Covenants of the Company and the Bank. The Company and the Bank hereby jointly and severally covenant with the Agent as follows: (a) The Company will not, at any time after the date the Registration Statement is declared effective, file any amendment or supplement to the Registration Statement without providing the Agent and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably object. (b) Neither the Bank nor the Company will, at any time after the Conversion Application and Holding Company Application are approved by the Agencies, file any amendment or supplement to such Applications without providing the Agent and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably object. (c) The Company and the Bank will use their best efforts to cause any post-effective amendment to the Registration Statement to be declared effective by the Commission and any post-approval amendment to the Conversion Application and Holding Company Application to be approved by the Agencies and will immediately upon receipt of any information concerning the events listed below notify the Agent: (i) when the Registration Statement, as amended, has become effective; (ii) when the Conversion Application and Holding Company Application, as amended have been approved by the Agencies; (iii) any comments from the Commission, the Agencies or any other governmental entity with respect to the Offering or the transactions contemplated by this Agreement; (iv) of the request by the Commission, the Agencies or any other governmental entity for any amendment or supplement to the Registration Statement, the Conversion Application and the Holding Company Application or for additional information; (v) of the issuance by the Commission, the Agencies or any other governmental entity of any order or other action suspending the Offering or the use of the Registration Statement or the Prospectus or any other filing of the Company or the Bank under the Conversion Regulations, BHC Act or other applicable law, or the threat of any such action; (vi) the issuance by the Commission, the Agencies or any authority of any stop order suspending the effectiveness of the Registration Statement or of the initiation or threat of initiation or threat of any proceedings for that purpose; or (vii) of the occurrence of any event mentioned in paragraph (g) below. The Company and the Bank will make every reasonable effort (i) to prevent the issuance by the Commission, the Agencies or any state authority of any such order and, if any such order shall at any time be issued and (ii) to obtain the lifting thereof at the earliest possible time. (d) The Company and the Bank will deliver to the Agent and to its counsel two conformed copies of the Registration Statement, the Conversion Application and the Holding Company Application, as originally filed, and of each amendment or supplement thereto, including all exhibits. Further, the Company and the Bank will deliver such additional copies of the foregoing documents to counsel to the Agent as may be required for any NASD and "blue sky" filings. (e) The Company and the Bank will furnish to the Agent, from time to time during the period when the Prospectus (or any later prospectus related to this offering) is required to be delivered under the 1933 Act or the Securities Exchange Act of 1934 (the "1934 Act"), such number of copies of such Prospectus (as amended or supplemented) as the Agent may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the rules and regulations promulgated under the 1934 Act (the "1934 Act Regulations"). The Company authorizes the Agent to use the Prospectus (as amended or supplemented, if amended or supplemented) in any lawful manner contemplated by the Plan in connection with the sale of the Shares by the Agent. (f) The Company and the Bank will comply with any and all material terms, conditions, requirements and provisions with respect to the Offering, and the transactions contemplated thereby, imposed by the Commission, the Agencies or the Conversion Regulations or the BHC Act, and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations to be complied with prior to or subsequent to the Closing Date and when the Prospectus is required to be delivered, and during such time period the Company and the Bank will comply, at their own expense, with all material requirements imposed upon them by the Commission, the Agencies or the Conversion Regulations, the BHC Act and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, including, without limitation, Rule 10b-5 under the 1934 Act, in each case as from time to time in force, so far as necessary to permit the continuance of sales or dealing in the Common Stock during such period in accordance with the provisions hereof and the Prospectus. (g) If, at any time during the period when the Prospectus relating to the Shares is required to be delivered, any event relating to or affecting the Company or the Bank shall occur, as a result of which it is necessary or appropriate, in the opinion of counsel for the Company and the Bank or in the reasonable opinion of the Agent's counsel, to amend or supplement the Registration Statement or Prospectus in order to make the Registration Statement or Prospectus not misleading in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, the Company and the Bank will immediately so inform the Agent and prepare and file, at their own expense, with the Commission and the Agencies and furnish to the Agent a reasonable number of copies of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or Prospectus (in form and substance reasonably satisfactory to the Agent and its counsel after a reasonable time for review) which will amend or supplement the Registration Statement or Prospectus so that as amended or supplemented it will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading. For the purpose of this Agreement, the Company and the Bank each will timely furnish to the Agent such information with respect to itself as the Agent may from time to time reasonably request. (h) The Company and the Bank will take all necessary actions, in cooperating with the Agent, and furnish to whomever the Agent may direct, such information as may be required to qualify or register the Shares for offering and sale by the Company or to exempt such Shares from registration, or to exempt the Company as a broker-dealer and its officers, directors and employees as broker-dealers or agents under the applicable securities or blue sky laws of such jurisdictions in which the Shares are required under the Conversion Regulations to be sold or as the Agent and the Company and the Bank may reasonably agree upon; provided, however, that the Company shall not be obligated to file any general consent to service of process, to qualify to do business in any jurisdiction in which it is not so qualified, or to register its directors or officers as brokers, dealers, salesmen or agents in any jurisdiction. In each jurisdiction where any of the Shares shall have been qualified or registered as above provided, the Company will make and file such statements and reports in each fiscal period as are or may be required by the laws of such jurisdiction. (i) The Bank shall duly establish and maintain the liquidation account for the benefit of Eligible Account Holders and Supplemental Eligible Account Holders in accordance with the requirements of the Conversion Regulations, and such Eligible Account Holders and Supplemental Eligible Account Holders who continue to maintain their savings accounts in the Bank will have an inchoate interest in their pro rata portion of the liquidation account, which shall have a priority superior to that of the holders of the Shares in the event of a complete liquidation of the Bank. (j) The Company and the Bank will not sell or issue, contract to sell or otherwise dispose of, for a period of 180 days after the Closing Date, without the Agent's prior written consent, any Common Stock other than the Shares or other than in connection with any plan or arrangement described in the Prospectus, including existing stock benefit plans. (k) The Company shall register its Common Stock under Section 12(g) of the 1934 Act on or prior to the Closing Date pursuant to the Plan and shall request that such registration be effective prior to or upon completion of the Offering. The Company shall maintain the effectiveness of such registration for not less than three years or such shorter period as may be required by the Agencies. (l) During the period during which the Company's Common Stock is registered under the 1934 Act or for three years from the date hereof, whichever period is greater, the Company will furnish to its shareholders as soon as practicable after the end of each fiscal year an annual report of the Company (including a consolidated balance sheet and statements of consolidated income, shareholders' equity and cash flows of the Company and its subsidiaries as at the end of and for such year, certified by independent public accountants in accordance with Regulation S-X under the 1933 Act and the 1934 Act). (m) During the period of three years from the date hereof, the Company will furnish to the Agent: (i) as soon as practicable after such information is publicly available, a copy of each report of the Company furnished to or filed with the Commission under the 1934 Act or any national securities exchange or system on which any class of securities of the Company is listed or quoted (including, but not limited to, reports on Forms 10-KSB, 10-QSB and 8-K and all proxy statements and annual reports to stockholders), (ii) a copy of each other non-confidential report of the Company mailed to its stockholders or filed with the Commission, the Agencies or any other supervisory or regulatory authority or any national securities exchange or system on which any class of securities of the Company is listed or quoted, each press release and material news items and additional documents and information with respect to the Company or the Bank as the Agent may reasonably request; and (iii) from time to time, such other nonconfidential information concerning the Company or the Bank as the Agent may reasonably request. (n) The Company and the Bank will use the net proceeds from the sale of the Shares in the manner set forth in the Prospectus under the caption "How We Intend to Use the Proceeds." (o) Other than as permitted by the Conversion Regulations, the BHC Act, the 1933 Act, the 1933 Act Regulations, and the laws of any state in which the Shares are registered or qualified for sale or exempt from registration, neither the Company nor the Bank will distribute any prospectus, offering circular or other offering material in connection with the offer and sale of the Shares. (p) The Company will use its best efforts to (i) encourage and assist a market maker to establish and maintain a market for the Shares and (ii) list and maintain quotation of the Shares on the OTC Bulletin Board effective on or prior to the Closing Date. (q) The Bank will maintain appropriate arrangements for depositing all funds received from persons mailing subscriptions for or orders to purchase Shares in the Offering on an interest-bearing basis at the rate described in the Prospectus until the Closing Date and satisfaction of all conditions precedent to the release of the Bank's obligation to refund payments received from persons subscribing for or ordering Shares in the Offering in accordance with the Plan and as described in the Prospectus or until refunds of such funds have been made to the persons entitled thereto or withdrawal authorizations canceled in accordance with the Plan and as described in the Prospectus. The Bank will maintain such records of all funds received to permit the funds of each subscriber to be separately insured by the FDIC (to the maximum extent allowable) and to enable the Bank to make the appropriate refunds of such funds in the event that such refunds are required to be made in accordance with the Plan and as described in the Prospectus. (r) The Company and the Bank will take such actions and furnish such information as are reasonably requested by the Agent in order for the Agent to ensure compliance with the NASD's "Interpretation Relating to Free Riding and Withholding." (s) Neither the Company nor the Bank will amend the Plan without notifying the Agent prior thereto. (t) The Company shall assist the Agent, if necessary, in connection with the allocation of the Shares in the event of an oversubscription and shall provide the Agent with any information necessary to assist the Company in allocating the Shares in such event and such information shall be accurate and reliable in all material respects. (u) Prior to the Closing Date, the Company and the Bank will inform the Agent of any event or circumstances of which it is aware as a result of which the Registration Statement and/or Prospectus, as then amended or supplemented, would contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading. (v) Subsequent to the date the Registration Statement is declared effective by the Commission and prior to the Closing Date, except as otherwise may be indicated or contemplated therein or set forth in an amendment or supplement thereto, neither the Company nor the Bank will have: (i) issued any securities or incurred any liability or obligation, direct or contingent, for borrowed money, except borrowings from the same or similar sources indicated in the Prospectus in the ordinary course of its business, or (ii) entered into any transaction which is material in light of the business and properties of the Company and the Bank, taken as a whole. (w) The Company will promptly take all necessary action to register as a bank holding company under the BHC Act. (x) The facts and representations provided to Jenkens & Xxxxxxxxx by the Bank and the Company and upon which Xxxxxxx & Xxxxxxxxx will base its opinion under Section 8(c)(1) are and will be truthful, accurate and complete.
