal, valid and binding obligation of the Company enforceable in accordance with its terms, except as enforceability thereof may be limited by bankruptcy, insolvency, reorganization or similar laws effecting creditors' rights generally or by general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law). The Common Stock issuable upon exercise of the Agent's Warrant has been duly authorized and reserved by the Company and when issued as provided for in the Agent's Warrant, will be duly and validly issued, fully paid and non-assessable and will conform in all material respects to Section 6(o)the description thereof in the Prospectus.
Appears in 2 contracts
Samples: Agency Agreement (Act Teleconferencing Inc), Agency Agreement (Act Teleconferencing Inc)
Conditions to the Agent’s Obligations. The obligations of the Agent Agents hereunder shall be subject to the continuing accuracy and completeness of the representations and warranties made by the Company, the Adviser and the Administrator herein, to the due performance by the Company of its obligations hereunder, and to the continuing satisfaction (or waiver by the Agent Agents in its their sole discretion) of the following additional conditions:
(a) The Registration Statement shall have become effective and shall be available for the sale of all Shares to be issued and sold hereunder.
(b) None of the following events shall have occurred and be continuing: (i) receipt by the Company of any request for additional information from the Commission or any other federal or state governmental authority during the period of effectiveness of the Registration Statement, the response to which would require any amendments or supplements to the Registration Statement or the Prospectus relating to or affecting the Shares; (ii) the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, including any notice objecting to the use of the Registration Statement or order pursuant to Section 8(e) of the 1940 Act having been issued and proceedings therefor initiated, or to the knowledge of the Company, threatened by the Commission; (iii) receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (iv) the occurrence of any event that makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or Prospectus so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (v) the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate.
(c) There shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and Subsidiaries its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (after giving effect to any amendment or supplement thereto) the effect of which, is, in the reasonable judgment of the Agent, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (after giving effect to any amendment thereof) and the Prospectus Supplement (after giving effect to any amendment or supplement thereto).
(d) The Agent Agents shall have received the opinion opinions of Company Counsel and Maryland Counsel required to be delivered pursuant Section 6(o) on or before the date on which such deliveries of such opinions are required pursuant to Section 6(o).
(e) The Agents shall have received the Comfort Letter required to be delivered pursuant to Section 6(p) on or before the date on which such delivery of such letter is required pursuant to Section 6(p).
(f) The Agents shall have received the certificates required to be delivered pursuant to Section 6(n) and Section 6(q) on or before the date on which delivery of such certificate is required pursuant to Section 6(n) and Section 6(q), respectively.
(g) The Agents shall have received the opinion of Agents Counsel required to be delivered pursuant to Section 6(r) on or before the date on which such delivery of such opinion is required pursuant to Section 6(r).
(h) Trading in the Common Stock shall not have been suspended on Nasdaq.
(i) [Reserved.]
(j) If applicable, FINRA shall have confirmed that it has no objection with respect to the fairness and reasonableness of the placement terms and arrangements set forth herein.
(k) If any condition specified in this Section 7 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Agents by notice to the Company (which termination shall be effective as of the time of the receipt by the Company of such notice), and such termination shall be without liability of any party to any other party except as provided in Section 5 hereof and except that, in the case of any termination of this Agreement, Sections 8, 10, 13, 15 and 16 hereof shall survive such termination and remain in full force and effect.
Appears in 1 contract
Samples: Equity Distribution Agreement (Gladstone Capital Corp)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder shall be and the occurrence of the Closing and the Conversion are subject to the continuing accuracy and completeness of the condition that all representations and warranties made by and other statements of the CompanyHolding Company and the Association herein contained are at and as of the commencement of the Subscription and Community Offering and at and as of the Closing Date, true and correct in all material respects, the Adviser condition that the Holding Company and the Administrator herein, Association shall have performed in all material respects all of their obligations hereunder to the due performance by the Company of its obligations hereunder, be performed on or before such dates and to the continuing satisfaction (or waiver by the Agent in its sole discretion) of the following additional further conditions:
(a) The Registration Statement shall have become been declared effective and shall be available for the sale of all Shares to be issued and sold hereunder.
(b) None of the following events shall have occurred and be continuing: (i) receipt by the Company of any request for additional information from the Commission or any other federal or state governmental authority during the period of effectiveness of the Registration Statement, the response to which would require any amendments or supplements to the Registration Statement or the Prospectus relating to or affecting the Shares; (ii) the issuance by the Commission or any other federal or state governmental authority and the Application approved by the OTS not later than 5:30 p.m. on the date of any this Agreement, and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or the initiation of any proceedings for that purposetherefore initiated or, including any notice objecting to the use of the Registration Statement Company's or order pursuant to Section 8(e) of the 1940 Act having been issued and proceedings therefor initiated, or to the knowledge of the CompanyAssociation's knowledge, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Company's or Association's knowledge, threatened by the OTS, the Commission, or any other governmental body.
(b) At the Closing Date, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Date, of Xxxxxxx, Xxxxxx & Xxxxxxxx, special counsel for the Holding Company and the Association, in form and substance satisfactory to the Agent to the effect that:
(i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Delaware, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus, and to their knowledge is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which the failure to qualify would have a material adverse effect on the financial condition, earnings, capital, properties or business affairs of the Holding Company and the Association considered as a whole.
(ii) The Association is validly existing federally chartered mutual savings and loan association and, at the Closing Date, upon satisfaction of the conditions set forth in the Plan, will become validly existing federally chartered stock savings bank with full power and authority to own its properties and to conduct its business as described in the Prospectus and to enter into this Agreement and perform its obligations hereunder; the activities of the Association as described in the Prospectus are permitted by the rules, regulations and practices of the OTS; the issuance and sale of the capital stock of the Association to the Holding Company has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Association and, upon payment therefore in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable; and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) receipt The Association is a member of the FHLB of Cincinnati and the savings accounts of the Association are insured by the Company of any notification with respect FDIC up to the suspension maximum amount allowed by law and no proceedings for the termination or revocation of such insurance are pending or to such counsel's knowledge threatened; and the description of the qualification or exemption from qualification of any of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (iv) the occurrence of any event that makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or Prospectus so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (v) the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate.
(c) There shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except liquidation account as set forth in or contemplated in the Prospectus (after giving effect under the captions "The Conversion - Effects of Conversion - Effects on Liquidation Rights," and "- Liquidation Rights" has been reviewed by such counsel and, to any amendment the extent that such information constitutes matters of law or supplement thereto) the effect of whichlegal conclusions, is, is accurate in the reasonable judgment of the Agent, so all material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (after giving effect to any amendment thereof) and the Prospectus Supplement (after giving effect to any amendment or supplement thereto)respects.
(d) The Agent shall have received the opinion of Company Counsel required to be delivered pursuant Section 6(o) on or before the date on which such deliveries of such opinions are required pursuant to Section 6(o).
Appears in 1 contract
Conditions to the Agent’s Obligations. The Company and the Agent agree that obligations of the Agent hereunder shall be are subject to the continuing accuracy and completeness of the representations and warranties made by of the Company, Company contained herein as of the Adviser date hereof and the Administrator hereinClosing Time, to the due accuracy of the statements of officers and directors of the Company and its subsidiaries (including the Bank) made pursuant to the provisions hereof, to the performance by the Company and its subsidiaries (including the Bank) of its their obligations hereunder, and to the continuing satisfaction (or waiver by the Agent in its sole discretion) of the following additional further conditions:
(a) The Registration Statement shall have become effective and shall be available for at or before the sale date of all Shares to be issued and sold hereunder.
(b) None of the following events shall have occurred and be continuing: (i) receipt by the Company of any request for additional information from the Commission or any other federal or state governmental authority during the period of effectiveness of the Registration Statementthis Agreement, the response to which would require any amendments or supplements to the Registration Statement or the Prospectus relating to or affecting the Shares; (ii) the issuance by the Commission or any other federal or state governmental authority of any no stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for shall have been issued, and prior to that purposetime, including any notice objecting no stop order proceeding shall have been initiated or, to the use of the Registration Statement or order pursuant to Section 8(e) of the 1940 Act having been issued and proceedings therefor initiated, or to the knowledge of the Company’s knowledge, threatened by the Commission; (iii) receipt by the Company of any notification with respect to the suspension . Any request of the qualification or exemption from qualification Commission for inclusion of any of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (iv) the occurrence of any event that makes any statement made additional information in the Registration Statement or the Prospectus untrue in or otherwise shall have been complied with to the reasonable satisfaction of the Agent and the Company. The Company shall not have filed with the Commission the Prospectus or any material respect amendment or that requires the making of any changes in supplement to the Registration Statement or the Prospectus so without consent of the Agent, which consent shall not have been unreasonably withheld or delayed. The Agent shall not have discovered and disclosed to the Company, on or prior to the date of this Agreement, that the Registration Statement, the General Disclosure Package or the Prospectus or any amendment or supplement to the Registration Statement, the General Disclosure Package or the Prospectus contains an untrue statement of a fact that, in the case reasonable opinion of the Agent, is material or omits to state a fact that, in the reasonable opinion of the Agent, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(b) At the Closing Time, the Agent shall have received:
(i) The favorable opinion, dated as of the Closing Time, of Xxxxxxxxxx Xxxxxxxx, LLP, acceptable to Agent and in form and substance satisfactory to counsel for Agent, as set forth in Exhibit A hereto.
(ii) The letter of Xxxxxxxxxx Xxxxxxxx LLP in form and substance to the effect that during the preparation of the Registration Statement, the General Disclosure Package and the Prospectus, Xxxxxxxxxx Xxxxxxxx LLP participated in conferences with certain officers of and other representatives of the Company and the Bank, counsel to Agent, representatives of the independent public accounting firm for the Company and representatives of Agent at which the contents of the Registration Statement, the General Disclosure Package and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 9(b)(i) hereof) Xxxxxxxxxx Xxxxxxxx LLP has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement, the General Disclosure Package and Prospectus, on the basis of the foregoing, nothing has come to the attention of Xxxxxxxxxx Xxxxxxxx LLP that caused Xxxxxxxxxx Xxxxxxxx LLP to believe that (A) the Registration Statement at the time it will not contain was declared effective by the Commission, (B) the General Disclosure Package as of the time and date as of which the subscription ratio and subscription price were determined and as of the date of such letter and (C) the Prospectus, as of its date and as of the date of such letter, contained or contains any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit omitted to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that counsel need express no comment or opinion with respect to the financial statements, schedules and other financial data included in the Registration Statement, the Prospectus or the General Disclosure Package).
(iii) The favorable opinion, dated as of the Closing Time, of Xxxxx Day, with respect to such matters as the Agent may reasonably require, in form and substance satisfactory to the Agent.
(c) Concurrently with the execution of this Agreement and on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement, Xxxxx Xxxxxxx LLP shall have furnished to the Agent a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to the Agent, containing statements and information of the type ordinarily included in accountants “comfort letters” with respect to the financial statements of the Company and certain financial information contained in the Prospectus.
(d) At the Closing Time, Xxxxx Xxxxxxx LLP shall have delivered a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (c) of this Section, except that the specified date referred to shall be a date not more than three business days prior to the Closing Date.
(e) At the Closing Time, counsel to Agent shall have been furnished with such documents and opinions as counsel for Agent may reasonably require for the purpose of enabling them to advise Agent with respect to the issuance and sale of the Common Stock as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations and warranties, or the fulfillment of any of the conditions herein contained.
(f) At the Closing Time, Agent shall receive a certificate of the Chief Executive Officer and Chief Financial Officer of the Company and the Bank, dated the Closing Time, without personal liability to the effect that: (i) they have examined the Prospectus and at the time the Prospectus became authorized for final use, the Prospectus did not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) there has not been, since the respective dates as of which information is given in the Prospectus, any material adverse change in the financial condition, results of operation, capital, properties or business affairs of the Company and the Bank, considered as one enterprise, whether or not arising in the ordinary course of business; (iii) the representations and warranties contained in Section 6 of this Agreement are true and correct with the same force and effect as though made at and as of the Closing Time; (iv) the Company has complied in all material respects with all material agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Time including the conditions contained in this Section 9; and (v) no stop order has been issued or, to their knowledge, is threatened, by the Company’s reasonable determination that a post-effective amendment to Commission or any other governmental body.
(g) The Company shall not have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and the Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement would be appropriate.
(c) There and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any material change, or any development involving a prospective changematerial change in, in or affecting the condition (general affairs of, management, financial or otherwise)position, retained earnings, business long-term debt, shareholders’ equity or properties results of operations of the Company and Subsidiaries taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except otherwise than as set forth in or contemplated in the Prospectus (after giving effect to any amendment or supplement thereto) Registration Statement and the Prospectus, the effect of which, isin any such case described above, is in the Agent’s reasonable judgment of the Agent, so sufficiently material and adverse as to make it impractical impracticable or inadvisable to proceed with the offering Stock Offering on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Time: (i) in the reasonable opinion of Agent there shall have been no material adverse change in the financial condition or delivery in the earnings, operations, capital, properties or business affairs of the Shares Company and the Bank, considered as one enterprise, from and as of the latest dates as of which such condition is set forth in the Prospectus, except as referred to therein; (ii) there shall have been no material transaction entered into by the Company or the Bank, independently or considered as one enterprise, from the latest date as of which the financial condition of the Company is set forth in the Prospectus, other than transactions referred to or contemplated therein; (iii) neither the Company nor the Bank shall have received from the FDIC or the OTS any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied with in all material respects (which direction, if any, shall have been disclosed to Agent) and which would reasonably be expected to have a Material Adverse Effect; (iv) except as disclosed in the General Disclosure Package and the Prospectus, the Company and its subsidiaries (including the Bank) are not in violation of any enforcement action (formal or informal) from the OTS, the FDIC, or any other agency that has directed the Company or any of its subsidiaries (including the Bank) to make any material change in the method of conducting their respective businesses; (v) neither the Company nor the Bank shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (vi) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, shall be pending or, to the knowledge of the Company or the Bank, threatened against the Company or the Bank or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; and (vii) the Securities shall have been qualified or registered for offering and sale or issuance under the securities or “Blue Sky” laws of the jurisdictions requested by Agent.
(i) At or prior to the Closing Date, the Agent shall receive (i) a copy of the order from the Commission declaring the Registration Statement effective, (after giving effect to ii) a certified copy of the First Amended and Restated Articles of Incorporation of the Company, (iii) a certificate from the FDIC evidencing the Bank’s insurance of accounts, and (vi) any amendment thereof) and the Prospectus Supplement (after giving effect to any amendment or supplement thereto)other documents that Agent shall reasonably request.
(dj) The Subsequent to the date hereof, there shall not have occurred any of the following: (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange, the Nasdaq Global Select Market, the Nasdaq Capital Market or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or FINRA or by order of the Commission or any other governmental authority other than temporary trading halts or limitations (A) imposed as a result of intraday changes in the Dow Xxxxx Industrial Average, (B) lasting no longer than until the regularly scheduled commencement of trading on the next succeeding business-day, and (C) which, when combined with all other such halts occurring during the previous five business days, total less than three; (ii) a general moratorium on the operations of federally-insured financial institutions or general moratorium on the withdrawal of deposits from federally-insured financial institutions declared by either federal or state authorities; (iii) any outbreak of hostilities or escalation thereof or other calamity or crisis, including, without limitation, terrorist activities after the date hereof; or (iv) a material adverse change in the United States financial markets or elsewhere if the effect of any of (i) through (iv) herein, in Agent’s reasonable judgment, makes it impracticable or inadvisable to proceed with the Stock Offering on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(k) Prior to the distribution of the Prospectus, the Agent shall have received an agreement substantially in the opinion form of Exhibit B hereto signed by the persons listed on Schedule A hereto.
(l) All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and of counsel for Agent. Any certificate signed by an officer of the Company Counsel required or the Bank and delivered to Agent or to counsel for Agent shall be deemed a representation and warranty by the Company or the Bank, as the case may be, to Agent as to the statements made therein. If any condition to Agent’s obligations hereunder to be delivered pursuant fulfilled prior to or at the Closing Time is not fulfilled, Agent may terminate this Agreement (provided that if this Agreement is so terminated but the sale of Securities is nevertheless consummated, Agent shall be entitled to the compensation provided for in Section 6(o4 hereof) on or, if Agent so elects, may waive any such conditions which have not been fulfilled or before may extend the date on which such deliveries time of such opinions are their fulfillment.
(m) Prior to the Closing Date, the Company shall have received all necessary Shareholder Approvals required pursuant to Section 6(o)for the consummation of the Stock Offering and performance of its obligations under this Agreement.
Appears in 1 contract
Samples: Agency Agreement (PVF Capital Corp)
Conditions to the Agent’s Obligations. The obligations ------------------------------------- of the Agent hereunder shall be and the occurrence of the Closing and the Conversion are subject to the continuing accuracy and completeness of the condition that all representations and warranties made by of the CompanyPrimary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct, the Adviser and condition that the Administrator hereinPrimary Parties shall have performed, in all material respects, all of their obligations hereunder to the due performance by the Company of its obligations hereunder, be performed on or before such dates and to the continuing satisfaction (or waiver by the Agent in its sole discretion) of the following additional further conditions:
(a) The Registration Statement shall have become been declared effective by the Commission, the Application and the Conversion and Massachusetts Application shall be available have been approved by the FDIC and the Commissioner, as applicable, the Holding Company Application shall have been approved by the FRB, and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act to any of the Primary Parties' best knowledge or proceedings therefor initiated or threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the sale Prospectus or the consummation of all Shares the Conversion shall have been issued to be issued and sold hereunderany of the Primary Parties' best knowledge, or proceedings therefor initiated or threatened by the FDIC, the Commissioner, the FRB, the Commission, or any other governmental body.
(b) None At the Closing Date, the Agent shall have received:
(1) The opinion, dated as of the following events shall have occurred Closing Date, of Xxxxxxx Xxxxxxxx, and/or local counsel acceptable to the Agent, in form and be continuing: substance satisfactory to the Agent and counsel for the Agent to the effect that:
(i) receipt The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the Commonwealth of Massachusetts, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus, and is duly qualified to transact business and is in good standing in Massachusetts and in each other jurisdiction in which the conduct of its business requires such qualification and except where the failure to qualify would have a Material Adverse Effect.
(ii) On the date hereof, the Bank is a validly existing Massachusetts-chartered stock savings bank, and upon consummation of the Conversion, the Bank will continue to be a validly existing Massachusetts-chartered stock savings bank, with full power and authority to own its properties and to conduct its business as described in the Prospectus and to enter into this Agreement and perform its obligations hereunder; the activities of the Bank as described in the Prospectus are permitted by federal and Massachusetts law and the rules, regulations and practices of the FDIC and the Commissioner; the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Company Holding Company, free and clear of any request mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The activities of the Holding Company and the Bank, as described in the Prospectus, are permitted for additional information from bank holding companies and for subsidiaries of a bank holding company and a Massachusetts- chartered stock holding company under applicable federal and state law. To the Commission best of such counsel's knowledge, each of the Holding Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorization are in full force and effect, and to the best of such counsel's knowledge the Holding Company and the Bank are complying therewith in all material respects.
(iv) The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and to such counsel's knowledge, no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or threatened.
(v) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption "Capitalization", and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date (except for the shares issued upon incorporation of the Holding Company to facilitate the Conversion); (b) the shares of Common Stock of the Holding Company to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (c) the issuance of the Shares is not subject to preemptive rights under the charter, articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or, to the best knowledge of such counsel, under any contract, indenture, agreement, instrument or other document, except for the subscription rights under the Plan.
(vi) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except as rights to indemnity and contribution thereunder may be limited under applicable law, subject to the qualification that (i) enforcement thereof may be limited by bankruptcy, insolvency, moratorium, reorganization or other laws (including the laws of fraudulent conveyance) or judicial decisions affecting the enforceability of creditors' rights generally, the rights of creditors of savings bank or other financial institutions, the accounts of which are insured by the FDIC, or the reorganization of financial institutions and (ii) enforcement thereof is subject to general equity principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) and to the effect of certain laws and judicial decisions upon the availability of injunctive relief and enforceability of equitable remedies, including the remedies of specific performance and self-help.
(vii) The Plan has been duly adopted by the Board of Trustees of the Bank and by the corporators of the Bank, in the manner required by the Conversion Regulations and the Bank's amended and restated charter and bylaws.
(viii) The Massachusetts Application has been approved by the Commissioner, the FRB has approved the Holding Company Application, and the Bank has received the non-objection of the FDIC to the Conversion, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state governmental authority during regulatory agency, public board or body is required in connection with the period execution and delivery of effectiveness this Agreement, the offer, sale and issuance of the Registration StatementShares and the consummation of the Conversion, except as may be required under the response securities or "blue sky" laws of various jurisdictions as to which would require any amendments or supplements to the no opinion need be rendered.