Appears in 2 contracts
Samples: Agency Agreement (Allied First Bancorp Inc), Agency Agreement (Allied First Bancorp Inc)
Covenants of the Company and the Bank. The Company hereby covenants, and agrees to cause the Bank hereby jointly and severally to covenant with upon capitalization, to the Agent as follows:
(a) a. The Company will not, at any time after the date the Registration Statement is declared effective, (i) file any amendment or supplement to the Registration Statement without providing the Agent and its counsel an opportunity to review such amendment or supplement or (ii) file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably objectobject with reasonable promptness.
(b) Neither the Bank nor the Company will, at any time after the Conversion Application and Holding Company Application are approved by the Agencies, file any amendment or supplement to such Applications without providing the Agent and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably object.
(c) b. The Company and the Bank will use their its best efforts to cause any post-effective amendment to the Registration Statement to be declared effective by the Commission and any post-approval amendment to the Conversion Application and Holding Company an Application to be approved by the Agencies Regulatory Agencies, and will immediately promptly upon receipt of any information concerning the events listed below notify the Agent: Agent (i) when the Registration Statement, as amended, has become effective; (ii) when an Application or the Conversion Application and Holding Company Application, as amended have amended, has been approved by a Regulatory Agency or the AgenciesFederal Reserve; (iii) of the receipt of any comments from the Commission, the Agencies Regulatory Agencies, the Federal Reserve or any other governmental entity agency with respect to the Offering or the transactions contemplated by this Agreement; (iv) of the any request by the Commission, a Regulatory Agency, the Agencies Federal Reserve or any other governmental entity for any amendment or supplement to the Registration Statement, the Conversion Application and the Holding Company Application or for additional information; (v) of the issuance by the Commission, the Agencies a Regulatory Agency, or any other governmental entity agency of any order or other action suspending the Offering or the use of the Registration Statement or the Prospectus Prospectus, or any other filing of the Company or and the Bank under the Conversion Regulations, BHC Act applicable regulations or other applicable law, or the threat of any such action; (vi) of the issuance by the Commission, any Regulatory Agency, the Agencies Federal Reserve or any state authority of any stop order suspending the effectiveness of the Registration Statement or of the initiation or threat of initiation or threat of any proceedings for that purpose; or (vii) of the occurrence of any event mentioned in paragraph (ge) below. The Company and the Bank will make every reasonable effort (i) to prevent the issuance by the Commission, any Regulatory Agency, the Agencies Federal Reserve or any state authority of any such order and, if any such order shall at any time be issued and (ii) issued, to obtain the lifting thereof at the earliest possible time.
(d) c. The Company and the Bank will deliver to the Agent and to its counsel two conformed copies of each of the Registration Statementfollowing documents, with all exhibits except those containing personal confidential information not reasonably required in connection with the Conversion Application Agent’s due diligence: (i) the Applications and the Holding Company Application, as originally filed, filed and of each amendment or supplement thereto, including all exhibitsand (ii) the Registration Statement, as originally filed and each amendment thereto. Further, the Company and the Bank will deliver such additional copies of the foregoing documents to counsel to the Agent as may be required for any NASD and "blue sky" FINRA filings.
(e) . The Company and the Bank will furnish also deliver to the Agent, from time to time during the period when the Prospectus (or any later prospectus related to this offering) is required to be delivered under the 1933 Act or the Securities Exchange Act of 1934 (the "1934 Act"), Agent such number of copies of such Prospectus (the Prospectus, as amended or supplemented) , as the Agent may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the rules and regulations promulgated under the 1934 Act (the "1934 Act Regulations"). The Company authorizes the Agent to use the Prospectus (as amended or supplemented, if amended or supplemented) in any lawful manner contemplated by the Plan in connection with the sale of the Shares by the Agentrequest.
(f) d. The Company and the Bank will comply in all material respects with any and all material terms, conditions, requirements and provisions with respect to the Offering, Offering and the transactions contemplated thereby, thereby imposed by the Commission, the Agencies or the Conversion Regulations or the BHC Actby applicable state law and regulations, and by the 1933 Act, the 1933 Act Regulations, the 1934 Exchange Act and the 1934 Act Regulations rules and regulations of the Commission promulgated under such statutes, to be complied with prior to or subsequent to any Closing Date; and during the Closing Date and period when the Prospectus is required to be delivered, and during such time period the Company and the Bank will complycomply in all material respects, at their own expense, with all material requirements imposed upon them by the Regulatory Agencies, the Federal Reserve, the Commission, the Agencies or the Conversion Regulations, the BHC Act by applicable state law and regulations and by the 1933 Act, the 1933 Act Regulations, the 1934 Exchange Act and the 1934 Act Regulations, including, without limitation, Rule 10b-5 rules and regulations of the Commission promulgated under the 1934 Actsuch statutes, in each case as from time to time in force, so far as necessary to permit the continuance of sales or dealing in the Common Stock Shares during such period in accordance with the provisions hereof and the Prospectus.
(g) If, at any time during the period when the Prospectus relating to the Shares is required to be delivered, e. If any event relating to or affecting the Company or the Bank shall occur, as a result of which it is necessary or appropriatenecessary, in the reasonable opinion of counsel for the Company and or the Bank or in the reasonable opinion of for the Agent's counsel, to amend or supplement the Registration Statement or the Prospectus in order to make the Registration Statement or Prospectus them not misleading in light of the circumstances existing at the time the Prospectus is delivered to a purchaserof its use, the Company and the Bank will immediately so inform the Agent and prepare and filewill, at their own its expense, forthwith prepare, file with the Commission and the Agencies Regulatory Agencies, and furnish to the Agent Agent, a reasonable number of copies of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus (in form and substance reasonably satisfactory to counsel for the Agent and its counsel after a reasonable time for review) which will amend or supplement the Registration Statement or Prospectus so that as amended or supplemented it will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchasertime, not misleading. For the purpose of this Agreementsubsection, the Company and the Bank each will timely furnish to the Agent such information with respect to itself and the Bank as the Agent may from time to time reasonably request.
(h) f. The Company and the Bank will take all necessary actionsendeavor in good faith, in cooperating cooperation with the Agent, and furnish to whomever the Agent may direct, such information as may be required register or to qualify or register the Shares for offering and sale by the Company or to exempt such Shares from registration, or to exempt the Company as a broker-dealer and its officers, directors and employees as broker-dealers or agents under the applicable securities or blue sky laws of such the jurisdictions in which the Shares are required under the Conversion Regulations to Offering will be sold or as the Agent and the Company and the Bank may reasonably agree uponconducted; provided, however, that the Company shall not be obligated to file any general consent to service of process, process or to qualify to do business in any jurisdiction in which it is not so qualified, or to register its directors or officers as brokers, dealers, salesmen or agents in any jurisdiction. In each jurisdiction where any of the Shares shall have been registered or qualified or registered as above provided, the Company will make and file such statements and reports in each fiscal period year as are or may be required by the laws of such jurisdictionjurisdictions.
(i) g. The Company will not, and will not permit the Bank shall duly establish to, and maintain the liquidation account for the benefit of Eligible Account Holders and Supplemental Eligible Account Holders in accordance with the requirements will use reasonable efforts to cause any of the Conversion Regulations, directors and such Eligible Account Holders and Supplemental Eligible Account Holders who continue to maintain their savings accounts in officers of the Company or the Bank will have an inchoate interest in their pro rata portion of the liquidation account, which shall have a priority superior not to that of the holders of the Shares in the event of a complete liquidation of the Bank.
(j) The Company and the Bank will not sell or issue, or contract to sell or otherwise dispose of, for a period of 180 days after the Closing Datedate hereof, without the Agent's ’s prior written consent, which consent shall not be unreasonably withheld, any Common Stock other than the Shares or other than in connection with any plan or arrangement described in the Prospectus, including existing stock benefit plans.