(ix) The Registration Statement or has become effective under the Prospectus relating 1933 Act and to or affecting the Shares; (ii) the issuance by the Commission or any other federal or state governmental authority of any such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued, or the initiation of any proceedings for that purpose, including any notice objecting to the use of the Registration Statement purpose have been instituted or order pursuant to Section 8(e) of the 1940 Act having been issued and proceedings therefor initiated, or to the knowledge of the Company, threatened by the Commission; .
(iiix) receipt by The terms and provisions of the Company shares of any notification with respect Common Stock conform to the suspension of the qualification or exemption from qualification of any of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (iv) the occurrence of any event that makes any statement made description thereof contained in the Registration Statement and the Prospectus, and the forms of certificates proposed to be used to evidence the shares of Common Stock are in due and proper form.
(xi) At the time the Conversion Application and the Massachusetts Application was approved, the Conversion Application (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the FDIC and the Commissioner, except as modified or waived in writing by the FDIC and/or the Commissioner (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel's knowledge, no person has sought to obtain regulatory or judicial review of the final action of the FDIC, the Commissioner, or the Prospectus untrue in any material respect or FRB approving the Applications.
(xii) At the time that requires the making of any changes in the Registration Statement or Prospectus so that, in the case of became effective the Registration Statement, it will not contain any untrue statement of a including the Prospectus contained therein (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion), complied as to form in all material fact or omit to state any material fact required to be stated therein or necessary to make respects with the statements therein not misleading and, that in the case requirements of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make 1933 Act and the statements therein, in the light of the circumstances under which they were made, not misleading; rules and (v) the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriateregulations promulgated thereunder.
(cxiii) There shall not have been any changeTo such counsel's knowledge, there are no legal or governmental proceedings pending, or any development involving a prospective changethreatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, in sale or affecting the condition (financial or otherwise), earnings, business or properties issuance of the Company and Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated Shares.
(xiv) The information in the Prospectus under the captions "Regulation," "Taxation," "Restrictions on the Acquisition of Port Financial Corp. and Cambridgeport Bank," "Description of Capital Stock of Port Financial Corp.," and "The Conversion and the Offering," to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects (after giving effect other than the financial statements, notes to any amendment or supplement thereto) financial statements, financial tables and other financial and statistical data included therein and the effect of which, is, in appraisal valuation and the reasonable judgment of the Agent, so material and adverse business plan as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (after giving effect to any amendment thereof) and the Prospectus Supplement (after giving effect to any amendment or supplement theretowhich counsel need express no opinion).
(d) The Agent shall have received the opinion of Company Counsel required to be delivered pursuant Section 6(o) on or before the date on which such deliveries of such opinions are required pursuant to Section 6(o).
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder shall be subject to the continuing accuracy and completeness of the representations and warranties made by the Company, the Adviser and the Administrator herein, to the due performance by the Company of its obligations hereunder, and to the continuing satisfaction (or waiver by the Agent in its sole discretion) of the following additional conditions:
(a) The Registration Statement shall have become effective and shall be available for the sale of all Shares Notes to be issued and sold hereunder.
(b) None of the following events shall have occurred and be continuing: (i) receipt by the Company of any request for additional information from the Commission or any other federal or state governmental authority during the period of effectiveness of the Registration Statement, the response to which would require any amendments or supplements to the Registration Statement or the Prospectus relating to or affecting the SharesNotes; (ii) the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of or preventing the use of, the Registration Statement or the Prospectus or the initiation of any proceedings for that purpose, including any notice objecting to the use of the Registration Statement or order pursuant to Section 8(e) of the 1940 Act having been issued and proceedings therefor initiated, or to the knowledge of the Company, threatened by the Commission; (iii) receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Shares Notes for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (iv) the occurrence of any event that makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or Prospectus so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (v) the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate.
(c) There shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and Subsidiaries its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (after giving effect to any amendment or supplement thereto) the effect of which, is, in the reasonable judgment of the Agent, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares Notes as contemplated by the Registration Statement (after giving effect to any amendment thereof) and the Prospectus Supplement (after giving effect to any amendment or supplement thereto).
(d) The Agent shall have received the opinion opinions of Company Counsel and Counsel required to be delivered pursuant Section 6(o) on or before the date on which such deliveries delivery of such opinions are is required pursuant to Section 6(o).
(e) The Agent shall have received the opinion of Maryland Counsel required to be delivered pursuant Section 6(p) on or before the date on which such delivery of such opinion is required pursuant to Section 6(p).
(f) The Agent shall have received the Comfort Letter required to be delivered pursuant Section 6(q) on or before the date on which such delivery of such letter is required pursuant to Section 6(q).
(g) The Agent shall have received the certificates required to be delivered pursuant to Section 6(n) and Section 6(r) on or before the date on which delivery of such certificate is required pursuant to Section 6(n) and Section 6(r), respectively.
(h) The Agent shall have received the opinion of Agent Counsel required to be delivered pursuant Section 6(s) on or before the date on which such delivery of such opinion is required pursuant to Section 6(s).
(i) The Notes shall either have been (i) approved for listing on the NYSE or (ii) the Company shall have submitted to the NYSE a Supplemental Listing Application for listing of the Notes on the NYSE at, or prior to, the issuance of any Placement Notice.
(j) Trading in the 2024 Notes, 2028 Notes, 2029 Notes or the Notes shall not have been suspended on the NYSE.
(k) The Notes shall be rated at least BBB- by Standard & Poor’s Ratings Services and at least BBB by Xxxxx Bond Rating Agency, Inc.
(l) On or after each Applicable Time and each Settlement Date (i) no downgrading shall have occurred in the rating accorded to the Company’s debt securities (including the 2024 Notes, the 2028 Notes, the 2029 Notes and the Notes) by any “nationally recognized statistical rating organization”, as that 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, with possible negative implications, its rating of any of the Company’s debt securities (including the 2024 Notes, the 2028 Notes, the 2029 Notes and the Notes).
(m) All filings with the Commission required by Rule 497 under the 1933 Act to have been filed prior to the sale of Notes hereunder shall have been made within the applicable time period prescribed for such filing by Rule 497.
(n) FINRA shall have confirmed that it has no objection with respect to the fairness and reasonableness of the placement terms and arrangements set forth herein.
Appears in 1 contract
Samples: Debt Distribution Agreement (Prospect Capital Corp)
Conditions to the Agent’s Obligations. (a) The obligations of the Agent hereunder shall be and the occurrence of the Closing are subject to the continuing accuracy condition that the Company has received and completeness of accepted subscriptions for the Requisite Amount prior to the Expiration Date, all representations and warranties made by of the CompanyPrimary Parties herein contained are, at and as of the commencement of the Offerings and at and as of the Closing Date, true and correct, the Adviser and condition that the Administrator hereinPrimary Parties shall have performed, in all material respects, all of their obligations hereunder to the due performance by the Company of its obligations hereunder, be performed on or before such dates and to the continuing satisfaction (or waiver by the Agent in its sole discretion) of the following additional further conditions:
(ai) The the Prospectus shall have been timely filed by the Company with the Commission in accordance with the terms of this Agreement;
(ii) the Registration Statement shall have become effective and shall be available for at or before the sale date of all Shares to be issued and sold hereunder.
(b) None of the following events shall have occurred and be continuing: (i) receipt by the Company of any request for additional information from the Commission or any other federal or state governmental authority during the period of effectiveness of the Registration Statementthis Agreement, the response to which would require any amendments or supplements to the Registration Statement or the Prospectus relating to or affecting the Shares; (ii) the issuance by the Commission or any other federal or state governmental authority of any no stop order suspending the effectiveness of the Registration Statement shall have been issued, and prior to that time, no stop order proceeding shall have been initiated or the initiation of any proceedings for that purpose, including any notice objecting to the use of the Registration Statement or order pursuant to Section 8(e) of the 1940 Act having been issued and proceedings therefor initiated, or to the knowledge of the Company, threatened by the Commission; ;
(iii) receipt by the Company of any notification with respect to the suspension request of the qualification or exemption from qualification Commission for inclusion of any of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (iv) the occurrence of any event that makes any statement made additional information in the Registration Statement or the Prospectus untrue in or otherwise shall have been complied with;
(iv) the Company shall not have filed with the Commission the Prospectus or any material respect amendment or that requires the making of any changes in supplement to the Registration Statement or the Prospectus so without consent of the Agent, which consent shall not have been unreasonably withheld or delayed;
(v) the Agent shall not have discovered and disclosed to the Company, on or prior to the date of this Agreement, that the Registration Statement or the Prospectus or any amendment or supplement to the Registration Statement or the Prospectus contains an untrue statement of a fact that, in the case reasonable opinion of the Registration StatementAgent, it will not contain any untrue statement of a is material fact or omit omits to state any a fact that, in the reasonable opinion of that counsel, is material fact and is required to be stated therein or is necessary to make the statements therein not misleading misleading; and
(vi) all corporate proceedings and other legal matters incident to the authorization, that in form and validity of this Agreement and the case Rights and the Common Stock and the form of the Registration Statement and the Prospectus, it and all other legal matters relating to this Agreement and the transactions contemplated by this Agreement are reasonably satisfactory in all material respects to the Agent and its counsel, and the Company has furnished to the Agent and such counsel all documents and information that they may reasonably request to enable them to pass upon those matters.
(b) At the Closing Date, the Agent shall have received:
(i) The opinion, dated as of the Closing Date, of Thompson Hine LLP and/or local counsel acceptable to the Xxxnx, xn form and substance satisfactory to the Agent and counsel for the Agent to the effect that:
(A) the Company and each of the Subsidiaries other than the Bank is a corporation duly organized and validly existing and in good standing under the laws of the State of Ohio, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus, and is duly qualified to transact business and is in good standing in Ohio and in each other jurisdiction in which the conduct of its business requires such qualification and except where the failure to qualify would have a Material Adverse Effect;
(B) the Company has the corporate power and authority to enter into and perform this Agreement and to issue and deliver the Rights and the shares of Common Stock issuable in the Offerings, and this Agreement and the Subscription Agent Agreement have each been duly authorized, and duly executed and delivered by the Company in accordance with the laws of the State of Ohio and, assuming due authorization, execution and delivery of each of such agreements by the other parties to it, each constitutes the valid and binding obligation of the Company enforceable against the Company in accordance with its terms, subject to the qualification that (i) enforcement thereof may be limited by bankruptcy, insolvency, moratorium, reorganization or other laws (including the laws of fraudulent conveyance) or judicial decisions affecting the enforceability of creditors' rights generally, the rights of creditors of savings banks or financial institutions, the accounts of which are insured by the FDIC, and (ii) enforcement thereof is subject to general equity principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) and to the effect of certain laws and judicial decisions upon the availability of injunctive relief and enforceability of equitable remedies, including the remedies of specific performance and self-help;
(C) to such counsel's knowledge, the execution, delivery and performance of this Agreement and the Subscription Agent Agreement by the Company will not contain conflict with, or result in the creation of imposition of any untrue statement material lien, charge or encumbrance upon any of the assets of the Company or result in a material fact violation of the articles of incorporation or omit bylaws of the Company or the Act or the Exchange Act;
(D) on the date hereof, the Bank is a validly existing Ohio- chartered stock savings bank, with full power and authority to own its properties and to conduct its business as described in the Prospectus and to enter into this Agreement and perform its obligations hereunder; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the ODFI, FDIC and the OTS. Similarly, any subsidiaries of the Bank are validly existing corporations in good standing in the jurisdiction of incorporation and authorized under state and applicable federal law to conduct the businesses in which they now engage;
(E) to the best of such counsel's knowledge, each of the Company and the Subsidiaries has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorization are in full force and effect, and, to the best of such counsel's knowledge, the Company and the Subsidiaries comply therewith in all material respects;
(F) the Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and, to such counsel's knowledge, no proceedings for the termination or revocation of the federal or state deposit insurance of the Bank are pending or threatened;
(G) upon consummation of the Offerings, (i) the authorized, issued and outstanding capital stock of the Company will be within the range set forth in the Prospectus under the caption "Capitalization,"; (ii) the Rights have been duly authorized and validly issued; (iii) the shares to be sold in the Offerings will have been duly and validly authorized for issuance, and when issued and delivered by the Company against payment of the consideration in accordance with this Agreement will be fully paid and nonassessable; and (iv) the issuance of the Common Stock is not subject to preemptive rights under the charter, articles of incorporation or bylaws of the Company, or arising or outstanding by operation of law or, to the best knowledge of such counsel, under any contract, indenture, agreement, instrument or other document;
(H) the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Bank; and this Agreement constitutes a valid, legal and binding obligation of the Bank, enforceable in accordance with its terms, except as rights to indemnity and contribution thereunder may be limited under applicable law, subject to the qualification that (i) enforcement thereof may be limited by bankruptcy, insolvency, moratorium, reorganization or other laws (including the laws of fraudulent conveyance) or judicial decisions affecting the enforceability of creditors' rights generally, the rights of creditors of savings banks or financial institutions, the accounts of which are insured by the FDIC, and (ii) enforcement thereof is subject to general equity principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) and to the effect of certain laws and judicial decisions upon the availability of injunctive relief and enforceability of equitable remedies, including the remedies of specific performance and self-help;
(I) all required action has been taken by the Company under the Act and the Exchange Act to issue the Rights and to make the Offerings and consummate the sale of the Common Stock contemplated by this Agreement. No further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement or the Subscription Agent Agreement, the Offerings, sale and issuance of the Rights and the Common Stock, except such, if any, as has been obtained under the Act, the Exchange Act, blue sky or state securities laws and the rules and regulations of the NASD, as to which such counsel need not express any opinion;
(J) the Registration Statement has become effective under the Act, no stop order suspending the effectiveness of the Registration Statement has been issued, and, to such counsel's knowledge, no proceedings for that purpose have been instituted or threatened by the Commission;
(K) the form of subscription document used to evidence the Rights, and the forms of certificates used to evidence the shares of Common Stock have been approved by the Board of Directors of the Company, comply with the articles of incorporation and the bylaws of the Company, and comply in all material fact respects with all provisions of Ohio corporate law and all applicable Nasdaq requirements;
(L) the Common Stock is listed on The Nasdaq Stock Market and is registered under the Exchange Act;
(M) there are no preemptive, or to such counsel's knowledge, other rights (other than the Rights) to subscribe for or to purchase the Rights nor any restrictions upon the voting or transfer of the Common Stock pursuant to the Company's articles of incorporation or bylaws nor any agreements or other outstanding instruments known to such counsel;
(N) the Rights and the Common Stock comply in all material respects with the statements concerning them contained in the Prospectus;
(O) at the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus contained therein (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion), complied as to form in all material respects with the requirements of the Act and the Rules and Regulations;
(P) there are no legal or governmental proceedings pending or, to such counsel's knowledge, threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Offerings, sale or issuance of the Common Stock;
(Q) to such counsel's knowledge, there are no contracts or other documents that are required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (v) the Company’s reasonable determination that a post-effective amendment filed as exhibits to the Registration Statement would be appropriate.by the Act or by the Rules and Regulations that have not been filed as exhibits to the Registration Statement or incorporated in the Registration Statement by reference as permitted by the Rules and Regulations;
(cR) There shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated information in the Prospectus (after giving effect under the captions "Summary," "Background," "Questions and Answers About The Offerings," "Risk Factors," "Forward-Looking Statements," "Regulation and Supervision," "The Offerings," "Plan of Distribution," and "Description of Common Stock," to any amendment the extent that it constitutes matters of law or supplement thereto) the effect of whichlegal conclusions, is, in the reasonable judgment of the Agent, so material has been reviewed by counsel and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (after giving effect to any amendment thereof) and the Prospectus Supplement (after giving effect to any amendment or supplement thereto)fairly presents information disclosed therein.
(d) The Agent shall have received the opinion of Company Counsel required to be delivered pursuant Section 6(o) on or before the date on which such deliveries of such opinions are required pursuant to Section 6(o).
Appears in 1 contract
Samples: Agency Agreement (Metropolitan Financial Corp /Oh/)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder shall be subject to the continuing accuracy and completeness of the representations and warranties made by the Company, the Adviser and the Administrator herein, to the due performance by the Company of its obligations hereunder, and to the continuing satisfaction (or waiver by the Agent in its sole discretion) of the following additional conditions:
(a) The Registration Statement shall have become effective and shall be available for the sale of all Shares Notes to be issued and sold hereunder.
(b) None of the following events shall have occurred and be continuing: (i) receipt by the Company of any request for additional information from the Commission or any other federal or state governmental authority during the period of effectiveness of the Registration Statement, the response to which would require any amendments or supplements to the Registration Statement or the Prospectus relating to or affecting the SharesNotes; (ii) the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of or preventing the use of, the Registration Statement or the Prospectus or the initiation of any proceedings for that purpose, including any notice objecting to the use of the Registration Statement or order pursuant to Section 8(e) of the 1940 Act having been issued and proceedings therefor initiated, or to the knowledge of the Company, threatened by the Commission; (iii) receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Shares Notes for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (iv) the occurrence of any event that makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or Prospectus so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (v) the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate.
(c) There shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and Subsidiaries its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (after giving effect to any amendment or supplement thereto) the effect of which, is, in the reasonable judgment of the Agent, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares Notes as contemplated by the Registration Statement (after giving effect to any amendment thereof) and the Prospectus Supplement (after giving effect to any amendment or supplement thereto).
(d) The Agent shall have received the opinion opinions of Company Counsel and Counsel required to be delivered pursuant Section 6(o) on or before the date on which such deliveries delivery of such opinions are is required pursuant to Section 6(o).
(e) The Agent shall have received the opinion of Maryland Counsel required to be delivered pursuant Section 6(p) on or before the date on which such delivery of such opinion is required pursuant to Section 6(p).
(f) The Agent shall have received the Comfort Letter required to be delivered pursuant Section 6(q) on or before the date on which such delivery of such letter is required pursuant to Section 6(q).
(g) The Agent shall have received the certificates required to be delivered pursuant to Section 6(n) and Section 6(r) on or before the date on which delivery of such certificate is required pursuant to Section 6(n) and Section 6(r), respectively.
(h) The Agent shall have received the opinion of Agent Counsel required to be delivered pursuant Section 6(s) on or before the date on which such delivery of such opinion is required pursuant to Section 6(s).
(i) The Notes shall either have been (i) approved for listing on the NYSE or (ii) the Company shall have submitted to the NYSE a Supplemental Listing Application for listing of the Notes on the NYSE at, or prior to, the issuance of any Placement Notice.
(j) Trading in the 2024 Notes, the 2028 Notes, the 2029 Notes or the Notes shall not have been suspended on the NYSE.
(k) The Notes shall be rated at least BBB- by Standard & Poor’s Ratings Services and at least BBB by Xxxxx Bond Rating Agency, Inc.
(l) On or after each Applicable Time and each Settlement Date (i) no downgrading shall have occurred in the rating accorded to the Company’s debt securities (including the 2024 Notes, the 2028 Notes, the 2029 Notes and the Notes) by any “nationally recognized statistical rating organization”, as that 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, with possible negative implications, its rating of any of the Company’s debt securities (including the 2024 Notes, the 2028 Notes, the 2029 Notes and the Notes).
(m) All filings with the Commission required by Rule 497 under the 1933 Act to have been filed prior to the sale of Notes hereunder shall have been made within the applicable time period prescribed for such filing by Rule 497.
(n) FINRA shall have confirmed that it has no objection with respect to the fairness and reasonableness of the placement terms and arrangements set forth herein.
Appears in 1 contract
Samples: Debt Distribution Agreement (Prospect Capital Corp)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder shall be subject to the continuing accuracy and completeness of the representations and warranties made by the Company, the Adviser and the Administrator herein, to the due performance by the Company of its obligations hereunder, and to the continuing satisfaction (or waiver by the Agent in its sole discretion) of the following additional conditions:
(a) The Registration Statement shall have become effective and shall be available for the sale of all Shares to be issued and sold hereunder.
(b) None of the following events shall have occurred and be continuing: (i) receipt by the Company of any request for additional information from the Commission or any other federal or state governmental authority during the period of effectiveness of the Registration Statement, the response to which would require any amendments or supplements to the Registration Statement or the Prospectus relating to or affecting the Shares; (ii) the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of or preventing the use of, the Registration Statement or the Prospectus or the initiation of any proceedings for that purpose, including any notice objecting to the use of the Registration Statement or order pursuant to Section 8(e) of the 1940 Investment Company Act having been issued and proceedings therefor initiated, or to the knowledge of the Company, threatened by the Commission; (iii) receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (iv) the occurrence of any event that makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or Prospectus so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (v) the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate.
(c) There shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and Subsidiaries its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (after giving effect to any amendment or supplement thereto) the effect of which, is, in the reasonable judgment of the Agent, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (after giving effect to any amendment thereof) and the Prospectus Supplement (after giving effect to any amendment or supplement thereto).
(d) The Agent shall have received the opinion opinions of Company Counsel and General Counsel required to be delivered pursuant Section 6(o) on or before the date on which such deliveries delivery of such opinions are is required pursuant to Section 6(o).
(e) The Agent shall have received the opinion of Maryland Counsel required to be delivered pursuant Section 6(p) on or before the date on which such delivery of such opinion is required pursuant to Section 6(p).
(f) The Agent shall have received the Comfort Letter required to be delivered pursuant Section 6(q) on or before the date on which such delivery of such letter is required pursuant to Section 6(q).
(g) The Agent shall have received the certificates required to be delivered pursuant to Section 6(n) and Section 6(r) on or before the date on which delivery of such certificate is required pursuant to Section 6(n) and Section 6(r), respectively.
(h) The Agent shall have received the opinion of Agent Counsel required to be delivered pursuant Section 6(s) on or before the date on which such delivery of such opinion is required pursuant to Section 6(s).
(i) Trading in the Common Stock shall not have been suspended on NASDAQ and the Shares shall have been approved for listing on NASDAQ, subject only to notice of issuance.
(j) All filings with the Commission required by Rule 497 under the 1933 Act to have been filed prior to the sale of Shares hereunder shall have been made within the applicable time period prescribed for such filing by Rule 497.
(k) FINRA shall have confirmed that it has no objection with respect to the fairness and reasonableness of the placement terms and arrangements set forth herein.
Appears in 1 contract
Samples: Equity Distribution Agreement (Prospect Capital Corp)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder shall with respect to a Placement will be subject to the continuing accuracy and completeness of the representations and warranties made by the Company, the Adviser and the Administrator Company herein, to the due performance by the Company of its obligations hereunder, hereunder and to the continuing satisfaction (or waiver by the Agent in its sole discretion) of the following additional conditions:
(a) The Registration Statement shall have become effective and shall be available for the sale of (i) all Placement Shares issued pursuant to all prior Placements and not yet sold by the Agent and (ii) all Placement Shares contemplated to be issued and sold hereunderby the Placement Notice relating to such Placement.
(b) None of the following events shall have occurred and be continuing: (i) receipt by the Company of any request for additional information from the Commission Commission, a Canadian Qualifying Authority or any other federal or state governmental authority during the period of effectiveness of the Registration Statement, the response to which would require any amendments or supplements to the Registration Statement Statement, the Prospectus or the Canadian Prospectus relating to or affecting the Placement Shares; (ii) the issuance by the Commission Commission, a Canadian Qualifying Authority or any other federal or state governmental authority of any stop order suspending the effectiveness of the Registration Statement or Canadian Prospectus or the initiation of any proceedings for that purpose, including any notice objecting to the use of the Registration Statement or order pursuant to Section 8(e) of the 1940 Act Canadian Prospectus having been issued and proceedings therefor initiated, or to the knowledge of the Company, threatened by the CommissionCommission or a Canadian Qualifying Authority; (iii) receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Placement Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (iv) the occurrence of any event that makes any statement made in the Registration Statement or the Prospectus or Canadian Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in the Registration Statement or Prospectus or Canadian Prospectus so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, that in the case of the Prospectus or Canadian Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (v) the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate.
(c) There The Agent shall not have advised the Company that the Registration Statement or Prospectus or Canadian Prospectus, or any amendment or supplement thereto, contains an untrue statement of a material fact regarding the Agent that in the Agent’s opinion is material, or omits to state a fact regarding the Agent that in the Agent’s opinion is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which it was made, not misleading.
(d) Except as contemplated or disclosed in the Prospectus, there shall not have been any material change, on a consolidated basis, in the authorized capital stock of the Company or any Material Adverse Effect, or any development involving that may reasonably be expected to cause a prospective changeMaterial Adverse Effect, or a downgrading in or affecting the condition (financial or otherwise), earnings, business or properties withdrawal of the Company and Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (after giving effect rating assigned to any amendment of the Company’s securities by any rating organization or supplement thereto) a public announcement by any rating organization that it has under surveillance or review its rating of any of the Company’s securities, the effect of which, isin the case of any such action by a rating organization described above, in the reasonable sole judgment of the AgentAgent (without relieving the Company of any obligation or liability it may otherwise have), is so material and adverse as to make it impractical impracticable or inadvisable to proceed with the offering or delivery of the Placement Shares as on the terms and in the manner contemplated by in the Registration Statement (after giving effect to any amendment thereof) and the Prospectus Supplement (after giving effect to any amendment or supplement thereto)Prospectus.
(de) The Agent shall have received the opinion of Company Counsel, opinion of Canadian Counsel and the Title Opinions required to be delivered pursuant Section 6(o7(k) on or before the date on which such deliveries delivery of such opinions are required pursuant to Section 6(o7(k).
(f) The Agent shall have received the Comfort Letter required to be delivered pursuant Section 7(l) on or before the date on which such delivery of such letter or certification is required pursuant to Section 7(l).
(g) The Agent shall have received the certificates required to be delivered pursuant to Section 7(j) and Section 7(m) on or before the date on which delivery of such certificate is required pursuant to Section 7(j) and Section 7(m), respectively.
(h) Trading in Common Stock shall not have been suspended on the Exchange or the TSX. FINRA shall not have objected to the fairness or reasonableness of the terms or arrangements under this Agreement.
(i) On each date on which the Company is required to deliver a certificate pursuant to Section 7(j), the Company shall have furnished to the Agent such appropriate further information, certificates and documents as the Agent may reasonably request, including without limitation a certificate of the Secretary of the Company. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof. The Company will furnish the Agent with such conformed copies of such opinions, certificates, letters and other documents as the Agent shall reasonably request.
(j) All filings with the Commission required by the applicable paragraph of Rule 424(b) under the Securities Act to have been filed prior to the giving of any Placement Notice hereunder shall have been made within the applicable time period prescribed for such filing by the applicable paragraph of Rule 424(b).
(k) The Placement Shares shall have been conditionally approved for listing on the Exchange and the TSX, subject only to notice of issuance and delivery of customary post-issuance documentation, or the Company shall have filed an application for listing of the Placement Shares on the Exchange and the TSX at, or prior to, the issuance of any Placement Notice.
Appears in 1 contract
Conditions to the Agent’s Obligations. The Agent's obligations of the Agent hereunder shall be subject hereunder, as to the continuing accuracy and completeness of Shares to be delivered at the Closing Date, are subject, to the extent not waived by the Agent, to the condition that all representations and warranties made by of the Company, the Adviser MHC and the Administrator hereinBank herein are, at and as of the commencement of the Offerings and at and as of the Closing Date, true and correct in all material respects, the condition that the Company, the MHC and the Bank shall have performed all of their obligations hereunder to the due performance by the Company of its obligations hereunderbe performed on or before such dates, and to the continuing satisfaction (or waiver by the Agent in its sole discretion) of the following additional further conditions:
(a) At the Closing Date, the Company, the MHC and the Bank shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations, and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the OTS.
(b) The Registration Statement shall have become been declared effective and shall be available for the sale of all Shares to be issued and sold hereunder.
(b) None of the following events shall have occurred and be continuing: (i) receipt by the Company of any request for additional information from the Commission or any other federal or state governmental authority during the period of effectiveness of the Registration StatementCommission, the response to which would require any amendments or supplements to the Registration Statement or the Prospectus relating to or affecting the Shares; (ii) the issuance Conversion Application approved by the Commission OTS, not later than 5:30 p.m. on the date of this Agreement, or any other federal or state governmental authority of any with the Agent's consent at a later time and date; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or threatened by the Commission, or any state authority and no order or other action suspending the authorization of the Prospectus or the initiation consummation of any the Conversion shall have been issued or proceedings for that purposetherefore initiated or, including any notice objecting to the use of Company's, the Registration Statement MHC's or order pursuant to Section 8(e) of the 1940 Act having been issued and proceedings therefor initiated, or to the knowledge of the CompanyBank's knowledge, threatened by the Commission; , the OTS or any state authority.
(c) At the Closing Date, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Peabody & Brown, special counsel for the Company, the MHC and the Bxxx, in form and substance to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation under the laws of the State of Delaware and has 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. All of the outstanding capital stock of the Company is duly authorized and validly issued, fully paid and non-assessable.
(ii) The Bank has been duly organized and is a validly existing federal savings association in capital stock form of organization, duly authorized to conduct its business and own its property as described in the Registration Statement and Prospectus. All of the outstanding capital stock of the Bank is duly authorized and validly issued, fully paid and non-assessable and owned by the Company, free and clear of any liens, encumbrances, claims or other restrictions.
(iii) receipt The MHC has been duly organized and is a validly existing federal mutual holding company duly authorized to conduct its business and own its property as described in the Registration Statement and Prospectus.
(iv) The Bank is a member of the FHLB-Atlanta. The deposit accounts of the Bank are insured by the FDIC up to the maximum amount allowed under law and no proceedings for the termination or revocation of such insurance are pending or, to such counsel's Actual Knowledge, threatened; the description of the liquidation account as set forth in the Prospectus under the caption "The Conversion and Reorganization-Liquidation Rights" to the extent that such information constitutes matters of law and legal conclusions has been reviewed by such counsel and is accurate in all material respects.
(v) Upon consummation of the Conversion, the authorized, issued and outstanding capital stock of the Company will be within the range set forth in the Prospectus under the caption "Capitalization," and except for shares issued as described in the Prospectus or pursuant to employee stock benefit plans described in the Prospectus in the section titled "Management of the Bank -- Executive Compensation," no shares of Common Stock have been issued prior to the Closing Date; at the time of the Conversion, the Shares subscribed for pursuant to the Offerings will have been duly and validly authorized for issuance, and when issued and delivered by the Company pursuant to the Plan against payment of any notification the consideration calculated as set forth in the Plan and the Prospectus, will be duly and validly issued and fully paid and non-assessable; the issuance of the Shares is not subject to preemptive rights and the terms and provisions of the Shares conform in all material respects to the description thereof contained in the Prospectus. To such counsel's Actual Knowledge, upon the issuance of the Shares, good title to the Shares will be transferred from the Company to the purchasers thereof against payment therefor, subject to such claims as may be asserted against the purchasers thereof by third-party claimants.
(vi) 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 the Company, the MHC, and the Bank; and this Agreement is a valid and binding obligation of the Company, the MHC and the Bank, enforceable in accordance with its terms, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium, reorganization, conservatorship, receivership or other similar laws now or hereafter in effect relating to or affecting the enforcement of creditors' rights generally or the rights of creditors of savings institutions and their holding companies, (ii) general equitable principles, (iii) laws relating to the safety and soundness of insured depository institutions, and (iv) applicable law or public policy with respect to the suspension indemnification and/or contribution provisions contained herein, including, without limitation, the provisions of Section 23A and 23B of the qualification Federal Reserve Act, and except that no opinion need to be expressed as to the effect or exemption from qualification availability of equitable remedies or injunctive relief (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(vii) The Conversion Application has been approved by the OTS and the Prospectus has been authorized for use by the OTS and no action has been taken, and to such counsel's Actual Knowledge, none is pending or threatened, to revoke any such authorization or approval.
(viii) The Plan has been duly adopted by the required vote of the directors of the Company, the MHC and the Bank and, based upon the certificate of the inspector of election, by the members of the MHC, the stockholders of the Company and the stockholders of the Bank.
(ix) Subject to the satisfaction of the conditions to the OTS' approval of the Conversion, no further approval, registration, authorization, consent or other order of or notice to any federal or Delaware regulatory agency is required in connection with the execution and delivery of this Agreement, the issuance of the Shares for sale 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) and except as may be required under the rules and regulations of the NASD and/or the Nasdaq National Market (as to which no opinion need be rendered).
(x) The Registration Statement is effective under the 1933 Act and no stop order suspending the effectiveness has been issued under the 1933 Act or proceedings therefor initiated or, to such counsel's Actual Knowledge, threatened by the Commission.
(xi) At the time the Conversion Application, including the Prospectus contained therein, was approved by the OTS, the Conversion Application, including the Prospectus contained therein, complied as to form in any jurisdiction all material respects with the requirements of the Conversion Regulations, the HOLA and all applicable rules and regulations promulgated thereunder (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered).
(xii) At the time that the Registration Statement became effective, (i) the Registration Statement (as amended or supplemented, if so amended or supplemented) (other than the financial statements, the notes thereto and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations, and (ii) the Prospectus (other than the financial statements, the notes thereto and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the 1933 Act, the 1933 Act Regulations, the Conversion Regulations and federal law.
(xiii) The terms and provisions of the Shares of the Company conform, in all material respects, to the description thereof contained in the Registration Statement and Prospectus, and the form of certificate used to evidence the Shares is in due and proper form.
(xiv) There are no legal or governmental proceedings pending or to such counsel's Actual Knowledge, threatened which are required to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein, and to such counsel's Actual Knowledge, all pending legal and governmental proceedings to which the Company, the MHC or the initiation Bank is a party or threatening of which any proceeding for of their property is the subject, which are not described in the Registration Statement and the Prospectus, including ordinary routine litigation incidental to the Company's, the MHC's or the Bank's business, are, considered in the aggregate, not material.
(xv) To such purpose; (iv) counsel's Actual Knowledge, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the occurrence of any event that makes any statement made in Conversion Application, the Registration Statement or the Prospectus untrue or required to be filed as exhibits thereto other than those described or referred to therein or filed as exhibits thereto in any material respect or that requires the making of any changes in Conversion Application, the Registration Statement or Prospectus so that, the Prospectus. The description in the case of Conversion Application, the Registration Statement, it will not contain any untrue statement Statement and the Prospectus of a such documents and exhibits is accurate in all material fact or omit to state any material fact respects and fairly presents the information required to be stated therein shown.
(xvi) To such counsel's Actual Knowledge, the Company, the MHC and the Bank have conducted the Conversion, in all material respects, in accordance with all applicable requirements of the Plan and the HOLA and regulations thereunder, and the Plan complies in all material respects with all applicable Delaware and federal laws, rules, regulations, decisions and orders including, but not limited to, the Conversion Regulations (except where a written waiver has been received); no order has been issued by the OTS, the Commission or necessary any state authority to make suspend the statements therein not misleading and, that in Offerings or the case use of the Prospectus, it will not contain and no action for such purposes has been instituted or, to such counsel's Actual Knowledge, threatened by the OTS or the Commission or any untrue statement of a material fact state authority and, to such counsel's Actual Knowledge, no person has sought to obtain regulatory or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light judicial review of the circumstances under which they were madefinal action of the OTS approving the Plan, not misleading; and (v) the Company’s reasonable determination that a post-effective amendment to Conversion Application or the Registration Statement would be appropriateProspectus.
(cxvii) There shall To such counsel's Actual Knowledge, the Company, the MHC and the Bank have obtained all material federal and Delaware licenses, permits and other governmental authorizations currently required for the conduct of their businesses and all such licenses, permits and other governmental authorizations are in full force and effect, and the Company, the MHC and the Bank are in all material respects complying therewith, except where the failure to have such licenses, permits and other governmental authorizations or the failure to be in compliance therewith would not have been any change, or any development involving a prospective change, in or affecting material adverse affect on the condition (financial or otherwise), earnings, business or properties operations of the Company Bank, the MHC and Subsidiaries the Company, taken as a whole.
(xviii) To such counsel's Actual Knowledge, whether neither the Company, the MHC nor the Bank is in violation of its articles of incorporation, bylaws, or charter, as applicable, or, to such counsel's Actual Knowledge, in default or violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which it is a party or by which it or its property may be bound except for such defaults or violations which would not arising from have a material adverse impact on the financial condition or results of operations of the Company, the MHC nor the Bank on a consolidated basis; to such counsel's Actual Knowledge, the execution and delivery of this Agreement, the occurrence of the obligations herein set forth and the consummation of the transactions contemplated herein will not conflict with or constitute a breach of, or default under, or result in the ordinary course creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the MHC or the Bank pursuant to any material contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC or the Bank is a party or by which any of them may be bound, or to which any of the property or assets of the Company, the MHC or the Bank is subject (other than the establishment of a liquidation account), and such action will not result in any violation of the provisions of the articles of incorporation, bylaws or charter, as applicable, of the Company, the MHC or the Bank, or any applicable federal or Delaware law, act, regulation (except that no opinion need be rendered with respect to the securities or blue sky laws of various jurisdictions or the rules and regulations of the NASD and/or the Nasdaq National Market) or order or court order, writ, injunction or decree.
(xix) The Company's articles of incorporation and bylaws comply in all material respects with the General Corporation Law ("GCL") of the State of Delaware. The Bank's and the MHC's charter and bylaws comply in all material respects with the HOLA and the rules and regulations of the OTS.
(xx) To such counsel's Actual Knowledge, neither the Company, the MHC nor the Bank is in violation of any directive from the OTS or the FDIC to make any material change in the method of conducting its respective business, except as set forth in or contemplated .
(xxi) The information in the Prospectus (after giving effect under the captions "Regulation," "The Conversion," "Restrictions on Acquisition of the Company" and "Description of Capital Stock of Harbor Florida," to any amendment the extent that such information constitutes matters of law, summaries of legal matters, documents or supplement thereto) proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects. The description of the effect of which, is, Conversion process under the caption "The Conversion" in the reasonable judgment Prospectus has been reviewed by such counsel and is in all material respects correct. The discussion of the Agent, so material and adverse as statutes or regulations described or referred to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (after giving effect to any amendment thereof) and in the Prospectus Supplement (after giving effect to any amendment or supplement thereto).
(d) The Agent shall have received are accurate summaries and fairly present the opinion of Company Counsel information required to be delivered pursuant Section 6(o) on or before shown. The information under the date on which caption "The Conversion-Tax Aspects" has been reviewed by such deliveries counsel and constitutes a correct summary of the opinions rendered by Peabody & Brown and KPMG to the Company, the MHC and the Bank wxxx respect to such opinions are required pursuant to Section 6(o)matters.
Appears in 1 contract
Conditions to the Agent’s Obligations. The several obligations of the Agent Agents hereunder shall be and the occurrence of the Closing are subject to the continuing accuracy accuracy, when made and completeness on the Closing Date, of the representations representations, warranties and warranties made by covenants of the Company, the Adviser and the Administrator Peoples’ Parties contained herein, to the due performance by each of the Company People’s Parties of its their several obligations hereunder, and to the continuing satisfaction (satisfaction, or the waiver by the Agent in its sole discretion) Representatives, of each of the following additional terms and conditions:
(a) The Registration Statement shall have become effective not later than [ ] (New York City time) on the date hereof and shall be available for the sale of all Shares to be issued and sold hereunder.
(b) None of the following events shall have occurred and be continuing: (i) receipt by the Company of any request for additional information from the Commission or any other federal or state governmental authority during the period of effectiveness of the Registration Statement, the response to which would require any amendments or supplements to the Registration Statement or the Prospectus relating to or affecting the Shares; (ii) the issuance by the Commission or any other federal or state governmental authority of any no stop order suspending the effectiveness of the Registration Statement or any part thereof or order preventing or suspending the initiation of any proceedings for that purposeOffering, including any notice objecting the Conversion, the transactions required under the Plan to consummate the Conversion and Offering, or the use of any Prospectus, Proxy Statement or Marketing Materials shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission, the OTS or any other federal or state authority; and any request of the Commission or the OTS for inclusion of additional information in the Registration Statement, any Prospectus, any Proxy Statement, any Marketing Materials or otherwise shall have been complied with.
(b) No Agent shall have discovered and disclosed to the Company on or prior to the Closing Date that the Registration Statement or order pursuant any Prospectus or Proxy Statement or any amendment or supplement thereto contains any untrue statement of a fact which, in the opinion of Xxxxxx Xxxxxxxx, counsel for the Agents, is material or omits to Section 8(estate a fact which, in the 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 proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Shares, the Registration Statement, the Prospectuses, the Proxy Statements, the Plan, the Conversion and the transactions contemplated thereby, and all other legal matters relating to this Agreement, the Conversion and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to Xxxxxx Xxxxxxxx, counsel for the Agents, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the 1940 Act having been issued and proceedings therefor initiatedpossible change, in the rating accorded any securities of the People’s Parties by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act;
(ii) neither the Company nor any of its subsidiaries shall have sustained 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 Prospectuses;
(iii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in stockholders’ equity, or in the earnings, business or operations, or in, or affecting the general affairs of, management, of any of the People’s Parties, from that set forth in the Prospectuses (excluding any amendments or supplements thereto); the effect of which, in any such clause as described in (ii) or (iii), is, in your judgment, so material and adverse as to make it impracticable or inadvisable to proceed with the knowledge Offering or to market the Shares on the terms and in the manner contemplated in the Prospectuses.