(k) The Company shall register its Common Stock under Section 12(g) of the 1934 Act on or prior to the Closing Date pursuant to the Plan and shall request that such registration be effective prior to or upon completion of the Offering. The Company shall maintain the effectiveness of such registration for not less than three years or such shorter period as may be required by the Agencies.
(l) During the period during which the Company's Common Stock is registered under the 1934 Act or for three years from the date hereof, whichever period is greater, the Company will furnish to its shareholders as soon as practicable after the end of each fiscal year an annual report of the Company (including a consolidated balance sheet and statements of consolidated income, shareholders' equity and cash flows of the Company and its subsidiaries as at the end of and for such year, certified by independent public accountants in accordance with Regulation S-X under the 1933 Act and the 1934 Act).
(m) During h. For the period of three years from the date hereofof this Agreement, the Company will furnish to the Agent: (i) as soon as practicable after such information is publicly available, upon request, a copy of (i) each report of the Company furnished to or filed with the Commission under the 1934 Act or any national securities exchange or system on which any class of securities of the Company is listed or quoted (including, but not limited to, reports on Forms 10-KSB, 10-QSB and 8-K and all proxy statements and annual reports to stockholders), (ii) a copy of each other non-confidential report of the Company mailed to its stockholders or filed with the Commissionholders of Shares, the Agencies or any and (ii) from time to time, such other supervisory or regulatory authority or any national securities exchange or system on which any class of securities of publicly available information concerning the Company is listed or quoted, each press release and material news items and additional documents and information with respect to the Company or the Bank as the Agent may reasonably request; , if such report and (iii) from time to time, such other nonconfidential publicly available information concerning is not promptly available on the Company or the Bank as the Agent may reasonably requestCommission’s XXXXX website.
(n) i. The Company and the Bank will use the net proceeds from the sale of the Shares in all material respects in the manner set forth in the Prospectus under the caption "How We Intend “Use of Proceeds” and will file such reports with the Commission with respect to Use the Proceeds."
(o) Other than sale of the Shares and the application of the proceeds therefrom as permitted may be required by the Conversion Regulations, the BHC Act, Rule 463 under the 1933 Act.
j. Prior to the Closing Date, the Company will inform the Agent of any event or circumstances of which it is aware as a result of which (i) the Registration Statement and the Prospectus, or the Applications or the Holding Company Application as then supplemented or amended, would include 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 then existing, not misleading, or (ii) the information in the Applications would no longer be true, correct and complete in all material respects.
k. The Company will distribute the Prospectus or other offering materials in connection with the Offering only as set forth in the Prospectus, and in accordance with the 1933 Act Regulationsand the Exchange Act and the rules and regulations promulgated under such statutes, and the laws of any state in which the Shares are registered or qualified for sale or exempt from registration, neither the Company nor the Bank will distribute any prospectus, offering circular or other offering material in connection with the offer and sale of the Sharessale.
(p) l. The Company will use furnish to its best efforts shareholders such reports as may be required under Section 15(d) of the Exchange Act.
m. The Company will timely file such reports pursuant to (i) encourage and assist a market maker the Exchange Act as are necessary in order to establish and maintain a market make generally available to its security holders as soon as practicable an earning statement for the Shares purposes of, and (iito provide the benefits contemplated by, the last paragraph of Section 11(a) list and maintain quotation of the Shares on the OTC Bulletin Board effective on or prior to the Closing Date1933 Act.
(q) n. The Bank Company will maintain appropriate arrangements with the Escrow Agent or a successor escrow agent for depositing all funds received from persons mailing subscriptions for or orders to purchase Shares in the Offering on an interest-bearing basis at the rate as described in the Prospectus until the final Closing Date and satisfaction of all conditions precedent to the release of the Bank's Company’s obligation to refund payments received from persons subscribing for or ordering Shares in the Offering in accordance with the Plan and as described in the Prospectus or until refunds of such funds have been made to the persons entitled thereto or withdrawal authorizations canceled in accordance with the Plan and as described in the Prospectus. The Bank will maintain such records of all funds received to permit the funds of each subscriber to be separately insured by the FDIC (to the maximum extent allowable) and to enable the Bank to make the appropriate refunds of such funds in the event that such refunds are required to be made in accordance with the Plan and as described in the Prospectus.
(r) o. The Company and the Bank will take such actions and furnish such information as are reasonably requested by the Agent in order for the Agent to ensure compliance with FINRA Rule 2790 “Restrictions on the NASD's "Interpretation Relating to Free Riding Purchase and WithholdingSale of Initial Equity Public Offerings of Equity Securities."”
(s) Neither the p. The Company nor and the Bank will conduct their businesses in compliance in all material respects with all applicable federal and state laws, rules, regulations, decisions, directives and orders including, all decisions, directives and orders of the Commission, the OCC, the FDIC and the Federal Reserve.
q. The Company will not amend the Plan terms of the Offering without notifying the Agent prior thereto.
(t) r. The Company shall assist will not deliver the Shares and break escrow until the Agent has delivered a certificate to the Escrow Agent, if necessary, in connection with the allocation of the Shares in the event of an oversubscription and shall provide which the Agent with any information necessary to assist the Company in allocating the Shares in such event and such information shall be accurate and reliable in all material respects.
(u) Prior to the Closing Date, the Company and the Bank will inform the Agent do upon satisfaction of any event or circumstances of which it is aware as a result of which the Registration Statement and/or Prospectus, as then amended or supplemented, would contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading.
(v) Subsequent to the date the Registration Statement is declared effective by the Commission and prior to the Closing Date, except as otherwise may be indicated or contemplated therein or each condition set forth in an amendment Appendix 5 hereof, unless such condition is waived in writing by the Agent or supplement thereto, neither the Company nor Closing occurs before the Bank will have: (i) issued any securities or incurred any liability or obligation, direct or contingent, for borrowed money, except borrowings from the same or similar sources indicated in the Prospectus in the ordinary course of its business, or (ii) entered into any transaction which is material in light of the business and properties of the Company and the Bank, taken as a wholeCommencement Date.
(w) s. The Company will promptly take all necessary action to register as a bank holding company under the BHC Act.
(x) The facts and representations provided to Jenkens & Xxxxxxxxx by cause the Bank upon capitalization to duly and validly execute and deliver to the Company Agent an Assumption Agreement in the form of Appendix 3 attached hereto as soon as practicable after the Bank has the legal capacity to enter contracts under applicable federal and upon which Xxxxxxx & Xxxxxxxxx will base its opinion under Section 8(c)(1) are and will be truthful, accurate and completestate law.
Appears in 1 contract
Samples: Agency Agreement (Coastal Carolina Bancshares, Inc.)
Covenants of the Company and the Bank. The Company and the ------------------------------------- Bank hereby jointly and severally covenant with the Agent as follows:
(a) The Company will not, at any time after the date the Registration Statement is declared effective, not file any amendment or supplement to the Registration Statement without providing the Agent and its counsel an opportunity to review such amendment or supplement or supplement, and the Company will not file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably object.
(b) Neither the Bank nor the The Company will, at any time after the Conversion Application and Holding Company Application are approved by the Agencies, will not file any amendment or supplement to such Applications the Holding Company Application without providing the Agent and its counsel an opportunity to review such amendment or supplement or supplement, and the Company will not file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably object.
(c) The Bank will not file any amendment or supplement to the Conversion Application without providing the Agent and its counsel an opportunity to review such amendment or supplement, and the Bank will not file any amendment or supplement to which the Agent or its counsel shall reasonably object.
(d) As of the Closing Date, the Bank shall have all approvals and authority to issue and sell the capital stock of the Bank to the Company and the Company shall have such approvals and orders to issue and sell the Shares as provided for herein and as described in the Prospectus.
(e) The Company and the Bank will use their best efforts to cause any post-effective amendment to the Registration Statement to be declared effective by the Commission SEC and any post-approval amendment to the Conversion Application and or the Holding Company Application to be approved by the Agencies OTS and will immediately upon receipt of any information concerning the events listed below notify the Agent: (i) when the Registration Statement, as amended, has become effective; (ii) when each of the Conversion Application Application, as amended, and the Holding Company Application, as amended have amended, has been approved by the AgenciesOTS; (iii) when the Company or the Bank receives any comments from the CommissionOTS, the Agencies SEC, or any other governmental entity with respect to the Offering Conversion or the transactions contemplated by this Agreement; (iv) of when the request by the CommissionOTS, the Agencies SEC, or any other governmental entity for requests any amendment or supplement to the Registration Statement, the Conversion Application and or the Holding Company Application or for any additional information; (v) of the issuance by the CommissionOTS, the Agencies SEC, or any other governmental entity of any order or other action suspending the Offering or the use of the Registration Statement or the Prospectus or any other filing of the Company or the Bank under the Conversion Regulations, BHC Act or other applicable law, or the threat of any such action; (vi) the issuance by the CommissionOTS, the Agencies SEC, or any authority of any stop order suspending the effectiveness of the Registration Statement or the approval of the Conversion Application or the Holding Company Application or of the initiation or threat of initiation or threat of any proceedings for that purpose; or (vii) of the occurrence of any event mentioned in paragraph (gj) below. below The Company and the Bank will make every reasonable effort (ix) to prevent the issuance by the CommissionOTS, the Agencies SEC or any state other regulatory authority of any such order and, if any such order shall at any time be issued and issued, (iiy) to obtain the lifting thereof at the earliest possible time.