(e) The Agents shall have received on the Closing Date a certificate, dated the Closing Date and signed by the Chairman of the Board, President and Chief Executive Officer and the Chief Financial Officer of the Company, threatened by to the Commission; effect set forth in Section 4(d)(i) above and to the effect that
(i) the representations and warranties of the People’s Parties contained in this Agreement are true and correct as of the Closing Date;
(ii) each of the People’s Parties has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date;
(iii) receipt by they have carefully examined the Company of any notification Registration Statement, the Prospectuses and the Proxy Statements and, in their opinion (A), with respect to the suspension Registration Statement, as of the qualification or exemption from qualification of any Effective Date, and with respect to the Prospectuses and the Proxy Statements, as of the Shares for sale in any jurisdiction dates they were mailed to stockholders of the Company or depositors of the initiation or threatening of any proceeding for such purpose; (iv) the occurrence of any event that makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or Prospectus so thatBank, in the case as applicable, none of the Registration Statement, it will not contain the Prospectuses and the Proxy Statements included any untrue statement of a material fact or omit omitted to state any a material fact required to be stated therein or necessary to make the statements therein not misleading and, that in (with respect to the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements thereinProspectuses, in the light of the circumstances under which they were made, ) not misleading; , and (vB) since the Company’s reasonable determination that Effective Date no event has occurred which should have been set forth in a post-effective supplement or amendment to the Registration Statement would be appropriateStatement, any Prospectus or the Proxy Statement;
(iv) no stop order has been issued or, to the best of their knowledge, is threatened, by the Commission or any other governmental body;
(v) no order suspending the Offering, the Conversion, the acquisition of all of the shares of the Bank by the Company, the transactions required under the Plan to consummate the Conversion or the effectiveness of the Prospectuses has been issued and, to the best of their knowledge, no proceedings for any such purpose have been initiated or threatened by the OTS, the Commission, or any other federal or state authority;
(vi) to the best of their knowledge, no person has sought to obtain regulatory or judicial review of the action of the OTS in approving the Plan or to enjoin the Conversion; and
(vii) that the officers and directors of the People’s Parties have agreed to abide by the restrictions on the exercise of options and sale of Common Stock set forth in Section [ ]. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(cf) There The Agents shall not have been any changereceived on the Closing Date an opinion and letter of Thacher, or any development involving a prospective changeXxxxxxxx & Xxxx LLP (“Xxxxxxx Xxxxxxxx”), outside counsel for the Company, dated the Closing Date and in form and substance reasonably satisfactory to the Representatives, in the form attached hereto as Exhibit A.
(g) The Agents shall have received on the Closing Date such opinion and letter of Xxxxxx Xxxxxxxx, counsel for the Agents, dated the Closing Date, with respect to the issuance and sale of the Shares, the Registration Statement, the Prospectuses and other related matters as the Representatives may reasonably require, and the People’s Parties shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(h) The Agents shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or affecting the condition Closing Date, as the case may be, in form and substance satisfactory to the Representatives, from KPMG LLP, independent public accountants, (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and (ii) containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial or otherwise)statements and certain financial information contained in the Registration Statement and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than 3 business days before the Closing Date.
(i) The “lock-up” agreements, earningseach substantially in the form of Exhibit B hereto, business or properties between you and certain shareholders, officers and directors of the Company relating to sales and Subsidiaries taken as a wholecertain other dispositions of shares of Common Stock or certain other securities, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (after giving effect delivered to any amendment or supplement thereto) the effect of which, is, in the reasonable judgment of the Agent, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (after giving effect to any amendment thereof) and the Prospectus Supplement (after giving effect to any amendment or supplement thereto).
(d) The Agent shall have received the opinion of Company Counsel required to be delivered pursuant Section 6(o) you on or before the date hereof, shall be in full force and effect on which the Closing Date.
(j) Nasdaq shall have approved the Shares for inclusion, subject only to official notice of issuance.
(k) The Representatives shall have received a letter from RP Financial, LC, dated as of the Closing Date and addressed to the Agents, (i) confirming that said firm is independent of the People’s Parties and is experienced and expert in the area of corporate appraisals, (ii) stating in effect that the Independent Appraisal complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the People’s Parties, as converted, expressed in the Independent Appraisal as most recently updated, remains in effect.
(l) At or prior to the Closing Date, the Representatives shall have received (i) a copy of the Conversion Application and a copy of the letters from the OTS approving the Conversion Application and authorizing the Prospectuses and the Proxy Statements for use, (ii) a copy of the order from the Commission declaring the Registration Statement effective, (iii) a certified copy of the charter of the Company, (iv) a certificate from the FDIC evidencing the Bank’s insurance of accounts and (v) any other documents that the Representatives shall reasonably request.
(m) The Agents shall have received a Blue Sky Memorandum from Xxxxxx Xxxxxxxx relating to the Offering, including the Agents’ participation therein. The Blue Sky Memorandum will relate to the necessity of obtaining or confirming exemptions from or qualifications or registration of the Shares under applicable state securities laws. To the extent the Shares are determined, in your reasonable opinion, to have to be registered or qualified under such deliveries of such opinions laws for offering and sale, they shall have been so registered or qualified at or prior to the Closing Date. 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 required pursuant in form and substance reasonably satisfactory to Section 6(o)counsel for the Agents.
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder shall be and the occurrence of the Closing and the Conversion are subject to the continuing accuracy and completeness of the condition that all representations and warranties made by of the CompanyJefferson Parties herein contained are, at and as of the commencement of the Offerings and (except to the extent such representations and warranties speak as of an earlier date) at and as of the Closing Date, true and correct, the Adviser and condition that the Administrator hereinJefferson Parties shall have performed, in all material respects, all of their obligations hereunder to the due performance by the Company of its obligations hereunder, be performed on or before such dates and to the continuing satisfaction (or waiver by the Agent in its sole discretion) of the following additional further conditions:
(a) At the Closing Date, the Jefferson Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the OTS, the SEC or any other authority government.
(b) The Registration Statement shall have become been declared effective by the SEC, the Conversion Application and shall be available for the sale of all Shares to be issued and sold hereunder.
(b) None of the following events Holding Company Application shall have occurred and be continuing: (i) receipt been approved by the Company of any request for additional information from OTS and no stop order or other action suspending the Commission or any other federal or state governmental authority during the period of effectiveness of the Registration StatementStatement shall have been issued under the 1933 Act or proceedings therefor initiated or, the response to which would require any amendments or supplements to the Registration Statement or knowledge of the Prospectus relating to or affecting the Shares; (ii) the issuance Jefferson Parties, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Conversion shall have been issued, or proceedings therefor initiated or, to the knowledge of the Jefferson Parties, threatened by the OTS, the Commission, or any other governmental body.
(c) At the Closing Date, the Agent shall have received:
(1) The opinion, dated as of the Closing Date, of Muldoon Murphy & Faucette LLP and/or local counsel acceptable to xxx Xxxxx, xx form and xxbstance satisfactory to the Agent and counsel for the Agent to the effect that:
(i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Tennessee, with corporate power and authority to own its properties and to conduct its business currently conducted by the MHC, as described in the Prospectus.
(ii) The Bank is a validly existing federally chartered stock savings association, and upon consummation of the Conversion, the Bank will continue to be a validly existing federally chartered stock savings association, with full power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules and regulations of the FDIC and the OTS (or valid waivers granted it by the FDIC and OTS from such rules and regulations; all of the capital stock of the Bank to be outstanding upon completion of the Conversion will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The activities of the MHC, as described in the Prospectus, are permitted under applicable federal law (or valid waivers granted by the OTS from such law). To such counsel's actual knowledge, each of the Jefferson Parties has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are, to such counsel's actual knowledge, in full force and effect, and to such counsel's actual knowledge, the Jefferson Parties comply therewith in all material respects.
(iv) The Bank is a member in good standing of the Federal Home Loan Bank of Cincinnati. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and to such counsel's knowledge, no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or threatened.
(v) Upon consummation of the Conversion, and the issuance of Foundation Shares to the Foundation immediately upon completion thereof subject to compliance with all conditions imposed upon the Foundation and the contribution thereof by the OTS under the terms of the OTS' approval order, in an amount as described in the Prospectus, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption "Capitalization," and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date (except for the shares issued upon incorporation of the Holding Company); (b) the shares to be subscribed for in the Offerings and the Foundation Shares will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be duly and validly issued and fully paid and nonassessable; and (c) the issuance of the Shares and the Foundation Shares is not subject to preemptive rights under the charter or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan. To such counsel's knowledge, upon issuance of the Shares and the Foundation Shares, good title to the Shares and the Foundation Shares will be transferred from the Holding Company to the purchasers thereof against payment therefor, subject to such claims as may be asserted against the purchasers thereof by third-party claimants.
(vi) The Jefferson Parties have full corporate power and authority to enter into this Agreement and to consummate the transactions contemplated hereby and by the Plan, including the establishment of the Foundation and the contribution thereto of the Foundation Shares. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, including the establishment of the Foundation and the contribution thereto of the Foundation Shares, have been duly authorized by all necessary corporate action on the part of the Jefferson Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Jefferson Parties, enforceable in accordance with its terms, except as rights to indemnity and contribution thereunder may be limited under applicable law, and subject to the qualification that (i) enforcement thereof may be limited by bankruptcy, insolvency, moratorium, reorganization or other laws (including the laws of fraudulent conveyance) or judicial decisions affecting the enforceability of creditors' rights generally, the rights of creditors of savings banks or financial institutions, the accounts of which are insured by the FDIC, and (ii) enforcement thereof is subject to general equity principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) and to the effect of certain laws and judicial decisions upon the availability of injunctive relief and enforceability of equitable remedies, including the remedies of specific performance and self-help.
(vii) Pursuant to the Conversion Regulations, the Plan and the establishment and funding of the Foundation has been duly approved by the required vote of the MHC's members and Bank stockholders and duly adopted by the required vote of the directors of the Holding Company, the MHC and the Bank.
(viii) The Plan complies in all material respects with the Conversion Regulations; the Conversion Application and the Holding Company Application, including the establishment of the Foundation and the contribution thereto of the Foundation Shares, have been approved by the OTS, and no action has been taken and, to such counsel's knowledge, none is pending or threatened by the OTS, SEC or any other governmental authority to revoke such approval or to suspend the Offerings or the use of the Prospectus, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state governmental authority regulatory agency, public board or body is required in connection with the execution and delivery of any this Agreement, the offer, sale and issuance of the Shares and the Foundation Shares 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. To the knowledge of such counsel, no person has sought to obtain regulatory or judicial review of the final action of the OTS approving the Plan, the Conversion Application, the Holding Company Application or the Prospectus.
(ix) The Registration Statement has become effective under the 1933 Act and to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued, or the initiation of any proceedings for that purposepurpose have been instituted or threatened, including any notice objecting to the use of the Registration Statement or order pursuant to Section 8(e) of the 1940 Act having been issued and proceedings therefor initiated, or to the knowledge of the Company, threatened by the Commission; .
(iiix) receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any The terms and provisions of the Shares for sale in any jurisdiction or and the initiation or threatening of any proceeding for such purpose; (iv) Foundation Shares conform to the occurrence of any event that makes any statement made description thereof contained in the Registration Statement and the Prospectus, and the forms of certificates proposed to be used to evidence the Shares are in due and proper form in compliance with applicable laws.
(xi) At the time the Conversion Application, including the Prospectus and Members' Proxy Statement and Stockholders' Proxy Statement contained therein, was approved by the OTS, the Conversion Application, including the Prospectus and Members' Proxy Statement and Stockholders' Proxy Statement contained therein, as amended or supplemented, complied as to form in all material respects with the requirements of the Conversion Regulations (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion).
(xii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the rules and regulations promulgated thereunder.
(xiii) To such counsel's knowledge, there are no legal or governmental proceedings pending, or threatened (i) asserting the invalidity of this Agreement, (ii) seeking to prevent the Conversion or the Prospectus untrue in any material respect offer, sale or that requires issuance of the making of any changes Shares, or (iii) which are required to be disclosed in the Registration Statement or Prospectus so thatand Prospectus, other than those disclosed therein.
(xiv) The information in the case Prospectus under the captions "Questions and Answers About the Stock Offering," "Summary -- The Conversion," "Summary -- The Offering," "Risk Factors -- Various factors could make takeover attempts more difficult to achieve," "Risk Factors -- There is a decrease in the rights of shareholders under our Tennessee charter and bylaws," "Risk Factors -- We operate in a highly regulated environment and we may be adversely affected by changes in laws and regulations," "Use of Proceeds," "Our Dividend Policy," "Our Management," "Regulation and Supervision," "Federal and State Taxation," "Comparison of Shareholder Rights," "Restrictions on Acquisition of Jefferson Bancshares and Jefferson Federal," "Description of Jefferson Bancshares Capital Stock," and "The Conversion," to the Registration Statementextent that such information constitutes matters of law, it will not contain any untrue statement summaries of a legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material fact respects. The descriptions in the Prospectus of statutes or omit to state any material fact regulations are accurate summaries and fairly present the information required to be stated therein or necessary to make the statements therein not misleading and, that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (v) the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriateshown.
(c) There shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (after giving effect to any amendment or supplement thereto) the effect of which, is, in the reasonable judgment of the Agent, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (after giving effect to any amendment thereof) and the Prospectus Supplement (after giving effect to any amendment or supplement thereto).
(d) The Agent shall have received the opinion of Company Counsel required to be delivered pursuant Section 6(o) on or before the date on which such deliveries of such opinions are required pursuant to Section 6(o).
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder shall be subject to the continuing accuracy and completeness of the representations and warranties made by the Company, the Adviser and the Administrator herein, to the due performance by the Company of its obligations hereunder, and to the continuing satisfaction (or waiver by the Agent in its sole discretion) of the following additional conditions:
(a) The Registration Statement shall have become effective and shall be available for the sale of all Shares to be issued and sold hereunder.
(b) None of the following events shall have occurred and be continuing: (i) receipt by the Company of any request for additional information from the Commission or any other federal or state governmental authority during the period of effectiveness of the Registration Statement, the response to which would require any amendments or supplements to the Registration Statement or the Prospectus relating to or affecting the Shares; (ii) the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, including any notice objecting to the use of the Registration Statement or order pursuant to Section 8(e) of the 1940 Act having been issued and proceedings therefor initiated, or to the knowledge of the Company, threatened by the Commission; (iii) receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (iv) the occurrence of any event that makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or Prospectus so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (v) the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate.
(c) There shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and Subsidiaries its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (after giving effect to any amendment or supplement thereto) the effect of which, is, in the reasonable judgment of the Agent, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (after giving effect to any amendment thereof) and the Prospectus Supplement (after giving effect to any amendment or supplement thereto).
(d) The Agent shall have received the opinion opinions of Company Counsel and Maryland Counsel required to be delivered pursuant Section 6(o) on or before the date on which such deliveries of such opinions are required pursuant to Section 6(o).
(e) The Agent shall have received the Comfort Letter required to be delivered pursuant Section 6(p) on or before the date on which such delivery of such letter is required pursuant to Section 6(p).
(f) The Agent shall have received the certificates required to be delivered pursuant to Section 6(n) and Section 6(q) on or before the date on which delivery of such certificate is required pursuant to Section 6(n) and Section 6(q), respectively.
(g) The Agent shall have received the opinion of Agent Counsel required to be delivered pursuant Section 6(r) on or before the date on which such delivery of such opinion is required pursuant to Section 6(r).
(h) Trading in the Common Stock shall not have been suspended on Nasdaq.
(i) [Reserved.]
(j) FINRA shall have confirmed that it has no objection with respect to the fairness and reasonableness of the placement terms and arrangements set forth herein.
(k) If any condition specified in this Section 7 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Agent by notice to the Company (which termination shall be effective as of the time of the receipt by the Company of such notice), and such termination shall be without liability of any party to any other party except as provided in Section 5 hereof and except that, in the case of any termination of this Agreement, Sections 8, 10, 13, 15 and 16 hereof shall survive such termination and remain in full force and effect.
Appears in 1 contract
Samples: Equity Distribution Agreement (Gladstone Capital Corp)
Conditions to the Agent’s Obligations. The Agent's obligations of the Agent hereunder shall be subject hereunder, as to the continuing accuracy and completeness of Shares to be delivered at the Closing Date, are subject, to the extent not waived by the Agent, to the condition that all representations and warranties made by of the Company, the Adviser MHC and the Administrator hereinBank herein are, at and as of the commencement of the Offerings and at and as of the Closing Date, true and correct in all material respects, the condition that the Company, the MHC and the Bank shall have performed all of their obligations hereunder to the due performance by the Company of its obligations hereunderbe performed on or before such dates, and to the continuing satisfaction (or waiver by the Agent in its sole discretion) of the following additional further conditions:
(a) At the Closing Date, the Company, the MHC and the Bank shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations, and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the OTS.
(b) The Registration Statement shall have become been declared effective and shall be available for the sale of all Shares to be issued and sold hereunder.
(b) None of the following events shall have occurred and be continuing: (i) receipt by the Company of any request for additional information from the Commission or any other federal or state governmental authority during the period of effectiveness of the Registration StatementCommission, the response to which would require any amendments or supplements to the Registration Statement or the Prospectus relating to or affecting the Shares; (ii) the issuance Conversion Application approved by the Commission OTS, not later than 5:30 p.m. on the date of this Agreement, or any other federal or state governmental authority of any with the Agent's consent at a later time and date; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or threatened by the Commission, or any state authority and no order or other action suspending the authorization of the Prospectus or the initiation consummation of any the Conversion shall have been issued or proceedings for that purposetherefore initiated or, including any notice objecting to the use of Company's, the Registration Statement MHC's or order pursuant to Section 8(e) of the 1940 Act having been issued and proceedings therefor initiated, or to the knowledge of the CompanyBank's knowledge, threatened by the Commission; , the OTS or any state authority.
(c) At the Closing Date, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Xxxx Xxxxxx, special counsel for the Company, the MHC and the Bank, in form and substance to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation under the laws of the State of Delaware and has 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. All of the outstanding capital stock of the Company is duly authorized and validly issued, fully paid and non-assessable.
(ii) The Bank has been duly organized and is a validly existing federal savings association in capital stock form of organization, duly authorized to conduct its business and own its property as described in the Registration Statement and Prospectus. All of the outstanding capital stock of the Bank is duly authorized and validly issued, fully paid and non-assessable and owned by the Company, free and clear of any liens, encumbrances, claims or other restrictions.
(iii) receipt The MHC has been duly organized and is a validly existing federal mutual holding company duly authorized to conduct its business and own its property as described in the Registration Statement and Prospectus.
(iv) The Bank is a member of the FHLB-Dallas. The deposit accounts of the Bank are insured by the FDIC up to the maximum amount allowed under law and no proceedings for the termination or revocation of such insurance are pending or, to such counsel's Actual Knowledge, threatened; the description of the liquidation account as set forth in the Prospectus under the caption "The Conversion and Reorganization-Liquidation Rights" to the extent that such information constitutes matters of law and legal conclusions has been reviewed by such counsel and is accurate in all material respects.
(v) Upon consummation of the Conversion, the authorized, issued and outstanding capital stock of the Company will be within the range set forth in the Prospectus under the caption "Capitalization," and except for shares issued as described in the Prospectus or pursuant to employee stock benefit plans described in the Prospectus in the section titled "Management of the Bank -- Executive Compensation," no shares of Common Stock have been issued prior to the Closing Date; at the time of the Conversion, the Shares subscribed for pursuant to the Offerings will have been duly and validly authorized for issuance, and when issued and delivered by the Company pursuant to the Plan against payment of any notification the consideration calculated as set forth in the Plan and the Prospectus, will be duly and validly issued and fully paid and non-assessable; the issuance of the Shares is not subject to preemptive rights and the terms and provisions of the Shares conform in all material respects to the description thereof contained in the Prospectus. To such counsel's Actual Knowledge, upon the issuance of the Shares, good title to the Shares will be transferred from the Company to the purchasers thereof against payment therefor, subject to such claims as may be asserted against the purchasers thereof by third-party claimants.
(vi) 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 the Company, the MHC, and the Bank; and this Agreement is a valid and binding obligation of the Company, the MHC and the Bank, enforceable in accordance with its terms, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium, reorganization, conservatorship, receivership or other similar laws now or hereafter in effect relating to or affecting the enforcement of creditors' rights generally or the rights of creditors of savings institutions and their holding companies, (ii) general equitable principles, (iii) laws relating to the safety and soundness of insured depository institutions, and (iv) applicable law or public policy with respect to the suspension indemnification and/or contribution provisions contained herein, including, without limitation, the provisions of Section 23A and 23B of the qualification Federal Reserve Act, and except that no opinion need to be expressed as to the effect or exemption from qualification availability of equitable remedies or injunctive relief (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(vii) The Conversion Application has been approved by the OTS and the Prospectus has been authorized for use by the OTS and no action has been taken, and to such counsel's Actual Knowledge, none is pending or threatened, to revoke any such authorization or approval.
(viii) The Plan has been duly adopted by the required vote of the directors of the Company, the MHC and the Bank and, based upon the certificate of the inspector of election, by the members of the MHC, the stockholders of the Company and the stockholders of the Bank.
(ix) Subject to the satisfaction of the conditions to the OTS' approval of the Conversion, no further approval, registration, authorization, consent or other order of or notice to any federal or Delaware regulatory agency is required in connection with the execution and delivery of this Agreement, the issuance of the Shares for sale 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) and except as may be required under the rules and regulations of the NASD and/or the Nasdaq National Market (as to which no opinion need be rendered).