(df) The Company and the Bank will deliver to the Agent and to its counsel two conformed copies of the Registration Statement, the Conversion Application and the Holding Company Application, as originally filed, filed and of each amendment or supplement thereto, including all exhibits. Further, the Company and the Bank will deliver such additional copies of the foregoing documents to counsel to the Agent as may be required for any NASD and "blue sky" filings.
(eg) The Company and the Bank will furnish to the Agent, from time to time during the period when the Prospectus (or any later prospectus related to this offering) is required to be delivered under the 1933 Act or the Securities Exchange Act of 1934 (the "1934 Act"), such number of copies of such Prospectus (as amended or supplemented) as the Agent may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the rules and regulations promulgated under the 1934 Act (the "1934 Act Regulations"). The Company authorizes the Agent to use the Prospectus (as amended or supplemented, if amended or supplemented) in any lawful manner contemplated by the Plan in connection with the sale of the Shares by the Agent.
(fh) The Company and the Bank will comply with any and all material terms, conditions, requirements and provisions with respect to the Offering, Conversion and the transactions contemplated thereby, thereby imposed by the CommissionOTS, the Agencies SEC or the Conversion Regulations or the BHC ActRegulations, and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations to be complied with prior to or subsequent to the Closing Date and when the Prospectus is required to be delivered, and during such time period period, the Company and the Bank will comply, at their own expense, with all material requirements imposed upon them by the CommissionOTS, the Agencies SEC or the Conversion Regulations, the BHC Act and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulationsregulations, including, without limitation, Rule 10b-5 under the 1934 Act, in each case as from time to time in force, so far as necessary to permit the continuance of sales or dealing in the Common Stock Shares during such period in accordance with the provisions hereof and the Prospectus.
(gi) If, at any time during the period when the Prospectus relating to the Shares is required to be delivered, any event relating to or affecting the Company or the Bank shall occur, as a result of which it is necessary or appropriate, in the opinion of counsel for the Company and the Bank or in the reasonable opinion of the Agent's counsel, to amend or supplement the Registration Statement or Prospectus in order to make the Registration Statement or Prospectus not misleading in light of the circumstances existing at the time the Prospectus is delivered to a purchaserdelivered, the Company and the Bank will immediately so inform the Agent and prepare and filewill, at their own expense, prepare and file with the Commission OTS and the Agencies SEC and furnish to the Agent a reasonable number of copies of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or Prospectus (in form and substance reasonably satisfactory to the Agent and its counsel after a reasonable time for review) which will amend or supplement the Registration Statement or Prospectus so that as amended or supplemented it will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading. For the purpose of this Agreement, the Company and the Bank each will timely furnish to the Agent such information with respect to itself as the Agent may from time to time reasonably request.
(hj) The Company and the Bank will take all necessary actions, actions in cooperating with the Agent, Agent and furnish to whomever the Agent may direct, direct such information as may be required to qualify or register the Shares for offering and sale by the Company or to exempt such Shares from registration, or to exempt the Company as a broker-dealer and its officers, directors and employees as broker-dealers or agents under the applicable securities or blue sky laws of such jurisdictions in which the Shares are required under the Conversion Regulations to be sold or as the Agent and Agent, the Company and the Bank may reasonably agree upon; provided, however, that the Company shall not be obligated to file any general consent to service of process, to qualify to do business in any jurisdiction in which it is not so qualified, or to register its directors or officers as brokers, dealers, salesmen or agents in any jurisdiction. In each jurisdiction where any of the Shares shall have been qualified or registered as above provided, the Company will make and file such statements and reports in each fiscal period as are or may be required by the laws of such jurisdiction.
(i) The Bank shall duly establish and maintain the liquidation account for the benefit of Eligible Account Holders and Supplemental Eligible Account Holders in accordance with the requirements of the Conversion Regulations, and such Eligible Account Holders and Supplemental Eligible Account Holders who continue to maintain their savings accounts in the Bank will have an inchoate interest in their pro rata portion of the liquidation account, which shall have a priority superior to that of the holders of the Shares in the event of a complete liquidation of the Bank.
(j) The Company and the Bank will not sell or issue, contract to sell or otherwise dispose of, for a period of 180 days after the Closing Date, without the Agent's prior written consent, any Common Stock other than the Shares or other than in connection with any plan or arrangement described in the Prospectus, including existing stock benefit plans.
(k) The Company shall register its Common Stock under Section 12(g) of the 1934 Act on or prior to the Closing Date pursuant to the Plan and shall request that such registration be effective prior to or upon completion of the Offering. The Company shall maintain the effectiveness of such registration for not less than three years or such shorter period as may be required by the Agencies.
(l) During the period during which the Company's Common Stock is registered under the 1934 Act or for three years from the date hereof, whichever period is greater, the Company will furnish to its shareholders as soon as practicable after the end of each fiscal year an annual report of the Company (including a consolidated balance sheet and statements of consolidated income, shareholders' equity and cash flows of the Company and its subsidiaries as at the end of and for such year, certified by independent public accountants in accordance with Regulation S-X under the 1933 Act and the 1934 Act).
(m) During the period of three years from the date hereof, the Company will furnish to the Agent: (i) as soon as practicable after such information is publicly available, a copy of each report of the Company furnished to or filed with the Commission under the 1934 Act or any national securities exchange or system on which any class of securities of the Company is listed or quoted (including, but not limited to, reports on Forms 10-KSB, 10-QSB and 8-K and all proxy statements and annual reports to stockholders), (ii) a copy of each other non-confidential report of the Company mailed to its stockholders or filed with the Commission, the Agencies or any other supervisory or regulatory authority or any national securities exchange or system on which any class of securities of the Company is listed or quoted, each press release and material news items and additional documents and information with respect to the Company or the Bank as the Agent may reasonably request; and (iii) from time to time, such other nonconfidential information concerning the Company or the Bank as the Agent may reasonably request.
(n) The Company and the Bank will use the net proceeds from the sale of the Shares in the manner set forth in the Prospectus under the caption "How We Intend to Use the Proceeds."
(o) Other than as permitted by the Conversion Regulations, the BHC Act, the 1933 Act, the 1933 Act Regulations, and the laws of any state in which the Shares are registered or qualified for sale or exempt from registration, neither the Company nor the Bank will distribute any prospectus, offering circular or other offering material in connection with the offer and sale of the Shares.
(p) The Company will use its best efforts to (i) encourage and assist a market maker to establish and maintain a market for the Shares and (ii) list and maintain quotation of the Shares on the OTC Bulletin Board effective on or prior to the Closing Date.
(q) The Bank will maintain appropriate arrangements for depositing all funds received from persons mailing subscriptions for or orders to purchase Shares in the Offering on an interest-bearing basis at the rate described in the Prospectus until the Closing Date and satisfaction of all conditions precedent to the release of the Bank's obligation to refund payments received from persons subscribing for or ordering Shares in the Offering in accordance with the Plan and as described in the Prospectus or until refunds of such funds have been made to the persons entitled thereto or withdrawal authorizations canceled in accordance with the Plan and as described in the Prospectus. The Bank will maintain such records of all funds received to permit the funds of each subscriber to be separately insured by the FDIC (to the maximum extent allowable) and to enable the Bank to make the appropriate refunds of such funds in the event that such refunds are required to be made in accordance with the Plan and as described in the Prospectus.
(r) The Company and the Bank will take such actions and furnish such information as are reasonably requested by the Agent in order for the Agent to ensure compliance with the NASD's "Interpretation Relating to Free Riding and Withholding."
(s) Neither the Company nor the Bank will amend the Plan without notifying the Agent prior thereto.
(t) The Company shall assist the Agent, if necessary, in connection with the allocation of the Shares in the event of an oversubscription and shall provide the Agent with any information necessary to assist the Company in allocating the Shares in such event and such information shall be accurate and reliable in all material respects.
(u) Prior to the Closing Date, the Company and the Bank will inform the Agent of any event or circumstances of which it is aware as a result of which the Registration Statement and/or Prospectus, as then amended or supplemented, would contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading.
(v) Subsequent to the date the Registration Statement is declared effective by the Commission and prior to the Closing Date, except as otherwise may be indicated or contemplated therein or set forth in an amendment or supplement thereto, neither the Company nor the Bank will have: (i) issued any securities or incurred any liability or obligation, direct or contingent, for borrowed money, except borrowings from the same or similar sources indicated in the Prospectus in the ordinary course of its business, or (ii) entered into any transaction which is material in light of the business and properties of the Company and the Bank, taken as a whole.
(w) The Company will promptly take all necessary action to register as a bank holding company under the BHC Act.
(x) The facts and representations provided to Jenkens & Xxxxxxxxx by the Bank and the Company and upon which Xxxxxxx & Xxxxxxxxx will base its opinion under Section 8(c)(1) are and will be truthful, accurate and complete.any
Appears in 1 contract
Covenants of the Company and the Bank. The Company hereby covenants, and agrees to cause the Bank hereby jointly and severally to covenant with upon formation, to the Agent as follows:
(a) a. The Company has filed the Registration Statement with the Commission. The Company will not, at any time before or after the date the Registration Statement is declared effective, file any amendment or supplement to the Registration Statement without providing the Agent and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably object.
b. The Bank has filed the Applications with the Regulatory Agencies. The Company has filed, or will file, an application (bthe “Holding Company Application”) Neither with the Board of Governors of the Federal Reserve System (the “Federal Reserve”) to acquire the stock of the Bank nor in accordance with the Company will, at any time after the Conversion Application and Bank Holding Company Application are approved by Act of 1956, as amended, and the Agencies, file any amendment or supplement to such Applications without providing rules and regulations promulgated thereunder (the Agent and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably object“BHCA”).
(c) c. The Company and the Bank will use their its best efforts to cause any post-effective amendment to the Registration Statement to be declared effective by the Commission and any post-approval amendment to the Conversion Application and Holding Company an Application to be approved by the Agencies Regulatory Agencies, and will immediately upon receipt of any information concerning the events listed below notify the Agent: Agent (i) when the Registration Statement, as amended, has become effective; (ii) when an Application or the Conversion Application and Holding Company Application, as amended have amended, has been approved by a Regulatory Agency or the AgenciesFederal Reserve; (iii) of the receipt of any comments from the Commission, the Agencies Regulatory Agencies, the Federal Reserve or any other governmental entity agency with respect to the Offering or the transactions contemplated by this Agreement; (iv) of the any request by the Commission, a Regulatory Agency, the Agencies Federal Reserve or any other governmental entity for any amendment or supplement to the Registration Statement, the Conversion Application and the Holding Company Application or for additional information; (v) of the issuance by the Commission, the Agencies a Regulatory Agency, or any other governmental entity agency of any order or other action suspending the Offering or the use of the Registration Statement Statement, the Preliminary Prospectuses, the Prospectus or the Prospectus Permitted Free Writing Prospectuses, if any, or any other filing of the Company or and the Bank under the Conversion Regulations, BHC Act applicable regulations or other applicable law, or the threat of any such action; (vi) of the issuance by the Commission, any Regulatory Agency, the Agencies Federal Reserve or any state authority of any stop order suspending the effectiveness of the Registration Statement or of the initiation or threat of initiation or threat of any proceedings for that purpose; or (vii) of the occurrence of any event mentioned in paragraph (gf) below. The Company and the Bank will make every reasonable effort (i) to prevent the issuance by the Commission, any Regulatory Agency, the Agencies Federal Reserve or any state authority of any such order and, if any such order shall at any time be issued and (ii) issued, to obtain the lifting thereof at the earliest possible time.
(d) d. The Company and the Bank will deliver to the Agent and to its counsel two conformed copies of each of the Registration Statementfollowing documents, with all exhibits: (i) the Conversion Application Applications and the Holding Company Application, as originally filed, filed and of each amendment or supplement thereto, including all exhibitsand (ii) the Registration Statement, as originally filed and each amendment thereto. Further, the Company and the Bank will deliver such additional copies of the foregoing documents to counsel to the Agent as may be required for any NASD and "blue sky" FINRA filings.
(e) . The Company and the Bank will furnish also deliver to the Agent, from time to time during the period when the Prospectus (or any later prospectus related to this offering) is required to be delivered under the 1933 Act or the Securities Exchange Act of 1934 (the "1934 Act"), Agent such number of copies of such Prospectus (the Prospectus, as amended or supplemented) , as the Agent may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the rules and regulations promulgated under the 1934 Act (the "1934 Act Regulations"). The Company authorizes the Agent to use the Prospectus (as amended or supplemented, if amended or supplemented) in any lawful manner contemplated by the Plan in connection with the sale of the Shares by the Agentrequest.
(f) e. The Company and the Bank will comply in all material respects with any and all material terms, conditions, requirements and provisions with respect to the Offering, Offering and the transactions contemplated thereby, thereby imposed by the Commission, the Agencies or the Conversion Regulations or the BHC Actby applicable state law and regulations, and by the 1933 Act, the 1933 Act Regulations, the 1934 Exchange Act and the 1934 Act Regulations rules and regulations of the Commission promulgated under such statutes, to be complied with prior to or subsequent to the any Closing Date Date; and when the Prospectus is required to be delivered, and during such time period the Company and the Bank will complycomply in all material respects, at their own expense, with all material requirements imposed upon them by the Regulatory Agencies, the Federal Reserve, the Commission, the Agencies or the Conversion Regulations, the BHC Act by applicable state law and regulations and by the 1933 Act, the 1933 Act Regulations, the 1934 Exchange Act and the 1934 Act Regulations, including, without limitation, Rule 10b-5 rules and regulations of the Commission promulgated under the 1934 Actsuch statutes, in each case as from time to time in force, so far as necessary to permit the continuance of sales or dealing in the Common Stock Shares during such period in accordance with the provisions hereof and the Prospectus.
(g) If, at any time during the period when the Prospectus relating to the Shares is required to be delivered, f. If any event relating to or affecting the Company or the Bank shall occur, as a result of which it is necessary or appropriatenecessary, in the reasonable opinion of counsel for the Company and or the Bank or in the reasonable opinion of for the Agent's counsel, to amend or supplement the Registration Statement Statement, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus in order to make the Registration Statement or Prospectus them not misleading in light of the circumstances existing at the time the Prospectus is delivered to a purchaserof its use, the Company and the Bank will immediately so inform the Agent and prepare and filewill, at their own its expense, forthwith prepare, file with the Commission and the Agencies Regulatory Agencies, and furnish to the Agent Agent, a reasonable number of copies of an amendment or amendments of, or a supplement or supplements to, the Registration Statement Statement, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus (in form and substance reasonably satisfactory to counsel for the Agent and its counsel after a reasonable time for review) which will amend or supplement the Registration Statement Statement, Preliminary Prospectus, Prospectus or any Permitted Free Writing Prospectus so that as amended or supplemented it will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchasertime, not misleading. For the purpose of this Agreementsubsection, the Company and the Bank each will timely furnish to the Agent such information with respect to itself and the Bank as the Agent may from time to time reasonably request.
(h) g. The Company and the Bank will take all necessary actionsendeavor in good faith, in cooperating cooperation with the Agent, and furnish to whomever the Agent may direct, such information as may be required register or to qualify or register the Shares for offering and sale by the Company or to exempt such Shares from registration, or to exempt the Company as a broker-dealer and its officers, directors and employees as broker-dealers or agents under the applicable securities or blue sky laws of such the jurisdictions in which the Shares are required under the Conversion Regulations to Offering will be sold or as the Agent and the Company and the Bank may reasonably agree uponconducted; provided, however, that the Company shall not be obligated to file any general consent to service of process, process or to qualify to do business in any jurisdiction in which it is not so qualified, or to register its directors or officers as brokers, dealers, salesmen or agents in any jurisdiction. In each jurisdiction where any of the Shares shall have been registered or qualified or registered as above provided, the Company will make and file such statements and reports in each fiscal period year as are or may be required by the laws of such jurisdictionjurisdictions.
(i) h. The Company and the Bank shall duly establish and maintain the liquidation account for the benefit of Eligible Account Holders and Supplemental Eligible Account Holders in accordance with the requirements each of the Conversion Regulations, directors and such Eligible Account Holders and Supplemental Eligible Account Holders who continue to maintain their savings accounts in the Bank will have an inchoate interest in their pro rata portion officers of the liquidation account, which shall have a priority superior to that of the holders of the Shares in the event of a complete liquidation of the Bank.
(j) The Company and the Bank will not sell or issue, contract to sell or otherwise dispose of, for a period of 180 days after the Closing Datedate hereof, without the Agent's ’s prior written consent, which consent shall not be unreasonably withheld, any Common Stock other than the Shares or other than in connection with any plan or arrangement described in the Prospectus, including existing stock benefit plans.
(k) The Company shall register its Common Stock under Section 12(g) of the 1934 Act on or prior to the Closing Date pursuant to the Plan and shall request that such registration be effective prior to or upon completion of the Offering. The Company shall maintain the effectiveness of such registration for not less than three years or such shorter period as may be required by the Agencies.
(l) During the period during which the Company's Common Stock is registered under the 1934 Act or for three years from the date hereof, whichever period is greater, the Company will furnish to its shareholders as soon as practicable after the end of each fiscal year an annual report of the Company (including a consolidated balance sheet and statements of consolidated income, shareholders' equity and cash flows of the Company and its subsidiaries as at the end of and for such year, certified by independent public accountants in accordance with Regulation S-X under the 1933 Act and the 1934 Act).