(x) The Registration Statement is effective under the 1933 Act and no stop order suspending the effectiveness has been issued under the 1933 Act or proceedings therefor initiated or, to such counsel's Actual Knowledge, threatened by the Commission.
(xi) At the time the Conversion Application, including the Prospectus contained therein, was approved by the OTS, the Conversion Application, including the Prospectus contained therein, complied as to form in any jurisdiction all material respects with the requirements of the Conversion Regulations, the HOLA and all applicable rules and regulations promulgated thereunder (other than the financial statements, the notes thereto, and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered).
(xii) At the time that the Registration Statement became effective, (i) the Registration Statement (as amended or supplemented, if so amended or supplemented) (other than the financial statements, the notes thereto and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations, and (ii) the Prospectus (other than the financial statements, the notes thereto and other tabular, financial, statistical and appraisal data included therein, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the 1933 Act, the 1933 Act Regulations, the Conversion Regulations and federal law.
(xiii) The terms and provisions of the Shares of the Company conform, in all material respects, to the description thereof contained in the Registration Statement and Prospectus, and the form of certificate used to evidence the Shares is in due and proper form.
(xiv) There are no legal or governmental proceedings pending or to such counsel's Actual Knowledge, threatened which are required to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein, and to such counsel's Actual Knowledge, all pending legal and governmental proceedings to which the Company, the MHC or the initiation Bank is a party or threatening of which any proceeding for of their property is the subject, which are not described in the Registration Statement and the Prospectus, including ordinary routine litigation incidental to the Company's, the MHC's or the Bank's business, are, considered in the aggregate, not material.
(xv) To such purpose; (iv) counsel's Actual Knowledge, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the occurrence of any event that makes any statement made in Conversion Application, the Registration Statement or the Prospectus untrue or required to be filed as exhibits thereto other than those described or referred to therein or filed as exhibits thereto in any material respect or that requires the making of any changes in Conversion Application, the Registration Statement or Prospectus so that, the Prospectus. The description in the case of Conversion Application, the Registration Statement, it will not contain any untrue statement Statement and the Prospectus of a such documents and exhibits is accurate in all material fact or omit to state any material fact respects and fairly presents the information required to be stated therein shown.
(xvi) To such counsel's Actual Knowledge, the Company, the MHC and the Bank have conducted the Conversion, in all material respects, in accordance with all applicable requirements of the Plan and the HOLA and regulations thereunder, and the Plan complies in all material respects with all applicable Delaware and federal laws, rules, regulations, decisions and orders including, but not limited to, the Conversion Regulations (except where a written waiver has been received); no order has been issued by the OTS, the Commission or necessary any state authority to make suspend the statements therein not misleading and, that in Offerings or the case use of the Prospectus, it will not contain and no action for such purposes has been instituted or, to such counsel's Actual Knowledge, threatened by the OTS or the Commission or any untrue statement of a material fact state authority and, to such counsel's Actual Knowledge, no person has sought to obtain regulatory or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light judicial review of the circumstances under which they were madefinal action of the OTS approving the Plan, not misleading; and (v) the Company’s reasonable determination that a post-effective amendment to Conversion Application or the Registration Statement would be appropriateProspectus.
(cxvii) There shall To such counsel's Actual Knowledge, the Company, the MHC and the Bank have obtained all material federal and Delaware licenses, permits and other governmental authorizations currently required for the conduct of their businesses and all such licenses, permits and other governmental authorizations are in full force and effect, and the Company, the MHC and the Bank are in all material respects complying therewith, except where the failure to have such licenses, permits and other governmental authorizations or the failure to be in compliance therewith would not have been any change, or any development involving a prospective change, in or affecting material adverse affect on the condition (financial or otherwise), earnings, business or properties operations of the Company Bank, the MHC and Subsidiaries the Company, taken as a whole.
(xviii) To such counsel's Actual Knowledge, whether neither the Company, the MHC nor the Bank is in violation of its articles of incorporation, bylaws, or charter, as applicable, or, to such counsel's Actual Knowledge, in default or violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which it is a party or by which it or its property may be bound except for such defaults or violations which would not arising from have a material adverse impact on the financial condition or results of operations of the Company, the MHC nor the Bank on a consolidated basis; to such counsel's Actual Knowledge, the execution and delivery of this Agreement, the occurrence of the obligations herein set forth and the consummation of the transactions contemplated herein will not conflict with or constitute a breach of, or default under, or result in the ordinary course creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the MHC or the Bank pursuant to any material contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company, the MHC or the Bank is a party or by which any of them may be bound, or to which any of the property or assets of the Company, the MHC or the Bank is subject (other than the establishment of a liquidation account), and such action will not result in any violation of the provisions of the articles of incorporation, bylaws or charter, as applicable, of the Company, the MHC or the Bank, or any applicable federal or Delaware law, act, regulation (except that no opinion need be rendered with respect to the securities or blue sky laws of various jurisdictions or the rules and regulations of the NASD and/or the Nasdaq National Market) or order or court order, writ, injunction or decree.
(xix) The Company's articles of incorporation and bylaws comply in all material respects with the General Corporation Law ("GCL") of the State of Delaware. The Bank's and the MHC's charter and bylaws comply in all material respects with the HOLA and the rules and regulations of the OTS.
(xx) To such counsel's Actual Knowledge, neither the Company, the MHC nor the Bank is in violation of any directive from the OTS or the FDIC to make any material change in the method of conducting its respective business, except as set forth in or contemplated .
(xxi) The information in the Prospectus (after giving effect under the captions "Regulation," "The Conversion," "Restrictions on Acquisition of the Company" and "Description of Capital Stock of Pocahontas Bancorp," to any amendment the extent that such information constitutes matters of law, summaries of legal matters, documents or supplement thereto) proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects. The description of the effect of which, is, Conversion process under the caption "The Conversion" in the reasonable judgment Prospectus has been reviewed by such counsel and is in all material respects correct. The discussion of the Agent, so material and adverse as statutes or regulations described or referred to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (after giving effect to any amendment thereof) and in the Prospectus Supplement (after giving effect to any amendment or supplement thereto).
(d) The Agent shall have received are accurate summaries and fairly present the opinion of Company Counsel information required to be delivered pursuant Section 6(o) shown. The information under the caption "The Conversion-Tax Aspects" has been reviewed by such counsel and constitutes a correct summary of the opinions rendered by Xxxx Xxxxxx and Deloitte to the Company, the MHC and the Bank with respect to such matters. In giving such opinion, such counsel may rely as to all matters of fact on certificates of officers or before directors of the date on which such deliveries Company, the MHC and the Bank and certificates of such opinions are required pursuant public officials. Such counsel's opinion shall be limited to Section 6(o).matters governed by federal laws and by the State of Delaware General Corporation Law. With respect to matters involving the application of
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder shall be and the occurrence of the Closing and the Reorganization are subject to the continuing accuracy and completeness of the condition that all representations and warranties made by and other statements of the CompanyPrimary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct, the Adviser and condition that the Administrator herein, Primary Parties shall have performed all of their obligations hereunder to the due performance by the Company of its obligations hereunder, be performed on or before such dates and to the continuing satisfaction (or waiver by the Agent in its sole discretion) of the following additional further conditions:
(a) The Registration Statement shall have become been declared effective by the Commission and the prospectus and proxy statement contained in the MHC Notice and Application shall be available have been approved by the OTS for mailing prior to the sale commencement of all Shares the Offering, the Holding Company Application shall have been approved, and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or, to be any of the Primary Parties' best knowledge, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Reorganization shall have been issued and sold hereunderor proceedings therefore initiated or, to any of the Primary Parties' best knowledge, threatened by the OTS, the Commission, or any other governmental body.
(b) None At the Closing Date, the Agent shall have received:
(1) The favorable opinion, dated as of the following events shall have occurred and be continuing: Closing Date, of Muldoon Murphy Faucette & Aguggia LLP, and/or local counsel acceptable xx xxx Xxxxx xx xxxx xnd xxxxxxxce satisfactory to counsel for the Agent to the effect that:
(i) receipt The Holding Company is a corporation duly organized and validly existing under the laws of the United States of America, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which the failure to qualify would have a material adverse effect on the financial condition, earnings, or properties of the Primary Parties.
(ii) The Bank is a duly organized and validly existing federally chartered mutual savings association with full power and authority to own its properties and to conduct its business as described in the Prospectus and to enter into this Agreement; the activities of the Bank as described in the Prospectus are permitted by the rules, regulations and practices of the OTS; the issuance and sale of the capital stock of the Bank to the Holding Company in the Reorganization has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable, and, to the best of such counsel's knowledge will be owned of record and beneficially by the Holding Company, free and clear of any request mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The Bank is a member of the FHLB of Boston; the Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and to such counsel's knowledge no proceedings for additional information from the Commission termination or revocation of such insurance are pending or threatened.
(iv) Upon consummation of the Reorganization, the MHC will have been duly organized and will be validly existing as a federally chartered mutual holding company, duly authorized to conduct its business and own its properties as described in the Prospectus.
(v) Upon consummation of the Reorganization, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption "Capitalization," and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date (except for the shares issued upon incorporation of the Holding Company); (b) the shares of Common Stock of the Holding Company issued to the MHC will have been duly and validly authorized for issuance and will be fully paid and nonassessable; and (c) the shares of Common Stock of the Holding Company to be sold in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; the issuance of the shares of Common Stock is not subject to preemptive rights under the charter, or bylaws of the Holding Company, or arising or outstanding by operation of law or, to the best knowledge of such counsel, under any contract, indenture, agreement, instrument or other document, except for the subscription rights under the Plan.
(vi) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 10 and 11 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors' rights generally, or the rights of creditors of savings institutions insured by the FDIC (including the laws relating to the rights of the contracting parties to equitable remedies).
(vii) The Plan has been adopted by the board of directors of the Bank and approved by the members of the Bank, in the manner required by the Conversion Regulations and the Bank's charter and bylaws.
(viii) The OTS Applications have been approved by the OTS and the Prospectus and the Proxy Statement have been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such OTS approvals and clearance under applicable securities laws no further approval, registration, authorization, consent or other order of any federal or state governmental authority during regulatory agency, public board or body is required in connection with the period execution and delivery of effectiveness this Agreement, the offer, sale and issuance of the Registration StatementShares and the consummation of the Reorganization.
(ix) The purchase by the Holding Company of all of the issued and outstanding capital stock of the Bank has been authorized by the OTS, the response to which would require any amendments or supplements and to the best of such counsel's knowledge, no action has been taken, or, is pending or threatened, to revoke any such authorization or approval.
(x) The Registration Statement or has become effective under the Prospectus relating 1933 Act, and to or affecting the Shares; (ii) the issuance by the Commission or any other federal or state governmental authority best of any such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement or the initiation of any has been issued, and, no proceedings for that purposepurpose have been instituted or threatened.
(xi) The material tax consequences of the Reorganization are set forth in the Prospectus under the caption "The Reorganization and Stock Offering - Material Income Tax Consequences." The information in the Prospectus under the caption "The Reorganization and Stock Offering - Material Income Tax Consequences" has been reviewed by such counsel and fairly describes such opinions rendered by such counsel and Snyder & Haller, including any notice objecting P.C. to the use of the Registration Statement or order pursuant to Section 8(e) of the 1940 Act having been issued and proceedings therefor initiated, or to the knowledge of the Company, threatened by the Commission; (iii) receipt by the Company of any notification Primary Parties with respect to the suspension such mattxxx.
(xii) The terms and provisions of the qualification or exemption from qualification shares of any of Common Stock conform to the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (iv) the occurrence of any event that makes any statement made description thereof contained in the Registration Statement and the Prospectus, and the forms of certificates proposed to be used to evidence the shares of Common Stock comply with the regulations of the OTS.
(xiii) At the time the MHC Notice and Application was approved, the MHC Notice and Application (as amended or supplemented) including the Prospectus untrue contained therein, complied as to form in any all material respect respects with the requirements of the Conversion Regulations, except as modified or waived in writing by the OTS (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation as to which counsel need express no opinion). To the best of such counsel's knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS approving the OTS Applications.
(xiv) At the time that requires the making of any changes in the Registration Statement or Prospectus so that, in the case of became effective the Registration Statement, it will not contain any untrue statement of a including the Prospectus contained therein (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation as to which counsel need express no opinion), complied as to form in all material fact or omit to state any material fact required to be stated therein or necessary to make respects with the statements therein not misleading and, that in the case requirements of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make 1933 Act and the statements therein, in the light of the circumstances under which they were made, not misleading; rules and (v) the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriateregulations promulgated thereunder.
(cxv) There shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated The information in the Prospectus under the captions "Regulation," "Federal and State Taxation," "Restrictions on Acquisition of Naugatuck Valley Financial and Naugatuck Valley Savings and Loan", "Description of Naugatuck Valley Financial Capital Stock," and "The Reorganization and Stock Offering" to the extent that it constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects (after giving effect to any amendment or supplement thereto) the effect of which, is, in the reasonable judgment of the Agent, so material and adverse except as to make it impractical or inadvisable the financial statements and other financial data included therein as to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (after giving effect to any amendment thereof) and the Prospectus Supplement (after giving effect to any amendment or supplement theretowhich such counsel need express no opinion).
(d) The Agent shall have received the opinion of Company Counsel required to be delivered pursuant Section 6(o) on or before the date on which such deliveries of such opinions are required pursuant to Section 6(o).
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of Agent's obligation to sell the Agent Units and close hereunder shall be subject to the continuing accuracy and completeness of the condition that all representations and warranties made by and other statements herein of the CompanyCompany are true and correct, the Adviser and the Administrator herein, to the due performance by condition that the Company shall have performed all of its obligations hereunder theretofore to be performed prior to the sale of the Units and closing hereunder, and to the continuing satisfaction (or waiver by the Agent in its sole discretion) of the following additional conditions:
(a) The Registration Statement No stop order suspending the offer and/or sale of the Securities shall have become effective been issued and no proceedings therefor shall be available pending or threatened, by the Commission or any state securities division. Any requests for additional information on the sale part of all Shares any state securities division to be issued included in the Memorandum shall have been complied with to the Agent's reasonable satisfaction, and sold hereunderno amendment or supplement to the Memorandum shall be made to which the Agent, or the Agent's counsel, shall have reasonably objected after having received reasonable notice.
(b) None There shall not have occurred any adverse change, or any development involving a prospective adverse change in, or affecting the business or properties of, the Company which, in the Agent's reasonable opinion, would materially adversely affect, the offer and sale of the following events Units on the Company's behalf.
(c) The Agent shall not have occurred and be continuing: (i) receipt been advised by the Company of any request for additional information from and shall not have advised the Commission Company that the Memorandum, or any other federal amendment thereof or state governmental authority during the period of effectiveness of the Registration Statementsupplement thereto, the response to which would require any amendments or supplements to the Registration Statement or the Prospectus relating to or affecting the Shares; (ii) the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, including any notice objecting to the use of the Registration Statement or order pursuant to Section 8(e) of the 1940 Act having been issued and proceedings therefor initiated, or to the knowledge of the Company, threatened by the Commission; (iii) receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (iv) the occurrence of any event that makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or Prospectus so that, in the case of the Registration Statement, it will not contain contained any untrue statement of a material fact which, in the opinion of its legal counsel, is material, or omit that the Memorandum omits to state any a fact which, in the opinion of such counsel, is material fact and is required to be stated therein or is necessary to make the statements therein contained therein, in light of the circumstances under which they were made, not misleading misleading; provided, however, that this paragraph (c) shall not apply to any statements or omissions which are based upon and conform to written information furnished to the Company by the Agent (or on behalf of the Agent and specifically at the request of the Agent) specifically for use in the Memorandum or any amendment thereof or supplement thereto.
(d) Xxxxxx & Xxxxxx, P.A., counsel for the Company, shall have furnished to the Agent as of each Closing Date (as defined herein) such opinion or opinions in form and substance satisfactory to the Agent and the Agent's counsel, to the effect that:
(i) The Company has been duly incorporated and is validly existing in good standing under the laws of the State of Utah (assuming that such laws are substantially similar to the laws of the State of Minnesota); has the requisite corporate power to own, lease and operate its properties and conduct its business as described in the Memorandum; and is duly qualified to do business as a foreign corporation in good standing in the States of Minnesota and Wisconsin.
(ii) The number of authorized, and to the best of such counsel's knowledge, the number of issued and outstanding shares of capital stock of the Company are as set forth in the Memorandum (except as for the addition of Securities issued pursuant to this Offering), and all such capital stock has been duly authorized and is validly issued, fully paid and I nonassessable. Upon delivery of, and payment for, the Securities pursuant to this Agreement and the Subscription Agreements, the subscribers thereof will acquire the Securities free and clear of all liens, encumbrances or claims. To the best knowledge of such counsel, no preemptive rights, contractual or otherwise, of security holders of the Company exist with respect to the issuance or sale of the Securities by the Company. The Securities conform as to matters of law in all material respects to the description of them made in the Memorandum, and such description accurately sets forth the material legal provisions thereof required to be set forth in the Memorandum.
(iii) The Securities have been duly authorized and, that upon delivery to the subscribers thereof against payment therefor, pursuant to this Agreement and the Subscription Agreements, will be validly issued, fully paid, and nonassessable.
(iv) The certificates evidencing the Securities comply as to form with the applicable provisions of the laws of the State of Utah.
(v) This Agreement and the Agent's Warrants have been duly authorized, executed, and delivered by the Company and are the valid and binding obligations of the Company, enforceable in accordance with their terms, except as enforceability may be limited by the Enforceability Limitations. A sufficient number of shares of Common Stock of the Company have been reserved for issuance by the Company upon exercise of the Agent's Warrants.
(vi) To the best of such counsel's knowledge, there are no material legal or governmental proceedings required by the 1933 Act and the Rules and Regulations to be described or referred to in the case Memorandum that are not described or referred to therein.
(vii) To the best of such counsel's knowledge there are no legal, governmental or administrative proceedings pending or threatened against the Company that relate to patents, trademarks or other intellectual property, except for pending or proposed United States and foreign patent applications.
(viii) No authorization, approval or consent of any governmental authority or- agency is necessary in connection with the issuance and sale of the ProspectusSecurities as contemplated under this Agreement, except such as may be required under the Act or under state or other securities laws in connection with the sale of the Securities.
(ix) Assuming that the Securities are offered and sold as contemplated by the Memorandum and this Agreement (including all representations and warranties contained therein), the offer, sale, issuance and delivery of the Securities are exempt from the- registration and prospectus delivery requirements of the Act.
(x) To the best of such counsel's knowledge, the execution, delivery, and performance of the Agency Agreement and any issuance and delivery of Securities is not in material contravention of any of the provisions of any note, indenture, mortgage, deed of trust, joint venture agreement, agreement or other instrument known to such counsel to which the Company is a party or by which it will is bound and which is material to the business of the Company as a whole, or of any material law, rule or regulation of the United States, or the State of Minnesota, or any judgment, order or decree known to such counsel and applicable to the Company of any court having jurisdiction over the Company or any of its properties. In expressing the foregoing opinion, as to matters of fact relevant to conclusions of law, counsel may rely, to the extent that they deem proper, upon certificates of public officials and of the officers of the Company, provided that copies of such officers' certificates are attached to the opinion.
(e) The Agent and purchasers shall have received from the Company a certificate, dated as of each Closing Date, of the principal executive officer and the principal financial or accounting officer of the Company to the effect that:
(i) The representations and warranties of the Company in this Agreement are true and correct as if made on each Closing Date;
(ii) the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at, or prior to, such date;
(iii) as of each Closing Date, the Memorandum and any supplement thereto, contained all statements and information required to be included therein, the Memorandum did not contain include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under in which they were made, not misleading, and, since the date of the Memorandum there has occurred no event required to be set forth in an amendment to the Memorandum which has not been so set forth; provided, however, that such certificate does not require any representation concerning statements in, or omissions from, the Memorandum, or any amendment thereof or supplement thereto, which are based upon and conform to written information furnished to the Company by the Agent specifically for use in the preparation of the Memorandum or any such amendment or supplement;
(iv) except as is otherwise expressly stated in the Memorandum, there are no material actions, suits or proceedings pending before any court or governmental agency, authority or body or, to the best of their knowledge, threatened to which the Company is a party or of which the business or property of the Company is subject;
(v) subsequent to the date as of which information is given in the Memorandum, and except as contemplated or referred to in the Memorandum, the Company has not incurred any direct, or to the best of their knowledge, contingent liabilities or obligations material to the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate.
(c) There shall not have been any change, or entered into any development involving a prospective changematerial transactions, in except liabilities, obligations or affecting the condition (financial or otherwise), earnings, business or properties of the Company and Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of businessbusiness or relating to the offering of Units pursuant to the Memorandum, except as set forth in or contemplated and there has not been any change in the Prospectus (after giving effect to capital stock, short-term or long-term debt of the Company, or any amendment or supplement thereto) the effect of which, is, material adverse change in the reasonable judgment financial position, net worth or results of operations of the AgentCompany;
(vi) subsequent to the dates as of which information is given in the Memorandum, so the Company has not sustained any material and adverse as to make it impractical loss of, or inadvisable to proceed with the offering damage to, its properties, whether or delivery of the Shares as contemplated by the Registration Statement (after giving effect to any amendment thereof) and the Prospectus Supplement (after giving effect to any amendment or supplement thereto)not insured.
(df) The Agent and the purchasers shall have received received, dated as of each Closing Date, from the opinion Secretary of the Company Counsel required a certificate of incumbency certifying the names, titles and signatures of the officers authorized to execute the resolutions of the Board of Directors of the Company authorizing and approving the execution, delivery and performance of this Agreement, a copy of such resolutions to be delivered pursuant Section 6(oattached to such certificate, certifying such resolutions and certifying that the Articles of Incorporation of the Company and the Bylaws of the Company in the form attached thereto have been validly adopted and have not been amended or modified.
(g) on Prior to or before simultaneously with the date on which such deliveries First Closing, the Additional Investors (as defined in the Memorandum) shall have purchased at a price to equal to $1.20 per unit at least 583,333 units, each consisting of such opinions are required pursuant two shares of the Company's Series A Cumulative Convertible Preferred Stock (convertible into two shares of the Company's Common Stock) and one redeemable Warrant to Section 6(o)purchase one share of the Company's Common Stock.
Appears in 1 contract
Samples: Agency Agreement (U Ship Inc)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder shall be subject to the continuing accuracy and completeness of the representations and warranties made by the Company, the Adviser and the Administrator herein, to the due performance by the Company of its obligations hereunder, and to the continuing satisfaction (or waiver by the Agent in its sole discretion) of the following additional conditions:
(a) The Registration Statement shall have become effective and shall be available for the sale of all Shares Notes to be issued and sold hereunder.
(b) None of the following events shall have occurred and be continuing: (i) receipt by the Company of any request for additional information from the Commission or any other federal or state governmental authority during the period of effectiveness of the Registration Statement, the response to which would require any amendments or supplements to the Registration Statement or the Prospectus relating to or affecting the SharesNotes; (ii) the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of or preventing the use of, the Registration Statement or the Prospectus or the initiation of any proceedings for that purpose, including any notice objecting to the use of the Registration Statement or order pursuant to Section 8(e) of the 1940 Act having been issued and proceedings therefor initiated, or to the knowledge of the Company, threatened by the Commission; (iii) receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Shares Notes for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (iv) the occurrence of any event that makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or Prospectus so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (v) the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate.
(c) There shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and Subsidiaries its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (after giving effect to any amendment or supplement thereto) the effect of which, is, in the reasonable judgment of the Agent, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares Notes as contemplated by the Registration Statement (after giving effect to any amendment thereof) and the Prospectus Supplement (after giving effect to any amendment or supplement thereto).
(d) The Agent shall have received the opinion opinions of Company Counsel and Counsel required to be delivered pursuant Section 6(o) on or before the date on which such deliveries delivery of such opinions are is required pursuant to Section 6(o).
(e) The Agent shall have received the opinion of Maryland Counsel required to be delivered pursuant Section 6(p) on or before the date on which such delivery of such opinion is required pursuant to Section 6(p).
(f) The Agent shall have received the Comfort Letter required to be delivered pursuant Section 6(q) on or before the date on which such delivery of such letter is required pursuant to Section 6(q).
(g) The Agent shall have received the certificates required to be delivered pursuant to Section 6(n) and Section 6(r) on or before the date on which delivery of such certificate is required pursuant to Section 6(n) and Section 6(r), respectively.
(h) The Agent shall have received the opinion of Agent Counsel required to be delivered pursuant Section 6(s) on or before the date on which such delivery of such opinion is required pursuant to Section 6(s).
(i) The Notes shall either have been (i) approved for listing on the NYSE or (ii) the Company shall have submitted to the NYSE a Supplemental Listing Application for listing of the Notes on the NYSE at, or prior to, the issuance of any Placement Notice.
(j) Trading in the 2024 Notes, the 2028 Notes, the 2029 Notes or the Notes shall not have been suspended on the NYSE.
(k) The Notes shall be rated at least BBB- by Standard & Poor’s Ratings Services and at least BBB by Xxxxx Bond Rating Agency, Inc.
(l) On or after each Applicable Time and each Settlement Date (i) no downgrading shall have occurred in the rating accorded to the Company’s debt securities (including the 2024 Notes, the 2028 Notes, the 2029 Notes and the Notes) by any “nationally recognized statistical rating organization”, as that 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, with possible negative implications, its rating of any of the Company’s debt securities (including the 2024 Notes, the 2028 Notes, the 2029 Notes and Notes).
(m) All filings with the Commission required by Rule 497 under the 1933 Act to have been filed prior to the sale of Notes hereunder shall have been made within the applicable time period prescribed for such filing by Rule 497.
(n) FINRA shall have confirmed that it has no objection with respect to the fairness and reasonableness of the placement terms and arrangements set forth herein.
Appears in 1 contract
Samples: Debt Distribution Agreement (Prospect Capital Corp)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder shall be subject to the continuing accuracy and completeness of the representations and warranties made by the Company, the Adviser and the Administrator herein, to the due performance by the Company of its obligations hereunder, and to the continuing satisfaction (or waiver by the Agent in its sole discretion) of the following additional conditions:
(a) The Registration Statement shall have become effective and shall be available for the sale of all Shares to be issued and sold hereunder.
(b) None of the following events shall have occurred and be continuing: (i) receipt by the Company of any request for additional information from the Commission or any other federal or state governmental authority during the period of effectiveness of the Registration Statement, the response to which would require any amendments or supplements to the Registration Statement or the Prospectus relating to or affecting the Shares; (ii) the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, including any notice objecting to the use of the Registration Statement or order pursuant to Section 8(e) of the 1940 Act having been issued and proceedings therefor initiated, or to the knowledge of the Company, threatened by the Commission; (iii) receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (iv) the occurrence of any event that makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or Prospectus so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (v) the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate.
(c) There shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and Subsidiaries its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (after giving effect to any amendment or supplement thereto) the effect of which, is, in the reasonable judgment of the Agent, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (after giving effect to any amendment thereof) and the Prospectus Supplement (after giving effect to any amendment or supplement thereto).
(d) The Agent shall have received the opinion opinions of Company Counsel and Maryland Counsel required to be delivered pursuant Section 6(o) on or before the date on which such deliveries of such opinions are required pursuant to Section 6(o).
(e) The Agent shall have received the Comfort Letter required to be delivered pursuant Section 6(p) on or before the date on which such delivery of such letter is required pursuant to Section 6(p).
(f) The Agent shall have received the certificates required to be delivered pursuant to Section 6(n) and Section 6(q) on or before the date on which delivery of such certificate is required pursuant to Section 6(n) and Section 6(q), respectively.
(g) The Agent shall have received the opinion of Agent Counsel required to be delivered pursuant Section 6(r) on or before the date on which such delivery of such opinion is required pursuant to Section 6(r).
(h) Trading in the Common Stock shall not have been suspended on Nasdaq.
(i) All filings with the Commission required by Rule 497 to have been filed prior to the sale of Shares hereunder shall have been made within the applicable time period prescribed for such filing by Rule 497.
(j) FINRA shall have confirmed that it has no objection with respect to the fairness and reasonableness of the placement terms and arrangements set forth herein.
(k) If any condition specified in this Section 7 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Agent by notice to the Company (which termination shall be effective as of the time of the receipt by the Company of such notice), and such termination shall be without liability of any party to any other party except as provided in Section 5 hereof and except that, in the case of any termination of this Agreement, Sections 8, 10, 13, 15 and 16 hereof shall survive such termination and remain in full force and effect.
Appears in 1 contract
Samples: Equity Distribution Agreement (Gladstone Capital Corp)
Conditions to the Agent’s Obligations. The Company and the Agent agree that obligations of the Agent hereunder shall be are subject to the continuing accuracy and completeness of the representations and warranties made by of the Company, Company contained herein as of the Adviser date hereof and the Administrator hereinClosing Times, to the due accuracy of the statements of officers and directors of the Company and its subsidiaries (including the Bank) made pursuant to the provisions hereof, to the performance by the Company and its subsidiaries (including the Bank) of its their obligations hereunder, and to the continuing satisfaction (or waiver by the Agent in its sole discretion) of the following additional further conditions:
(a) The Registration Statement shall have become effective and shall be available for at or before the sale date of all Shares to be issued and sold hereunder.
(b) None of the following events shall have occurred and be continuing: (i) receipt by the Company of any request for additional information from the Commission or any other federal or state governmental authority during the period of effectiveness of the Registration Statementthis Agreement, the response to which would require any amendments or supplements to the Registration Statement or the Prospectus relating to or affecting the Shares; (ii) the issuance by the Commission or any other federal or state governmental authority of any no stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for shall have been issued, and prior to that purposetime, including any notice objecting no stop order proceeding shall have been initiated or, to the use of the Registration Statement or order pursuant to Section 8(e) of the 1940 Act having been issued and proceedings therefor initiated, or to the knowledge of the Company’s knowledge, threatened by the Commission; (iii) receipt by the Company of any notification with respect to the suspension . Any request of the qualification or exemption from qualification Commission for inclusion of any of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (iv) the occurrence of any event that makes any statement made additional information in the Registration Statement or the Prospectus untrue in or otherwise shall have been complied with to the reasonable satisfaction of the Agent and the Company. The Company shall not have filed with the Commission the Prospectus or any material respect amendment or that requires the making of any changes in supplement to the Registration Statement or the Prospectus so without consent of the Agent, which consent shall not have been unreasonably withheld or delayed. The Agent shall not have discovered and disclosed to the Company, on or prior to the date of this Agreement, that the Registration Statement, the General Disclosure Package or the Prospectus or any amendment or supplement to the Registration Statement, the General Disclosure Package or the Prospectus contains an untrue statement of a fact that, in the case reasonable opinion of the Agent, is material or omits to state a fact that, in the reasonable opinion of the Agent, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(b) At each Closing Time, the Agent shall have received:
(i) The favorable opinion, dated as of the applicable Closing Time, of Xxxxxxxxxx Xxxxxxxx, LLP, acceptable to Agent and in form and substance satisfactory to counsel for Agent, as set forth in Exhibit A hereto.
(ii) The letter of Xxxxxxxxxx Xxxxxxxx LLP in form and substance to the effect that during the preparation of the Registration Statement, the General Disclosure Package and the Prospectus, Xxxxxxxxxx Xxxxxxxx LLP participated in conferences with certain officers of and other representatives of the Company and the Bank, counsel to Agent, representatives of the independent public accounting firm for the Company and representatives of Agent at which the contents of the Registration Statement, the General Disclosure Package and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 9(b)(i) hereof) Xxxxxxxxxx Xxxxxxxx LLP has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement, the General Disclosure Package and Prospectus, on the basis of the foregoing, nothing has come to the attention of Xxxxxxxxxx Xxxxxxxx LLP that caused Xxxxxxxxxx Xxxxxxxx LLP to believe that (A) the Registration Statement at the time it will not contain was declared effective by the Commission, (B) the General Disclosure Package as of the time and date as of which the subscription ratio and subscription price were determined and as of the date of such letter and (C) the Prospectus, as of its date and as of the date of such letter, contained or contains any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit omitted to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that counsel need express no comment or opinion with respect to the financial statements, schedules and other financial data included in the Registration Statement, the Prospectus or the General Disclosure Package).
(iii) The favorable opinion, dated as of the applicable Closing Time, of Xxxxx Day, with respect to such matters as the Agent may reasonably require, in form and substance satisfactory to the Agent.
(c) Concurrently with the execution of this Agreement and on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement, Xxxxx Xxxxxxx LLP shall have furnished to the Agent a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to the Agent, containing statements and information of the type ordinarily included in accountants “comfort letters” with respect to the financial statements of the Company and certain financial information contained in the Prospectus.
(d) At the applicable Closing Time, Xxxxx Xxxxxxx LLP shall have delivered a letter, dated as of such Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (c) of this Section, except that the specified date referred to shall be a date not more than three business days prior to the Closing Date.
(e) At the applicable Closing Time, counsel to Agent shall have been furnished with such documents and opinions as counsel for Agent may reasonably require for the purpose of enabling them to advise Agent with respect to the issuance and sale of the Common Stock as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations and warranties, or the fulfillment of any of the conditions herein contained.
(f) At the applicable Closing Time, Agent shall receive a certificate of the Chief Executive Officer and Chief Financial Officer of the Company and the Bank, dated as of such Closing Time, without personal liability to the effect that: (i) they have examined the Prospectus and at the time the Prospectus became authorized for final use, the Prospectus did not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) there has not been, since the respective dates as of which information is given in the Prospectus, any material adverse change in the financial condition, results of operation, capital, properties or business affairs of the Company and the Bank, considered as one enterprise, whether or not arising in the ordinary course of business; (iii) the representations and warranties contained in Section 6 of this Agreement are true and correct with the same force and effect as though made at and as of the Closing Times; (iv) the Company has complied in all material respects with all material agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Times including the conditions contained in this Section 9; and (v) no stop order has been issued or, to their knowledge, is threatened, by the Company’s reasonable determination that a post-effective amendment to Commission or any other governmental body.
(g) The Company shall not have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and the Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Registration Statement would be appropriate.
(c) There and the Prospectus, and since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any material change, or any development involving a prospective changematerial change in, in or affecting the condition (general affairs of, management, financial or otherwise)position, retained earnings, business long-term debt, shareholders’ equity or properties results of operations of the Company and Subsidiaries taken as a wholeCompany, whether or not arising from transactions in the ordinary course of business, except otherwise than as set forth in or contemplated in the Prospectus (after giving effect to any amendment or supplement thereto) Registration Statement and the Prospectus, the effect of which, isin any such case described above, is in the Agent’s reasonable judgment of the Agent, so sufficiently material and adverse as to make it impractical impracticable or inadvisable to proceed with the offering Stock Offering on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the applicable Closing Time: (i) in the reasonable opinion of Agent there shall have been no material adverse change in the financial condition or delivery in the earnings, operations, capital, properties or business affairs of the Shares Company and the Bank, considered as one enterprise, from and as of the latest dates as of which such condition is set forth in the Prospectus, except as referred to therein; (ii) there shall have been no material transaction entered into by the Company or the Bank, independently or considered as one enterprise, from the latest date as of which the financial condition of the Company is set forth in the Prospectus, other than transactions referred to or contemplated therein; (iii) neither the Company nor the Bank shall have received from the FDIC or the OTS any direction (oral or written) to make any material change in the method of conducting their business with which it has not complied with in all material respects (which direction, if any, shall have been disclosed to Agent) and which would reasonably be expected to have a Material Adverse Effect; (iv) except as disclosed in the General Disclosure Package and the Prospectus, the Company and its subsidiaries (including the Bank) are not in violation of any enforcement action (formal or informal) from the OTS, the FDIC, or any other agency that has directed the Company or any of its subsidiaries (including the Bank) to make any material change in the method of conducting their respective businesses; (v) neither the Company nor the Bank shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any material outstanding indebtedness; (vi) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, shall be pending or, to the knowledge of the Company or the Bank, threatened against the Company or the Bank or affecting any of their properties wherein an unfavorable decision, ruling or finding would reasonably be expected to have a Material Adverse Effect; and (vii) the Securities shall have been qualified or registered for offering and sale or issuance under the securities or “Blue Sky” laws of the jurisdictions requested by Agent.
(i) At or prior to the applicable Closing Date, the Agent shall receive (i) a copy of the order from the Commission declaring the Registration Statement effective, (after giving effect to ii) a certified copy of the First Amended and Restated Articles of Incorporation of the Company, (iii) a certificate from the FDIC evidencing the Bank’s insurance of accounts, and (vi) any amendment thereof) and the Prospectus Supplement (after giving effect to any amendment or supplement thereto)other documents that Agent shall reasonably request.
(dj) The Subsequent to the date hereof, there shall not have occurred any of the following: (i) a suspension or limitation in trading in securities generally on the New York Stock Exchange, the Nasdaq Global Select Market, the Nasdaq Capital Market or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required by either of such exchanges or FINRA or by order of the Commission or any other governmental authority other than temporary trading halts or limitations (A) imposed as a result of intraday changes in the Dow Xxxxx Industrial Average, (B) lasting no longer than until the regularly scheduled commencement of trading on the next succeeding business-day, and (C) which, when combined with all other such halts occurring during the previous five business days, total less than three; (ii) a general moratorium on the operations of federally-insured financial institutions or general moratorium on the withdrawal of deposits from federally-insured financial institutions declared by either federal or state authorities; (iii) any outbreak of hostilities or escalation thereof or other calamity or crisis, including, without limitation, terrorist activities after the date hereof; or (iv) a material adverse change in the United States financial markets or elsewhere if the effect of any of (i) through (iv) herein, in Agent’s reasonable judgment, makes it impracticable or inadvisable to proceed with the Stock Offering on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(k) Prior to the distribution of the Prospectus, the Agent shall have received an agreement substantially in the opinion form of Exhibit B hereto signed by the persons listed on Schedule A hereto.
(l) All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to Agent and of counsel for Agent. Any certificate signed by an officer of the Company Counsel required or the Bank and delivered to Agent or to counsel for Agent shall be deemed a representation and warranty by the Company or the Bank, as the case may be, to Agent as to the statements made therein. If any condition to Agent’s obligations hereunder to be delivered pursuant fulfilled prior to or at the applicable Closing Time is not fulfilled, Agent may terminate this Agreement (provided that if this Agreement is so terminated but the sale of Securities is nevertheless consummated, Agent shall be entitled to the compensation provided for in Section 6(o4 hereof) on or, if Agent so elects, may waive any such conditions which have not been fulfilled or before may extend the date on which such deliveries time of such opinions are their fulfillment.
(m) Prior to the Initial Closing Date, the Company shall have received all necessary Shareholder Approvals required pursuant to Section 6(o)for the consummation of the Stock Offering and performance of its obligations under this Agreement.
Appears in 1 contract
Samples: Agency Agreement (PVF Capital Corp)
Conditions to the Agent’s Obligations. The obligations of the Agent Agents hereunder shall be subject to the continuing accuracy and completeness of the representations and warranties made by the Company, the Adviser and the Administrator herein, to the due performance by the Company of its obligations hereunder, and to the continuing satisfaction (or waiver by the Agent Agents in its their sole discretion) of the following additional conditions:
(a) The Registration Statement shall have become effective and shall be available for the sale of all Shares to be issued and sold hereunder.
(b) None of the following events shall have occurred and be continuing: (i) receipt by the Company of any request for additional information from the Commission or any other federal or state governmental authority during the period of effectiveness of the Registration Statement, the response to which would require any amendments or supplements to the Registration Statement or the Prospectus relating to or affecting the Shares; (ii) the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, including any notice objecting to the use of the Registration Statement or order pursuant to Section 8(e) of the 1940 Act having been issued and proceedings therefor initiated, or to the knowledge of the Company, threatened by the Commission; (iii) receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (iv) the occurrence of any event that makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or Prospectus so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (v) the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate.
(c) There shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and Subsidiaries its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (after giving effect to any amendment or supplement thereto) the effect of which, is, in the reasonable judgment of the Agent, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (after giving effect to any amendment thereof) and the Prospectus Supplement (after giving effect to any amendment or supplement thereto).
(d) The Agent Agents shall have received the opinion opinions of Company Counsel and Maryland Counsel required to be delivered pursuant Section 6(o) on or before the date on which such deliveries of such opinions are required pursuant to Section 6(o).
(e) The Agents shall have received the Comfort Letter required to be delivered pursuant Section 6(p) on or before the date on which such delivery of such letter is required pursuant to Section 6(p).
(f) The Agents shall have received the certificates required to be delivered pursuant to Section 6(n) and Section 6(q) on or before the date on which delivery of such certificate is required pursuant to Section 6(n) and Section 6(q), respectively.
(g) The Agents shall have received the opinion of Agents Counsel required to be delivered pursuant Section 6(r) on or before the date on which such delivery of such opinion is required pursuant to Section 6(r).
(h) Trading in the Common Stock shall not have been suspended on Nasdaq.
(i) [Reserved.]
(j) If applicable, FINRA shall have confirmed that it has no objection with respect to the fairness and reasonableness of the placement terms and arrangements set forth herein.
(k) If any condition specified in this Section 7 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Agents by notice to the Company (which termination shall be effective as of the time of the receipt by the Company of such notice), and such termination shall be without liability of any party to any other party except as provided in Section 5 hereof and except that, in the case of any termination of this Agreement, Sections 8, 10, 13, 15 and 16 hereof shall survive such termination and remain in full force and effect.