(m) During i. For the period of three years from the date hereofof this Agreement, the Company will furnish to the Agent: (i) as soon as practicable after such information is publicly available, upon request, a copy of (i) each report of the Company furnished to or filed with the Commission under the 1934 Act or any national securities exchange or system on which any class of securities of the Company is listed or quoted (including, but not limited to, reports on Forms 10-KSB, 10-QSB and 8-K and all proxy statements and annual reports to stockholders), (ii) a copy of each other non-confidential report of the Company mailed to its stockholders or filed with holders of Shares if such report is not immediately available on the Commission’s XXXXX website, the Agencies or any other supervisory or regulatory authority or any national securities exchange or system on which any class of securities of the Company is listed or quoted, each press release and material news items and additional documents and information with respect to the Company or the Bank as the Agent may reasonably request; and (iiiii) from time to time, such other nonconfidential publicly available information concerning the Company or and the Bank as the Agent may reasonably request.
(n) j. The Company and the Bank will use the net proceeds from the sale of the Shares in the manner set forth in the Prospectus under the caption "How We Intend “Use of Proceeds,” and will file such reports with the Commission with respect to Use the Proceeds."
(o) Other than sale of the Shares and the application of the proceeds therefrom as permitted may be required by the Conversion Regulations, the BHC Act, Rule 463 under the 1933 Act.
k. Prior to the Closing Date, the Company will inform the Agent of any event or circumstances of which it is aware as a result of which (i) the Registration Statement, any Preliminary Prospectus, the Prospectus, any Permitted Free Writing Prospectus, or the Applications and the Holding Company Application as then supplemented or amended, would include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading, or (ii) the information in the Applications would no longer be true, correct and complete in all material respects.
l. The Company will distribute the Prospectus or other offering materials in connection with the Offering only as set forth in the Prospectus, and only in accordance with the 1933 Act Regulationsand the Exchange Act and the rules and regulations promulgated under such statutes, and the laws of any state in which the Shares are registered or qualified for sale or exempt from registration, neither the Company nor the Bank will distribute any prospectus, offering circular or other offering material in connection with the offer and sale of the Sharessale.
(p) m. The Company will use furnish to its best efforts shareholders such reports as may be required under Section 15(d) of the Exchange Act.
n. The Company will timely file such reports pursuant to (i) encourage and assist a market maker the Exchange Act as are necessary in order to establish and maintain a market make generally available to its security holders as soon as practicable an earning statement for the Shares purposes of, and (iito provide the benefits contemplated by, the last paragraph of Section 11(a) list and maintain quotation of the Shares on the OTC Bulletin Board effective on or prior to the Closing Date1933 Act.
(q) o. The Bank Company will maintain appropriate arrangements with the Escrow Agent for depositing all funds received from persons mailing subscriptions for or orders to purchase Shares in the Offering on an interest-bearing basis at the rate as described in the Prospectus until the Closing Date and satisfaction of all conditions precedent to the release of the Bank's Company’s obligation to refund payments received from persons subscribing for or ordering Shares in the Offering in accordance with the Plan and as described in the Prospectus or until refunds of such funds have been made to the persons entitled thereto or withdrawal authorizations canceled in accordance with the Plan and as described in the Prospectus. The Bank will maintain such records of all funds received to permit the funds of each subscriber to be separately insured by the FDIC (to the maximum extent allowable) and to enable the Bank to make the appropriate refunds of such funds in the event that such refunds are required to be made in accordance with the Plan and as described in the Prospectus.
(r) p. The Company and the Bank will take such actions and furnish such information as are reasonably requested by the Agent in order for the Agent to ensure compliance with FINRA Rule 2790 “Restrictions on the NASD's "Interpretation Relating to Free Riding Purchase and WithholdingSale of Initial Equity Public Offerings of Equity Securities."”
(s) Neither the q. The Company nor and the Bank will conduct their businesses in compliance in all material respects with all applicable federal and state laws, rules, regulations, decisions, directives and orders including, all decisions, directives and orders of the Commission, the MOFIS, the FDIC and the Federal Reserve.
r. The Company will not amend the Plan terms of the Offering without notifying the Agent prior thereto.
(t) s. The Company shall assist the Agent, if necessary, in connection with the allocation of will not deliver the Shares in the event of an oversubscription and shall provide the Agent with any information necessary to assist the Company in allocating the Shares in such event and such information shall be accurate and reliable in all material respects.
(u) Prior to the Closing Date, until the Company and the Bank will inform the Agent of any event have satisfied or circumstances of which it is aware as a result of which the Registration Statement and/or Prospectus, as then amended or supplemented, would contain an untrue statement of a material fact or omit caused to state a material fact necessary in order to make the statements therein not misleading.
(v) Subsequent to the date the Registration Statement is declared effective by the Commission and prior to the Closing Date, except as otherwise may be indicated or contemplated therein or satisfied each condition set forth in an amendment or supplement theretoSection 7 hereof, neither unless such condition is waived in writing by the Company nor the Bank will have: (i) issued any securities or incurred any liability or obligation, direct or contingent, for borrowed money, except borrowings from the same or similar sources indicated in the Prospectus in the ordinary course of its business, or (ii) entered into any transaction which is material in light of the business and properties of the Company and the Bank, taken as a wholeAgent.
(w) t. The Company will promptly take all necessary action to register as a bank holding company under the BHC Act.
(x) The facts and representations provided to Jenkens & Xxxxxxxxx by cause the Bank upon formation to duly and validly execute and deliver to the Company Agent an Assumption Agreement in the form of Appendix 3 attached hereto as soon as practicable after the Bank has the legal capacity to enter contracts under applicable federal and upon which Xxxxxxx & Xxxxxxxxx will base its opinion under Section 8(c)(1) are and will be truthful, accurate and completestate law.
Appears in 1 contract
Covenants of the Company and the Bank. The Company and the Bank hereby jointly and severally covenant and agree with the Agent as follows:
(a) The Company will not, at any time after the date the Registration Statement is declared effective, file any amendment or supplement to the Registration Statement without providing the Agent and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or and its counsel shall reasonably object.
(b) Neither If at any time following issuance of an Issuer-Represented Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Represented Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in light of the circumstances prevailing at the subsequent time, not misleading, the Company has notified or will notify promptly the Agent so that any use of such Issuer-Represented Free Writing Prospectus may cease until it is amended or supplemented and the Company has promptly amended or will promptly amend or supplement such Issuer-Represented Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission; provided, however, that this covenant shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Agent expressly for use therein.
(c) The Company and the Bank nor represent and agree that, unless it obtains the prior consent of the Agent, it has not made and will not make any offer relating to the offered Shares that would constitute an “issuer free writing prospectus” as defined in Rule 433 of the 1933 Act Regulations, or that would constitute a “free writing prospectus,” as defined in Rule 405 of the 1933 Act Regulations, required to be filed with the Commission. Any such free writing prospectus consented to by the Company, the Bank and the Agent is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company willand the Bank represent that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the 1933 Act Regulations, and has complied and will comply in all material respects with the requirements of Rule 433 of the 1933 Act Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping. The Company and the Bank need not treat any communication as a free writing prospectus if it is exempt from the definition of prospectus pursuant to clause (a) of Section 2(a)(10) of the 1933 Act without regard to Rule 172 or 173 of the 1933 Act Regulations.
(d) The Bank will not, at any time after the Conversion Application and Holding Company Application are Form AC is approved by the AgenciesWDFI and the FDIC, file any amendment or supplement to such Applications Form AC without providing the Agent and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or and its counsel shall reasonably object.
(ce) The Company will not, at any time after the Holding Company Application is approved by the FRB, file any amendment or supplement to such Holding Company Application without providing the Agent and its counsel an opportunity to review the non-confidential portions of such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent and its counsel shall reasonably object.
(f) The Company and the Bank will use their best efforts to cause any post-effective amendment to the Registration Statement to be declared effective by the Commission and any post-approval effective amendment to the Conversion Application and Form AC or the Holding Company Application to be approved by the Agencies WDFI and the FDIC or the FRB, as applicable, and will immediately upon receipt of any information concerning the events listed below notify the Agent: (i) when the Registration Statement, as amended, has become effective; (ii) when the Conversion Application and Form AC or the Holding Company Application, as amended have amended, has been approved by the AgenciesWDFI and the FDIC, or the FRB, as applicable; (iii) of any comments from the Commission, the Agencies WDFI, the FDIC or the FRB or any other governmental entity with respect to the Offering or the transactions Conversion contemplated by this Agreement; (iv) of the request by the Commission, the Agencies WDFI, the FDIC or the FRB or any other governmental entity for any amendment or supplement to the Registration Statement, the Conversion Application and the Form AC, Holding Company Application or for additional information; (v) of the issuance by the Commission, the Agencies WDFI, the FDIC or the FRB or any other governmental entity of any order or other action suspending the Offering Conversion or the use of the Registration Statement or the Prospectus or any other filing of the Company or the Bank under the Conversion Regulations, BHC Act or other applicable law, or the threat of any such action; (vi) of the issuance by the Commission, the Agencies WDFI, the FDIC or the FRB or any authority of any stop order suspending the effectiveness of the Registration Statement or of the initiation or threat of initiation or threat of any proceedings for that purpose; or (vii) of the occurrence of any event mentioned in paragraph (gh) below. The Company and the Bank will make every reasonable effort (i) to prevent the issuance by the Commission, the Agencies WDFI, the FDIC or the FRB or any other state authority of any such order and, (ii) if any such order shall at any time be issued and (ii) issued, to obtain the lifting thereof at the earliest possible time.