Appears in 1 contract
Samples: Equity Distribution Agreement (Gladstone Capital Corp)
Conditions to the Agent’s Obligations. The obligations of Agent's obligation to sell the Agent Units and close hereunder shall be subject to the continuing accuracy and completeness of the condition that all representations and warranties made by and other statements herein of the CompanyCompany are true and correct, the Adviser and the Administrator herein, to the due performance by condition that the Company shall have performed all of its obligations hereunder theretofore to be performed prior to the sale of the Units and closing hereunder, and to the continuing satisfaction (or waiver by the Agent in its sole discretion) of the following additional conditions:
(a) The Registration Statement No stop order suspending the offer and/or sale of the Securities shall have become effective been issued and no proceedings therefor shall be available pending or threatened, by the Commission or any state securities division. Any requests for additional information on the sale part of all Shares any state securities division to be issued included in the Memorandum shall have been complied with to the Agent's reasonable satisfaction, and sold hereunderno amendment or supplement to the Memorandum shall be made to which the Agent, or the Agent's counsel, shall have reasonably objected after having received reasonable notice.
(b) None There shall not have occurred any adverse change, or any development involving a prospective adverse change in, or affecting the business or properties of, the Company which, in the Agent's reasonable opinion, would materially adversely affect, the offer and sale of the following events Units on the Company's behalf.
(c) The Agent shall not have occurred and be continuing: (i) receipt been advised by the Company of any request for additional information from and shall not have advised the Commission Company that the Memorandum, or any other federal amendment thereof or state governmental authority during the period of effectiveness of the Registration Statementsupplement thereto, the response to which would require any amendments or supplements to the Registration Statement or the Prospectus relating to or affecting the Shares; (ii) the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, including any notice objecting to the use of the Registration Statement or order pursuant to Section 8(e) of the 1940 Act having been issued and proceedings therefor initiated, or to the knowledge of the Company, threatened by the Commission; (iii) receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (iv) the occurrence of any event that makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or Prospectus so that, in the case of the Registration Statement, it will not contain contained any untrue statement of a material fact which, in the opinion of its legal counsel, is material, or omit that the Memorandum omits to state any a fact which, in the opinion of such counsel, is material fact and is required to be stated therein or is necessary to make the statements therein contained therein, in light of the circumstances under which they were made, not misleading misleading; provided, however, that this paragraph (c) shall not apply to any statements or omissions which are based upon and conform to written information furnished to the Company by the Agent (or on behalf of the Agent and specifically at the request of the Agent) specifically for use in the Memorandum or any amendment thereof or supplement thereto.
(d) Xxxxxx & Xxxxxx, P.A., counsel for the Company, shall have furnished to the Agent as of each Closing Date (as defined herein) such opinion or opinions in form and substance satisfactory to the Agent and the Agent's counsel, to the effect that:
(i) The Company has been duly incorporated and is validly existing in good standing under the laws of the State of Utah (assuming that such laws are substantially similar to the laws of the State of Minnesota); has the requisite corporate power to own, lease and operate its properties and conduct its business as described in the Memorandum; and is duly qualified to do business as a foreign corporation in good standing in the States of Minnesota and Wisconsin.
(ii) The number of authorized, and to the best of such counsel's knowledge, the number of issued and outstanding shares of capital stock of the Company are as set forth in the Memorandum (except as for the addition of Securities issued pursuant to this Offering), and all such capital stock has been duly authorized and is validly issued, fully paid and nonassessable. Upon delivery of, and payment for, the Securities pursuant to this Agreement and the Subscription Agreements, the subscribers thereof will acquire the Securities free and clear of all liens, encumbrances or claims. To the best knowledge of such counsel, no preemptive rights, contractual or otherwise, of security holders of the Company exist with respect to the issuance or sale of the Securities by the Company. The Securities conform as to matters of law in all material respects to the description of them made in the Memorandum, and such description accurately sets forth the material legal provisions thereof required to be set forth in the Memorandum.
(iii) The Securities have been duly authorized and, that upon delivery to the subscribers thereof against payment therefor, pursuant to this Agreement and the Subscription Agreements, will be validly issued, fully paid, and nonassessable.
(iv) The certificates evidencing the Securities comply as to form with the applicable provisions of the laws of the State of Utah.
(v) This Agreement and the Agent's Warrants have been duly authorized, executed, and delivered by the Company and are the valid and binding obligations of the Company, enforceable in accordance with their terms, except as enforceability may be limited by the Enforceability Limitations. A sufficient number of shares of Common Stock of the Company have been reserved for issuance by the Company upon exercise of the Agent's Warrants.
(vi) To the best of such counsel's knowledge, there are no material legal or governmental proceedings required by the 1933 Act and the Rules and Regulations to be described or referred to in the case Memorandum that are not described or referred to therein.
(vii) To the best of such counsel's knowledge there are no legal, governmental or administrative proceedings pending or threatened against the Company that relate to patents, trademarks or other intellectual property, except for pending or proposed United States and foreign patent applications.
(viii) No authorization, approval or consent of any governmental authority or agency is necessary in connection with the issuance and sale of the ProspectusSecurities as contemplated under this Agreement, except such as may be required under the Act or under state or other securities laws in connection with the sale of the Securities.
(ix) Assuming that the Securities are offered and sold as contemplated by the Memorandum and this Agreement (including all representations and warranties contained therein), the offer, sale, issuance and delivery of the Securities are exempt from the registration and prospectus delivery requirements of the Act.
(x) To the best of such counsel's knowledge, the execution, delivery, and performance of the Agency Agreement and any issuance and delivery of Securities is not in material contravention of any of the provisions of any note, indenture, mortgage, deed of trust, joint venture agreement, agreement or other instrument known to such counsel to which the Company is a party or by which it will is bound and which is material to the business of the Company as a whole, or of any material law, rule or regulation of the United States, or the State of Minnesota, or any judgment, order or decree known to such counsel and applicable to the Company of any court having jurisdiction over the Company or any of its properties. In expressing the foregoing opinion, as to matters of fact relevant to conclusions of law, counsel may rely, to the extent that they deem proper, upon certificates of public officials and of the officers of the Company, provided that copies of such officers' certificates are attached to the opinion.
(e) The Agent and purchasers shall have received from the Company a certificate, dated as of each Closing Date, of the principal executive officer and the principal financial or accounting officer of the Company to the effect that:
(i) The representations and warranties of the Company in this Agreement are true and correct as if made on each Closing Date;
(ii) the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at, or prior to, such date;
(iii) as of each Closing Date, the Memorandum and any supplement thereto, contained all statements and information required to be included therein, the Memorandum did not contain include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under in which they were made, not misleading, and, since the date of the Memorandum there has occurred no event required to be set forth in an amendment to the Memorandum which has not been so set forth; provided, however, that such certificate does not require any representation concerning statements in, or omissions from, the Memorandum, or any amendment thereof or supplement thereto, which are based upon and conform to written information furnished to the Company by the Agent specifically for use in the preparation of the Memorandum or any such amendment or supplement;
(iv) except as is otherwise expressly stated in the Memorandum, there are no material actions, suits or proceedings pending before any court or governmental agency, authority or body or, to the best of their knowledge, threatened to which the Company is a party or of which the business or property of the Company is subject;
(v) subsequent to the date as of which information is given in the Memorandum, and except as contemplated or referred to in the Memorandum, the Company has not incurred any direct, or to the best of their knowledge, contingent liabilities or obligations material to the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate.
(c) There shall not have been any change, or entered into any development involving a prospective changematerial transactions, in except liabilities, obligations or affecting the condition (financial or otherwise), earnings, business or properties of the Company and Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of businessbusiness or relating to the offering of Units pursuant to the Memorandum, except as set forth in or contemplated and there has not been any change in the Prospectus (after giving effect to capital stock, short-term or long-term debt of the Company, or any amendment or supplement thereto) the effect of which, is, material adverse change in the reasonable judgment financial position, net worth or results of operations of the AgentCompany;
(vi) subsequent to the dates as of which information is given in the Memorandum, so the Company has not sustained any material and adverse as to make it impractical loss of, or inadvisable to proceed with the offering damage to, its properties, whether or delivery of the Shares as contemplated by the Registration Statement (after giving effect to any amendment thereof) and the Prospectus Supplement (after giving effect to any amendment or supplement thereto)not insured.
(df) The Agent and the purchasers shall have received received, dated as of each Closing Date, from the opinion Secretary of the Company Counsel required a certificate of incumbency certifying the names, titles and signatures of the officers authorized to execute the resolutions of the Board of Directors of the Company authorizing and approving the execution, delivery and performance of this Agreement, a copy of such resolutions to be delivered pursuant Section 6(oattached to such certificate, certifying such resolutions and certifying that the Articles of Incorporation of the Company and the Bylaws of the Company in the form attached thereto have been validly adopted and have not been amended or modified.
(g) on Prior to or before simultaneously with the date on which such deliveries First Closing, the Additional Investors (as defined in the Memorandum) shall have purchased at a price to equal to $1.20 per unit at least 583,333 units, each consisting of such opinions are required pursuant two shares of the Company's Series A Cumulative Convertible Preferred Stock (convertible into two shares of the Company's Common Stock) and one redeemable Warrant to Section 6(o)purchase one share of the Company's Common Stock.
Appears in 1 contract
Samples: Agency Agreement (U Ship Inc)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder shall be subject to the continuing accuracy and completeness of the representations and warranties made by the Company, Company and the Adviser and the Administrator herein, to the due performance by the Company of its obligations hereunder, and to the continuing satisfaction (or waiver by the Agent in its sole discretion) of the following additional conditions:
(a) The Registration Statement shall have become effective and shall be available for the sale of all Shares to be issued and sold hereunder.
(b) None of the following events shall have occurred and be continuing: (i) receipt by the Company of any request for additional information from the Commission or any other federal or state governmental authority during the period of effectiveness of the Registration Statement, the response to which would require any amendments or supplements to the Registration Statement or the Prospectus relating to or affecting the Shares; (ii) the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, including any notice objecting to the use of the Registration Statement or order pursuant to Section 8(e) of the 1940 Investment Company Act having been issued and proceedings therefor initiated, or to the knowledge of the Company, threatened by the Commission; (iii) receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (iv) the occurrence of any event that makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or Prospectus so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (v) the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate.
(c) There shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and Subsidiaries its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (after giving effect to any amendment or supplement thereto) the effect of which, is, in the reasonable judgment of the Agent, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (after giving effect to any amendment thereof) and the Prospectus Supplement (after giving effect to any amendment or supplement thereto).
(d) The Agent shall have received the opinion of Company Counsel required to be delivered pursuant Section 6(o) on or before the date on which such deliveries delivery of such opinions opinion are required pursuant to Section 6(o).
(e) The Agent shall have received the opinion of 1940 Act Counsel required to be delivered pursuant Section 6(p) on or before the date on which such delivery of such opinion is required pursuant to Section 6(p).
(f) The Agent shall have received the Comfort Letter required to be delivered pursuant Section 6(q) on or before the date on which such delivery of such letter is required pursuant to Section 6(q).
(g) The Agent shall have received the certificates required to be delivered pursuant to Section 6(n) and Section 6(r) on or before the date on which delivery of such certificate is required pursuant to Section 6(n) and Section 6(r), respectively.
(h) The Agent shall have received the opinion of Agent Counsel required to be delivered pursuant Section 6(s) on or before the date on which such delivery of such opinion is required pursuant to Section 6(s).
(i) Trading in the Common Stock shall not have been suspended on NASDAQ.
(j) All filings with the Commission required by Rule 497 under the 1933 Act to have been filed prior to the sale of Shares hereunder shall have been made within the applicable time period prescribed for such filing by Rule 497.
(k) FINRA shall have confirmed that it has no objection with respect to the fairness and reasonableness of the placement terms and arrangements set forth herein.
Appears in 1 contract
Samples: Equity Distribution Agreement (Gladstone Capital Corp)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder shall be subject and the occurrence of the Closing and the Conversion are subject, to the continuing accuracy and completeness of extent not waived in writing by the Agent, to the condition that all representations and warranties made by of the CompanyOC Parties herein contained are, at and as of the commencement of the Offerings and (except to the extent such representations and warranties speak as of an earlier date) at and as of the Closing Date, true and correct, the Adviser and condition that the Administrator hereinOC Parties shall have performed, in all material respects, all of their obligations hereunder to the due performance by the Company of its obligations hereunder, be performed on or before such dates and to the continuing satisfaction (or waiver by the Agent in its sole discretion) of the following additional further conditions:
(a) The Registration Statement shall have become been declared effective by the Commission, the Conversion Application and Holding Company Application shall be available have been approved by the OTS and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the knowledge of the OC Parties, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the sale Prospectus or the consummation of all Shares the Conversion shall have been issued, or proceedings therefor initiated or, to be issued and sold hereunderthe knowledge of the OC Parties, threatened by the OTS, the Commission, or any other governmental body.
(b) None At the Closing Date, the Agent shall have received:
(1) The opinion, dated as of the following events shall have occurred Closing Date, of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C., special counsel for the OC Parties, and/or local counsel acceptable to the Agent, in form and be continuing: substance satisfactory to the Agent and counsel for the Agent to the effect that:
(i) receipt The Holding Company is a corporation duly incorporated and validly existing and in good standing under the Maryland Business Corporation Law, with corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus, and is in good standing in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(ii) On the date hereof, the Bank is a validly existing federally-chartered stock savings association, and upon consummation of the Conversion, the Bank will continue to be a validly existing federally-chartered stock savings association, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus. The activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the FDIC and the OTS (or valid waivers granted by the OTS from such rules, regulations and practices); the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment of the purchase price therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any request mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) To such counsel's actual knowledge, the Bank has obtained all licenses, permits and other governmental authorizations that are material for additional information the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect.
(iv) The Bank is a member in good standing of the Federal Home Loan Bank of New York. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended. To such counsel's knowledge, no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or threatened.
(v) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption "Capitalization," and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date (except for the shares issued upon incorporation of the Holding Company); (b) the shares to be subscribed for in the Offerings will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be duly and validly issued and fully paid and non-assessable, except for shares purchased by the ESOP with funds borrowed from the Commission Company to the extent payment therefor in cash has not been received; and (c) the issuance of the Shares is not subject to preemptive rights under the certificate of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan. To such counsel's knowledge, upon issuance of the shares of Common Stock, good title to the shares will be transferred from the Holding Company to the purchasers thereof against payment therefor, subject to such claims as may be asserted against the purchasers thereof by third-party claimants (such as any liens, charges or other claims).
(vi) The OC Parties have full corporate power and authority to enter into this Agreement and to consummate the transactions contemplated hereby and by the Plan. 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 the OC Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the OC Parties, enforceable in accordance with its terms, except as rights to indemnity and contribution thereunder may be limited under applicable law, subject to the qualification that enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium, reorganization, conservatorship, receivership or other similar laws (including the laws of fraudulent conveyance) or judicial decisions affecting the enforceability of creditors' rights generally, the rights of creditors of savings banks or financial institutions, the accounts of which are insured by the FDIC, (ii) general equity principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) and to the effect of certain laws and judicial decisions upon the availability of injunctive relief and enforceability of equitable remedies, including the remedies of specific performance and self-help, (iii) laws relating to the safety and soundness of insured depository institutions, and (iv) applicable law or public policy with respect to the indemnification and/or contribution provisions of Sections 23A and 23B of the Federal Reserve Act and except that no opinion need be expressed as to the effect or availability of equitable remedies or injunctive relief (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(vii) Based on the minutes of the proceedings of the Board of Directors, the Plan has been duly adopted by the Board of Directors of the Bank in the manner required by the Conversion Regulations and the Bank's charter and bylaws. The Plan complies in all material respects with the Conversion Regulations.
(viii) The Conversion Application and the Holding Company Application have been approved by the OTS, and, to such counsel's knowledge, no action has been taken and none is pending or threatened to revoke such approval or to suspend the offering or the use of the Prospectus. Subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state governmental authority during regulatory agency, public board or body is required in connection with the period execution and delivery of effectiveness this Agreement, the offer, sale and issuance of the Registration StatementShares and the consummation of the Conversion, except as may be required under the response securities or "Blue Sky" laws of various jurisdictions as to which would require any amendments or supplements no opinion need be rendered and except as may be required under the rules and regulations of the NASD as to the which no opinion need be rendered.
(ix) The Registration Statement or is effective under the Prospectus relating 1933 Act and to or affecting the Shares; (ii) the issuance by the Commission or any other federal or state governmental authority of any such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued, or the initiation of any proceedings for that purpose, including any notice objecting to the use of the Registration Statement purpose have been instituted or order pursuant to Section 8(e) of the 1940 Act having been issued and proceedings therefor initiated, or to the knowledge of the Company, threatened by the Commission; .
(iiix) receipt by The terms and provisions of the Company shares of any notification with respect Common Stock conform, in all material respects, to the suspension of the qualification or exemption from qualification of any of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (iv) the occurrence of any event that makes any statement made description thereof contained in the Registration Statement and the Prospectus, and the form of certificates used to evidence the shares of Common Stock are in due and proper form.
(xi) At the time the Conversion Application was approved by the OTS, the Conversion Application (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS, except as modified or waived in writing by the OTS (other than the financial statements, notes thereto, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel's knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS in approving the Applications.
(xii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (as amended or supplemented) (other than the financial statements, notes thereto, financial tables or other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the rules and regulations promulgated thereunder.
(xiii) To such counsel's knowledge, there are no legal or governmental proceedings pending, or threatened (i) asserting the invalidity of this Agreement, (ii) seeking to prevent the Conversion or the Prospectus untrue in any material respect offer, sale or that requires issuance of the making of any changes Shares, or (iii) which are required to be disclosed in the Registration Statement or Prospectus so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, that in the case of the and Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements other than those disclosed therein, in the light of the circumstances under which they were made, not misleading; and (v) the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate.
(cxiv) There shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated The information in the Prospectus (after giving effect under the captions "Supervision and Regulation," "Taxation," "Restrictions on Acquisition of OC Financial, Inc.," "Description of Capital Stock," and "The Conversion and Reorganization," to any amendment the extent that such information constitutes matters of law, summaries of legal matters, documents or supplement thereto) the effect of whichproceedings, isor legal conclusions, has been reviewed by such counsel and is accurate in the reasonable judgment of the Agent, so all material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (after giving effect to any amendment thereof) and the Prospectus Supplement (after giving effect to any amendment or supplement thereto)respects.
(d) The Agent shall have received the opinion of Company Counsel required to be delivered pursuant Section 6(o) on or before the date on which such deliveries of such opinions are required pursuant to Section 6(o).
Appears in 1 contract
Samples: Agency Agreement (OC Financial Inc)
Conditions to the Agent’s Obligations. The obligations of the ------------------------------------- Agent hereunder shall be and the occurrence of the Closing and the Reorganization are subject to the continuing accuracy and completeness of the condition that all representations and warranties made by and other statements of the CompanyPrimary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct, the Adviser and condition that the Administrator herein, Primary Parties shall have performed all of their obligations hereunder to the due performance by the Company of its obligations hereunder, be performed on or before such dates and to the continuing satisfaction (or waiver by the Agent in its sole discretion) of the following additional further conditions:
(a) The Registration Statement shall have become been declared effective by the Commission and the prospectus and proxy statement contained in the MHC Notice and Application shall be available have been approved by the OTS for mailing prior to the sale commencement of all Shares the Offering, the Holding Company Application shall have been approved, and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to be any of the Primary Parties' best knowledge, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Reorganization shall have been issued and sold hereunderor proceedings therefor initiated or, to any of the Primary Parties' best knowledge, threatened by the OTS, the Commission, or any other governmental body.
(b) None At the Closing Date, the Agent shall have received:
(1) The favorable opinion, dated as of the following events shall have occurred Closing Date, of Xxxx Xxxxxx, and/or local counsel acceptable to the Agent in form and be continuing: substance satisfactory to counsel for the Agent to the effect that:
(i) receipt The Holding Company is a corporation duly organized and validly existing and in good standing under the federal laws of the United States of America, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which the failure to qualify would have a material adverse effect on the financial condition, earnings, capital, properties or business affairs of the Primary Parties.
(ii) The Bank is a duly organized and validly existing federally chartered mutual savings association with full power and authority to own its properties and to conduct its business as described in the Prospectus and to enter into this Agreement and perform its obligations hereunder; the activities of the Bank as described in the Prospectus are permitted by the rules, regulations and practices of the OTS; the issuance and sale of the capital stock of the Bank to the Holding Company in the Reorganization has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable; and will be owned of record and beneficially by the Holding Company, free and clear of any request mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The Bank is a member of the FHLB of New York and the Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and to such counsel's knowledge no proceedings for additional information from the Commission termination or revocation of such insurance are pending or threatened.
(iv) Upon consummation of the Reorganization, the MHC will have been duly organized and will be validly existing as a federally chartered mutual holding company, duly authorized to conduct its business and own its properties as described in the Registration Statement and Prospectus.