(d) The Company and the Bank will deliver to the Agent and to its counsel two conformed copies of the Registration Statement, the Conversion Application and the Holding Company Application, as originally filed, and of each amendment or supplement thereto, including all exhibits. Further, the Company and the Bank will deliver such additional copies of the foregoing documents to counsel to the Agent as may be required for any NASD and "blue sky" filings.
(e) The Company and the Bank will furnish to the Agent, from time to time during the period when the Prospectus (or any later prospectus related to this offering) is required to be delivered under the 1933 Act or the Securities Exchange Act of 1934 (the "1934 Act"), such number of copies of such Prospectus (as amended or supplemented) as the Agent may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the rules and regulations promulgated under the 1934 Act (the "1934 Act Regulations"). The Company authorizes the Agent to use the Prospectus (as amended or supplemented, if amended or supplemented) in any lawful manner contemplated by the Plan in connection with the sale of the Shares by the Agent.
(f) The Company and the Bank will comply with any and all material terms, conditions, requirements and provisions with respect to the Offering, and the transactions contemplated thereby, imposed by the Commission, the Agencies or the Conversion Regulations or the BHC Act, and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations to be complied with prior to or subsequent to the Closing Date and when the Prospectus is required to be delivered, and during such time period the Company and the Bank will comply, at their own expense, with all material requirements imposed upon them by the Commission, the Agencies or the Conversion Regulations, the BHC Act and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, including, without limitation, Rule 10b-5 under the 1934 Act, in each case as from time to time in force, so far as necessary to permit the continuance of sales or dealing in the Common Stock during such period in accordance with the provisions hereof and the Prospectus.
(g) If, at any time during the period when the Prospectus relating to the Shares is required to be delivered, any event relating to or affecting the Company or the Bank shall occur, as a result of which it is necessary or appropriate, in the opinion of counsel for the Company and the Bank or in the reasonable opinion of the Agent's counsel, to amend or supplement the Registration Statement or Prospectus in order to make the Registration Statement or Prospectus not misleading in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, the Company and the Bank will immediately so inform the Agent and prepare and file, at their own expense, with the Commission and the Agencies and furnish to the Agent a reasonable number of copies of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or Prospectus (in form and substance reasonably satisfactory to the Agent and its counsel after a reasonable time for review) which will amend or supplement the Registration Statement or Prospectus so that as amended or supplemented it will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading. For the purpose of this Agreement, the Company and the Bank each will timely furnish to the Agent such information with respect to itself as the Agent may from time to time reasonably request.
(h) The Company and the Bank will take all necessary actions, in cooperating with the Agent, and furnish to whomever the Agent may direct, such information as may be required to qualify or register the Shares for offering and sale by the Company or to exempt such Shares from registration, or to exempt the Company as a broker-dealer and its officers, directors and employees as broker-dealers or agents under the applicable securities or blue sky laws of such jurisdictions in which the Shares are required under the Conversion Regulations to be sold or as the Agent and the Company and the Bank may reasonably agree upon; provided, however, that the Company shall not be obligated to file any general consent to service of process, to qualify to do business in any jurisdiction in which it is not so qualified, or to register its directors or officers as brokers, dealers, salesmen or agents in any jurisdiction. In each jurisdiction where any of the Shares shall have been qualified or registered as above provided, the Company will make and file such statements and reports in each fiscal period as are or may be required by the laws of such jurisdiction.
(i) The Bank shall duly establish and maintain the liquidation account for the benefit of Eligible Account Holders and Supplemental Eligible Account Holders in accordance with the requirements of the Conversion Regulations, and such Eligible Account Holders and Supplemental Eligible Account Holders who continue to maintain their savings accounts in the Bank will have an inchoate interest in their pro rata portion of the liquidation account, which shall have a priority superior to that of the holders of the Shares in the event of a complete liquidation of the Bank.
(j) The Company and the Bank will not sell or issue, contract to sell or otherwise dispose of, for a period of 180 days after the Closing Date, without the Agent's prior written consent, any Common Stock other than the Shares or other than in connection with any plan or arrangement described in the Prospectus, including existing stock benefit plans.
(k) The Company shall register its Common Stock under Section 12(g) of the 1934 Act on or prior to the Closing Date pursuant to the Plan and shall request that such registration be effective prior to or upon completion of the Offering. The Company shall maintain the effectiveness of such registration for not less than three years or such shorter period as may be required by the Agencies.
(l) During the period during which the Company's Common Stock is registered under the 1934 Act or for three years from the date hereof, whichever period is greater, the Company will furnish to its shareholders as soon as practicable after the end of each fiscal year an annual report of the Company (including a consolidated balance sheet and statements of consolidated income, shareholders' equity and cash flows of the Company and its subsidiaries as at the end of and for such year, certified by independent public accountants in accordance with Regulation S-X under the 1933 Act and the 1934 Act).
(m) During the period of three years from the date hereof, the Company will furnish to the Agent: (i) as soon as practicable after such information is publicly available, a copy of each report of the Company furnished to or filed with the Commission under the 1934 Act or any national securities exchange or system on which any class of securities of the Company is listed or quoted (including, but not limited to, reports on Forms 10-KSB, 10-QSB and 8-K and all proxy statements and annual reports to stockholders), (ii) a copy of each other non-confidential report of the Company mailed to its stockholders or filed with the Commission, the Agencies or any other supervisory or regulatory authority or any national securities exchange or system on which any class of securities of the Company is listed or quoted, each press release and material news items and additional documents and information with respect to the Company or the Bank as the Agent may reasonably request; and (iii) from time to time, such other nonconfidential information concerning the Company or the Bank as the Agent may reasonably request.
(n) The Company and the Bank will use the net proceeds from the sale of the Shares in the manner set forth in the Prospectus under the caption "How We Intend to Use the Proceeds."
(o) Other than as permitted by the Conversion Regulations, the BHC Act, the 1933 Act, the 1933 Act Regulations, and the laws of any state in which the Shares are registered or qualified for sale or exempt from registration, neither the Company nor the Bank will distribute any prospectus, offering circular or other offering material in connection with the offer and sale of the Shares.
(p) The Company will use its best efforts to (i) encourage and assist a market maker to establish and maintain a market for the Shares and (ii) list and maintain quotation of the Shares on the OTC Bulletin Board effective on or prior to the Closing Date.
(q) The Bank will maintain appropriate arrangements for depositing all funds received from persons mailing subscriptions for or orders to purchase Shares in the Offering on an interest-bearing basis at the rate described in the Prospectus until the Closing Date and satisfaction of all conditions precedent to the release of the Bank's obligation to refund payments received from persons subscribing for or ordering Shares in the Offering in accordance with the Plan and as described in the Prospectus or until refunds of such funds have been made to the persons entitled thereto or withdrawal authorizations canceled in accordance with the Plan and as described in the Prospectus. The Bank will maintain such records of all funds received to permit the funds of each subscriber to be separately insured by the FDIC (to the maximum extent allowable) and to enable the Bank to make the appropriate refunds of such funds in the event that such refunds are required to be made in accordance with the Plan and as described in the Prospectus.
(r) The Company and the Bank will take such actions and furnish such information as are reasonably requested by the Agent in order for the Agent to ensure compliance with the NASD's "Interpretation Relating to Free Riding and Withholding."
(s) Neither the Company nor the Bank will amend the Plan without notifying the Agent prior thereto.
(t) The Company shall assist the Agent, if necessary, in connection with the allocation of the Shares in the event of an oversubscription and shall provide the Agent with any information necessary to assist the Company in allocating the Shares in such event and such information shall be accurate and reliable in all material respects.
(u) Prior to the Closing Date, the Company and the Bank will inform the Agent of any event or circumstances of which it is aware as a result of which the Registration Statement and/or Prospectus, as then amended or supplemented, would contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading.
(v) Subsequent to the date the Registration Statement is declared effective by the Commission and prior to the Closing Date, except as otherwise may be indicated or contemplated therein or set forth in an amendment or supplement thereto, neither the Company nor the Bank will have: (i) issued any securities or incurred any liability or obligation, direct or contingent, for borrowed money, except borrowings from the same or similar sources indicated in the Prospectus in the ordinary course of its business, or (ii) entered into any transaction which is material in light of the business and properties of the Company and the Bank, taken as a whole.
(w) The Company will promptly take all necessary action to register as a bank holding company under the BHC Act.
(x) The facts and representations provided to Jenkens & Xxxxxxxxx by the Bank and the Company and upon which Xxxxxxx & Xxxxxxxxx will base its opinion under Section 8(c)(1) are and will be truthful, accurate and complete.