(v) Upon consummation of the Reorganization, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption "Capitalization," and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date (except for the shares issued upon incorporation of the Holding Company); (b) the shares of Common Stock of the Holding Company issued to the MHC will have been duly and validly authorized for issuance and will be fully paid and nonassessable; (c) the shares of Common Stock of the Holding Company to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; and (d) the issuance of the shares of Common Stock is not subject to preemptive rights under the charter, articles of incorporation or bylaws of any of the Primary Parties, or arising or outstanding by operation of law or, to the best knowledge of such counsel, under any contract, indenture, agreement, instrument or other document, except for the subscription rights under the Plan.
(vi) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 10 and 11 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors' rights generally, or the rights of creditors of savings institutions insured by the FDIC (including the laws relating to the rights of the contracting parties to equitable remedies).
(vii) The Plan has been duly adopted by the board of directors of the Bank and by the members of the Bank, in the manner required by the Conversion Regulations and the Bank's charter and bylaws.
(viii) The OTS Applications have been approved by the OTS and the Prospectus and the Proxy Statement have been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such OTS approvals, no further approval, registration, authorization, consent or other order of any federal or state governmental authority during regulatory agency, public board or body is required in connection with the period execution and delivery of effectiveness this Agreement, the offer, sale and issuance of the Registration StatementShares and the consummation of the Reorganization.
(ix) The purchase by the Holding Company of all of the issued and outstanding capital stock of the Bank has been authorized by the OTS and no action has been taken, the response or, to which would require such counsel's knowledge, is pending or threatened, to revoke any amendments such authorization or supplements to the approval.
(x) The Registration Statement or has become effective under the Prospectus relating to or affecting the Shares; (ii) the issuance by the Commission or any other federal or state governmental authority of any 1933 Act, no stop order suspending the effectiveness of the Registration Statement or has been issued, and, to the initiation best of any such counsel's knowledge, no proceedings for that purpose, including any notice objecting to the use of the Registration Statement purpose have been instituted or order pursuant to Section 8(e) of the 1940 Act having been issued and proceedings therefor initiated, or to the knowledge of the Company, threatened by the Commission; (iii) receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (iv) the occurrence of any event that makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or Prospectus so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (v) the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriatethreatened.
(cxi) There shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties The material tax consequences of the Company and Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as Reorganization are set forth in or contemplated in the Prospectus (after giving effect to any amendment or supplement thereto) under the effect caption "The Reorganization and Offering - - Tax Effects of which, is, in the reasonable judgment of the Agent, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (after giving effect to any amendment thereof) and the Prospectus Supplement (after giving effect to any amendment or supplement thereto).
(d) The Agent shall have received the opinion of Company Counsel required to be delivered pursuant Section 6(o) on or before the date on which such deliveries of such opinions are required pursuant to Section 6(o).the
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder shall be subject hereunder, as to the continuing accuracy and completeness of Shares to be delivered at the Closing Date, are subject, to the extent not waived in writing by the Agent, to the condition that all representations and warranties made by of the CompanyMadison Parties herein are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the Adviser and condition that the Administrator herein, to the due performance by the Company Madison Parties shall have performed all of its obligations hereunderhereunder to be performed on or before such dates, and to the continuing satisfaction (or waiver by the Agent in its sole discretion) of the following additional further conditions:
(a) At the Closing Date, the Madison Parties shall have conducted the Conversion in all material respects in accordance with the Plan, the Conversion Regulations (except to the extent waived or otherwise approved by the OCC and any other applicable regulator), and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon them by the FRB, the Division or any other applicable regulator except in such states in which the registration of the Offering or the Shares has been withdrawn and no injunction, restraining order, or order of any nature by a Federal or state court of competent jurisdiction shall have been issued as of the Closing Date which would prevent the issuance of the Shares. The Registration Statement and all amendments thereto shall have become effective and shall be available for the sale of all Shares to be issued and sold hereunder.
(b) None of the following events shall have occurred and be continuing: (i) receipt by the Company of any request for additional information from the Commission or any other federal or state governmental authority during the period of effectiveness of the Registration Statement, the response to which would require any amendments or supplements to the Registration Statement or the Prospectus relating to or affecting the Shares; (ii) the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, including any notice objecting to the use of the Registration Statement or order pursuant to Section 8(e) of the 1940 Act having been issued and proceedings therefor initiated, or to the knowledge of the Company, threatened by the Commission; (iii) receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (iv) the occurrence of any event that makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or Prospectus so that, in the case of the Registration Statement, it will not contain any an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleading andmisleading. The Prospectus and the Member’s Proxy Statement, that in the case of the Prospectusand all amendments or supplements thereto, it will shall not contain any include an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading. None of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(b) The Registration Statement shall have been declared effective by the Commission and the Conversion Application and the Holding Company Application shall have been approved by the OCC and the FRB, respectively and any other applicable regulator not later than 5:30 p.m. on the date of this Agreement, or with the Agent’s consent at a later time and date; and at the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefore initiated or, to the knowledge of the Madison Parties, threatened by the Commission or any state authority, and no order or other action suspending the authorization of the Prospectus or the consummation of the Conversion shall have been issued or proceedings therefore initiated or, to the Madison Parties’ knowledge, threatened by the Commission, the OCC, the FRB or any other regulatory authority.
(c) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, and upon which Agent’s counsel may rely upon for purposes of delivering its legal opinion pursuant to Section 8(d), of Kxxxxxxxxx Txxxxxxx & Sxxxxxxx LLP, special counsel for the Madison Parties, in form and substance satisfactory to the Agent and its counsel as attached hereto as Exhibit C.
(d) At the Closing Date, the Agent shall have received the favorable opinion, dated as of the Closing Date and addressed to the Agent and for its benefit, of Breyer & Associates PC (“Breyer & Associates”), special counsel for the Agent, in form and substance as attached hereto as Exhibit D .
(e) Prior to the mailing of the Prospectus, a blue sky memorandum from Kxxxxxxxxx Txxxxxxx & Sxxxxxxx LLP relating to the Offering, including Agent’s participation therein, shall have been furnished to the Holding Company with a copy thereof addressed to Agent or upon which Kxxxxxxxxx Txxxxxxx & Sxxxxxxx LLP shall state the Agent may rely. The blue sky memorandum will relate to the necessity of obtaining or confirming exemptions, qualifications or the registration of the Shares under applicable state securities law.
(f) At the Closing Date, the Agent shall receive a certificate of the Chief Executive Officer and the Chief Financial Officer of each of the Madison Parties in form and substance reasonably satisfactory to the Agent’s Counsel, dated as of such Closing Date, to the effect that: (i) they have carefully examined the Prospectus and any Permitted Free Writing Prospectus and, in their opinion, at the time the Prospectus and any Permitted Free Writing Prospectus became authorized for final use, the Prospectus and any Permitted Free Writing Prospectus did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; and (vii) since the Company’s reasonable determination that a post-effective date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Registration Statement would be appropriate.
(c) There shall Prospectus which has not have been so set forth, including specifically, but without limitation, any changematerial adverse change in the condition, or any development involving a prospective change, in or affecting the condition (financial or otherwise), or in the earnings, capital, properties or business or properties of the Company Madison Parties and Subsidiaries taken the conditions set forth in this Section 8 have been satisfied; (iii) since the respective dates as a wholeof which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, capital, properties or business of the Madison Parties independently, or of the Madison Parties considered as one enterprise, whether or not arising from transactions in the ordinary course of business; (iv) the representations and warranties in Section 4 are true and correct with the same force and effect as though expressly made at and as of the Closing Date; (v) the Madison Parties complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date and will comply in all material respects with all obligations to be satisfied by them after the Closing Date; (vi) no stop order suspending the effectiveness of the Registration Statement has been initiated or, except to the knowledge of the Madison Parties, threatened by the Commission or any state authority; (vii) no order suspending the Conversion, the Offering or the use of the Prospectus has been issued and no proceedings for that purpose are pending or, to the knowledge of the Madison Parties, threatened by the FRB, OCC, or any other regulatory authority; and (viii) to the best knowledge of the Madison Parties, no person has sought to obtain review of the final action of the OCC or any other applicable regulator approving the Conversion.
(g) None of the Madison Parties shall have sustained, since the date of the latest financial statements included in the Registration Statement, the General Disclosure Package and Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in or contemplated the Registration Statement and the Prospectus, and since the respective dates as of which information is given in the Prospectus (after giving effect to Registration Statement and the Prospectus, there shall not have been any amendment or supplement thereto) the effect of which, is, Material Adverse Effect that is in the Agent’s reasonable judgment of the Agent, so sufficiently material and adverse as to make it impractical impracticable or inadvisable to proceed with the offering Offering or the delivery of the Shares on the terms and in the manner contemplated in the Prospectus.
(h) Prior to and at the Closing Date: (i) in the reasonable opinion of the Agent, there shall have been no material adverse change in the financial condition, results of operations, business, affairs or prospects of the Madison Parties considered as one enterprise, from that as of the latest dates as of which such condition is set forth in the Prospectus, other than transactions referred to or contemplated therein; (ii) none of the Madison Parties shall have received from the OCC or the FRB, any direction (oral or written) to make any material change in the method of conducting their 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 financial condition, results of operations or business of the Madison Parties taken as a whole; (iii) none of the Madison Parties shall have been in default (nor shall an event have occurred which, with notice or lapse of time or both, would constitute a default) under any provision of any agreement or instrument relating to any outstanding indebtedness; (iv) no action, suit or proceeding, at law or in equity or before or by any federal or state commission, board or other administrative agency, not disclosed in the Prospectus, shall be pending or, to the knowledge of the Madison Parties, threatened against the any of the Madison Parties or affecting any of their properties wherein an unfavorable decision, ruling or finding would have a Material Adverse Effect ; and (v) the Shares shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Registration Statement Madison Parties.
(after giving effect i) Concurrently with the execution of this Agreement, the Agent shall receive a letter from Sxxxxxx & Company, dated as of the date hereof and addressed to any amendment thereofthe Agent: (i) confirming that Sxxxxxx & Company is a firm of independent registered public accountants within the applicable rules of the Public Company Accounting Oversight Board (United States) and stating in effect that in its opinion the consolidated financial statements and related notes of the Bank as of June 30, 2014, December 31, 2013 and 2012, and covered by their opinion included in the Prospectus, and any other more recent unaudited financial statements included in the Prospectus, comply as to form in all material respects with the applicable accounting requirements and related published rules and regulations of the SEC and any other applicable regulator, including the 1933 Act and 1933 Act Regulations; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit in accordance with standards of the Public Company Accounting Oversight Board (United States)) consisting of a reading of the latest available consolidated financial statements of the Bank prepared by the Bank, a reading of the minutes of the meetings of the Boards of Directors and committees, as applicable, of each of the Madison Parties and consultations with officers of the Madison Parties responsible for financial and accounting matters, nothing came to their attention which caused them to believe that: (A) the audited consolidated financial statements and any unaudited interim financial statements included in the Prospectus Supplement are not in conformity with the 1933 Act, applicable accounting requirements of the Commission and GAAP applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Prospectus; or (B) during the period from the date of the latest unaudited interim consolidated financial statements included in the Prospectus to a specified date not more than three business days prior to the date of the Prospectus, except as has been described in the Prospectus, there was any increase in long-term debt of the Madison Parties, other than normal deposit fluctuations for the Bank; non-performing assets, or classified or special mention loans of the Bank; or (C) there was any decrease in the total assets, total loans, the allowance for loan losses, total deposits, loans receivable (net), or retained earnings of the Bank at the date of such letter as compared with amounts shown in the latest balance sheet included in the Prospectus; or (D) there was any decrease in net income or total interest income or net interest income or net interest income after giving effect provision for loan losses, non-interest income or increase in provision for loan losses or non-interest expense of the Bank, in each case for the number of full months commencing immediately after the period covered by the latest audited balance sheet and income statement included in the Prospectus and ended on the latest month end prior to the date of the Prospectus as compared to the corresponding period in the preceding year ; and (iii) stating that, in addition to the audit referred to in their opinion included in the Prospectus and the performance of the procedures referred to in clause (ii) of this subsection (i), they have compared with the general accounting records of the Madison Parties, which are subject to the internal controls of the Madison Parties, the accounting system and other data prepared by the Madison Parties, directly from such accounting records, to the extent specified in such letter, such amounts and/or percentages set forth in the Prospectus and any amendment or supplement theretoPermitted Free Writing Prospectus as the Agent may reasonably request; and they have found such amounts and percentages to be in agreement therewith (subject to rounding).
(dj) The At the Closing Date, the Agent shall have received receive a letter dated the Closing Date, addressed to the Agent, confirming the statements made by Sxxxxxx & Company in the letter delivered by it pursuant to subsection (i) of this Section 8, the “specified date” referred to in clause (ii)(B) of subsection (i) to be a date specified in the letter required by this subsection (j) which for purposes of such letter shall not be more than three business days prior to the Closing Date.
(k) At the Closing Date, the Holding Company shall receive a letter from Fxxxxxx Financial Advisors, Inc., dated the Closing Date (i) confirming that said firm is independent of the Madison Parties and is experienced and expert in the area of corporate appraisals within the meaning of the Conversion Regulations, (ii) stating in effect that the Appraisal prepared by such firm complies in all material respects with the applicable requirements of the Conversion Regulations, and (iii) further stating that its opinion of the aggregate pro forma market value of the Holding Company Counsel required including the Bank, as most recently updated, remains in effect.
(l) At or prior to be delivered pursuant Section 6(othe Closing Date, the Agent shall receive: (i) on or before a copy of the date on which such deliveries of such opinions are required pursuant to Section 6(o).letters from the OCC and the FRB and any other applicable regulator approving the Conversion Application and the Holding Company
Appears in 1 contract
Samples: Agency Agreement (MB Bancorp Inc)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder shall be and the occurrence of the Closing and the Reorganization are subject to the continuing accuracy and completeness of the condition that all representations and warranties made by and other statements of the CompanyPrimary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct, the Adviser and condition that the Administrator herein, Primary Parties shall have performed all of their obligations hereunder to the due performance by the Company of its obligations hereunder, be performed on or before such dates and to the continuing satisfaction (or waiver by the Agent in its sole discretion) of the following additional further conditions:
(a) The Registration Statement shall have become been declared effective by the Commission and the prospectus and proxy statement contained in the MHC Notice and Application shall be available have been approved by the FDIC and the DOBI for mailing prior to the sale commencement of all Shares the Offering, the Holding Company Application shall have been approved, and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to be any of the Primary Parties' best knowledge, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Reorganization shall have been issued and sold hereunderor proceedings therefor initiated or, to any of the Primary Parties' best knowledge, threatened by the FDIC, the DOBI, the FRB, the Commission, or any other governmental body.
(b) None At the Closing Date, the Agent shall have received:
(1) The favorable opinion, dated as of the following events shall have occurred Closing Date, of Xxxxxxx, Spidi, and/or local counsel acceptable to the Agent in form and be continuing: substance satisfactory to counsel for the Agent to the effect that:
(i) receipt The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of New Jersey, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which the failure to qualify would have a material adverse effect on the financial condition, earnings, capital, properties or business affairs of the Primary Parties.
(ii) The Bank is a duly organized and validly existing New Jersey chartered mutual savings bank with full power and authority to own its properties and to conduct its business as described in the Prospectus and to enter into this Agreement and perform its obligations hereunder; the activities of the Bank as described in the Prospectus are permitted by New Jersey law and the rules, regulations and practices of the FDIC and the DOBI; the issuance and sale of the capital stock of the Bank to the Holding Company in the Reorganization has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and non-assessable; and will be owned of record and beneficially by the Company Holding Company, free and clear of any request mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The Bank is a member of the FHLB and the Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and to such counsel's knowledge no proceedings for additional information from the Commission termination or revocation of such insurance are pending or threatened.
(iv) Upon consummation of the Reorganization, the MHC will have been duly organized and will be validly existing as a mutual holding company under New Jersey law, duly authorized to conduct its business and own its properties as described in the Registration Statement and Prospectus.
(v) Upon consummation of the Reorganization, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption "Capitalization," and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date (except for the shares issued upon incorporation of the Holding Company); (b) the shares of Common Stock of the Holding Company issued to the MHC will have been duly and validly authorized for issuance and will be fully paid and non-assessable; (c) the shares of Common Stock of the Holding Company to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and non-assessable; and (d) the issuance of the shares of Common Stock is not subject to preemptive rights under the charter, articles of incorporation or bylaws of any of the Primary Parties, or arising or outstanding by operation of law or, to the best knowledge of such counsel, under any contract, indenture, agreement, instrument or other document, except for the subscription rights under the Plan.
(vi) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections l0 and 1 l hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors' rights generally, or the rights of creditors of savings institutions insured by the FDIC (including the laws relating to the rights of the contracting parties to equitable remedies).
(vii) The Plan has been duly adopted by the board of directors of the Bank and by the members of the Bank, in the manner required by the Conversion Regulations and the Bank's charter and bylaws.
(viii) The Applications have been approved by the FDIC, the DOBI and the FRB and the Prospectus and the Proxy Statement have been authorized for use by the FDIC and the DOBI, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state governmental authority during regulatory agency, public board or body is required in connection with the period execution and delivery of effectiveness this Agreement, the offer, sale and issuance of the Registration StatementShares and the consummation of the Reorganization.
(ix) The purchase by the Holding Company of all of the issued and outstanding capital stock of the Bank has been authorized by the FRB and no action has been taken, the response or, to which would require such counsel's knowledge, is pending or threatened, to revoke any amendments such authorization or supplements to the approval.
(x) The Registration Statement or has become effective under the Prospectus relating to or affecting the Shares; (ii) the issuance by the Commission or any other federal or state governmental authority of any 1933 Act, no stop order suspending the effectiveness of the Registration Statement or has been issued, and, to the initiation best of any such counsel's knowledge, no proceedings for that purpose, including any notice objecting purpose have been instituted or threatened.
(xi) The material tax consequences of the Reorganization are set forth in the Prospectus under the caption "The Reorganization and Offering -- Tax Effects of the Reorganization." The information in the Prospectus under the caption "The Reorganization and Offering -- Tax Effects of the Reorganization" has been reviewed by such counsel and fairly describes such opinions rendered by such counsel to the use of the Registration Statement or order pursuant to Section 8(e) of the 1940 Act having been issued and proceedings therefor initiated, or to the knowledge of the Company, threatened by the Commission; (iii) receipt by the Company of any notification Primary Parties with respect to the suspension such matters.
(xii) The terms and provisions of the qualification or exemption from qualification shares of any of Common Stock conform to the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (iv) the occurrence of any event that makes any statement made description thereof contained in the Registration Statement and the Prospectus, and the forms of certificates proposed to be used to evidence the shares of Common Stock are in due and proper form.
(xiii) At the time the MHC Notice and Application was approved, the MHC Notice and Application (as amended or supplemented) including the Prospectus untrue contained therein, complied as to form in any all material respect respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the FDIC and the DOBI, except as modified or waived in writing by the FDIC and/or the DOBI (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation as to which counsel need express no opinion). To such counsel's knowledge, no person has sought to obtain regulatory or judicial review of the final action of the FDIC, DOBI or FRB approving the Applications.
(xiv) At the time that requires the making of any changes in the Registration Statement or Prospectus so that, in the case of became effective the Registration Statement, it will not contain any untrue statement of a including the Prospectus contained therein (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation as to which counsel need express no opinion), complied as to form in all material fact or omit to state any material fact required to be stated therein or necessary to make respects with the statements therein not misleading and, that in the case requirements of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make l 933 Act and the statements therein, in the light of the circumstances under which they were made, not misleading; rules and (v) the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriateregulations promulgated thereunder.
(cxv) There shall not have been any changeare no legal or governmental proceedings pending or to the best of such counsel's knowledge, threatened (i) asserting the invalidity of this Agreement or any development involving a prospective change(ii) seeking to prevent the Reorganization or the offer, sale or issuance of the Shares.
(xvi) The information in or affecting the condition (financial or otherwise), earnings, business or properties Prospectus under the captions "Regulation," "Taxation," "Restrictions on the Acquisition of the Company and Subsidiaries taken as a wholethe Bank -Provisions of the Company's Charter and Bylaws -- Authorization of Preferred Stock," "Description of Capital Stock of the Company," and "The Reorganization and Offering," to the extent that it constitutes matters of law, whether summaries of legal matters, documents or not arising from transactions proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in the ordinary course of business, all material respects (except as set forth in or contemplated in to the Prospectus (after giving effect to any amendment or supplement thereto) the effect of which, is, in the reasonable judgment of the Agent, so material financial statements and adverse other financial data included therein as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (after giving effect to any amendment thereof) and the Prospectus Supplement (after giving effect to any amendment or supplement theretowhich such counsel need express no opinion).
(d) The Agent shall have received the opinion of Company Counsel required to be delivered pursuant Section 6(o) on or before the date on which such deliveries of such opinions are required pursuant to Section 6(o).
Appears in 1 contract