Appears in 1 contract
Covenants of the Company and the Bank. The Company and the Bank hereby jointly and severally covenant with the Agent KBW as follows:
(a) The Company will not, at any time after the date the Registration Statement is declared effective, file any amendment or supplement to the Registration Statement without providing the Agent and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably object.
(b) Neither the The Bank nor the Company willwill not, at any time after the Conversion Application and Holding Company Application are is approved by the AgenciesOTS, file any amendment or supplement to such Applications Conversion Application without providing the Agent and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably object.
(c) The Company will not, at any time before the Holding Company Application is approved by the OTS, file any amendment or supplement to such Holding Company Application without providing the Agent and its counsel an opportunity to review the nonconfidential portions of such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably object.
(d) The Company and the Bank will use their best efforts to cause any post-effective amendment to the Registration Statement to be declared effective by the Commission and any post-approval effective amendment to the Conversion Application and Holding Company Application to be approved by the Agencies OTS and will immediately upon receipt of any information concerning the events listed below notify the Agent: (i) when the Registration Statement, as amended, has become effective; (ii) when the Conversion Application and Holding Company Application, as amended have amended, has been approved by the AgenciesOTS; (iii) any comments from the Commission, the Agencies OTS, or any other governmental entity with respect to the Offering Conversion or the transactions contemplated by this Agreement; (iv) of the request by the Commission, the Agencies OTS, or any other governmental entity for any amendment or supplement to the Registration Statement, the Conversion Application and the Holding Company Application or for additional information; (v) of the issuance by the Commission, the Agencies OTS, or any other governmental entity of any order or other action suspending the Offering or the use of the Registration Statement or the Prospectus or any other filing of the Company or the Bank under the Conversion Regulations, BHC Act or other applicable law, or the threat of any such action; (vi) the issuance by the Commission, the Agencies OTS, or any authority of any stop order suspending the effectiveness of the Registration Statement or of the initiation or threat of initiation or threat of any proceedings for that purpose; or (vii) of the occurrence of any event mentioned in paragraph (gh) below. The Company and the Bank will make every reasonable effort (i) to prevent the issuance by the Commission, the Agencies OTS, or any other state authority of any such order and, if any such order shall at any time be issued and issued, (ii) to obtain the lifting thereof at the earliest possible time.
(de) The Company and the Bank will deliver to the Agent and to its counsel two conformed copies of the Registration Statement, the Conversion Application and the Holding Company Application, as originally filed, filed and of each amendment or supplement thereto, including all exhibits. Further, the Company and the Bank will deliver such additional copies of the foregoing documents to counsel to the Agent as may be required for any NASD and "blue sky" filings.
(ef) The Company and the Bank will furnish to the Agent, from time to time during the period when the Prospectus (or any later prospectus related to this offering) is required to be delivered under the 1933 Act or the Securities Exchange Act of 1934 (the "1934 Act"), such number of copies of such Prospectus (as amended or supplemented) as the Agent may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the rules and regulations promulgated under the 1934 Act (the "1934 Act Regulations"). The Company authorizes the Agent to use the Prospectus (as amended or supplemented, if amended or supplemented) in any lawful manner contemplated by the Plan in connection with the sale of the Shares by the Agent.
(fg) The Company and the Bank will comply with any and all material terms, conditions, requirements and provisions with respect to the Offering, Conversion including the formation and operation of the Foundation and the transactions contemplated thereby, thereby imposed by the Commission, the Agencies OTS or the Conversion Regulations or the BHC ActRegulations, and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations to be complied with prior to or subsequent to the Closing Date and when the Prospectus is required to be delivered, and during such time period the Company and the Bank will comply, at their own expense, with all material requirements imposed upon them by the Commission, the Agencies OTS or the Conversion Regulations, the BHC Act and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, including, without limitation, Rule 10b-5 under the 1934 Act, in each case as from time to time in force, so far as necessary to permit the continuance of sales or dealing in the Common Stock Shares during such period in accordance with the provisions hereof and the Prospectus.
(gh) If, at any time during the period when the Prospectus relating to the Shares is required to be delivered, any event relating to or affecting the Company or the Bank shall occur, as a result of which it is necessary or appropriate, in the opinion of counsel for the Company and the Bank or in the reasonable opinion of the Agent's counsel, to amend or supplement the Registration Statement or Prospectus in order to make the Registration Statement or Prospectus not misleading in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, the Company and the Bank will immediately so inform the Agent and prepare and file, at their own expense, with the Commission Commission, and the Agencies OTS and furnish to the Agent a reasonable number of copies of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or Prospectus (in form and substance reasonably satisfactory to the Agent and its counsel after a reasonable time for review) which will amend or supplement the Registration Statement or Prospectus so that as amended or supplemented it will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading. For the purpose of this Agreement, the Company and the Bank each will timely furnish to the Agent such information with respect to itself as the Agent may from time to time reasonably request.
(hi) The Company and the Bank will take all necessary actions, actions in cooperating with the Agent, Agent and furnish to whomever the Agent may direct, direct such information as may be required to qualify or register the Shares for offering and sale by the Company or to exempt such Shares from registration, or to exempt the Company as a broker-dealer and its officers, directors and employees as broker-dealers or agents under the applicable securities or blue sky laws of such jurisdictions in which the Shares are required under the Conversion Regulations to be sold or as the Agent and the Company and the Bank may reasonably agree upon; provided, however, that the Company shall not be obligated to file any general consent to service of process, to qualify to do business in any jurisdiction in which it is not so qualified, or to register its directors or officers as brokers, dealers, salesmen or agents in any jurisdiction. In each jurisdiction where any of the Shares shall have been qualified or registered as above provided, the Company will make and file such statements and reports in each fiscal period as are or may be required by the laws of such jurisdiction.
(ij) The Bank shall duly establish and maintain the liquidation account for the benefit of Eligible Account Holders and Supplemental Eligible Account Holders will be duly established and maintained in accordance with the requirements of the Conversion RegulationsOTS, and such Eligible Account Holders and Supplemental Eligible Account Holders who continue to maintain their savings accounts in the Bank will have an inchoate interest in their pro rata portion of the liquidation account, which shall have a priority superior to that of the holders of the Common Shares in the event of a complete liquidation of the Bank.
(jk) The Company and the Bank will not sell or issue, contract to sell or otherwise dispose of, for a period of 180 90 days after the Closing Date, without the Agent's prior written consent, any Common Stock of their common shares, other than the Shares and Foundation Shares or other than in connection with any plan or arrangement described in the Prospectus, including existing stock benefit plans.
(kl) The Company shall register its Common Stock Shares under Section 12(g) of the 1934 Act on or prior to concurrently with the Closing Date pursuant to the Plan Offering and shall request that such registration be effective prior to or upon completion of the OfferingConversion. The Company shall maintain the effectiveness of such registration for not less than three years or such shorter period as may be required by the AgenciesOTS.
(lm) During the period during which the Company's Common Stock is Shares are registered under the 1934 Act or for three (3) years from the date hereof, whichever period is greater, the Company will furnish to its shareholders as soon as practicable after the end of each fiscal year an annual report of the Company (including a consolidated balance sheet and statements of consolidated income, shareholders' equity and cash flows of the Company and its subsidiaries as at the end of and for such year, certified by independent public accountants in accordance with Regulation S-X under the 1933 Act and the 1934 Act).
(mn) During the period of three years from the date hereof, the Company will furnish to the Agent: (i) as soon as practicable after such information is publicly available, a copy of each report of the Company furnished to or filed with the Commission under the 1934 Act or any national securities exchange or system on which any class of securities of the Company is listed or quoted (including, but not limited to, reports on Forms 10-KSB, 10-QSB and 8-K and all proxy statements and annual reports to stockholders), (ii) a copy of each other non-confidential report of the Company mailed to its stockholders shareholders or filed with the Commission, the Agencies OTS or any other supervisory or regulatory authority or any national securities exchange or system on which any class of securities of the Company is listed or quoted, each press release and material news items and additional documents and information with respect to the Company or the Bank as the Agent may reasonably request; and (iii) from time to time, such other nonconfidential information concerning the Company or the Bank as the Agent may reasonably request.
(no) The Company and the Bank will use the net proceeds from the sale of the Shares in the manner set forth in the Prospectus under the caption "How We Intend to Use the of Proceeds."
(op) Other than as permitted by the Conversion Regulations, the BHC ActHOLA, the 1933 Act, the 1933 Act Regulations, Regulations and its rules and regulations and the laws of any state in which the Shares are registered or qualified for sale or exempt from registration, neither the Company nor the Bank will distribute any prospectus, offering circular or other offering material in connection with the offer and sale of the Shares.
(pq) The Company will use its best efforts to (i) encourage and assist a market maker to establish and maintain a market for the Shares and (ii) list and maintain quotation of the Shares and the Foundation Shares on the OTC Bulletin Board a national or regional securities exchange or on The Nasdaq Stock Market effective on or prior to the Closing Date.
(qr) The Bank will maintain appropriate arrangements for depositing all funds received from persons mailing subscriptions for or orders to purchase Shares in the Offering on an interest-bearing basis at the rate described in the Prospectus until the Closing Date and satisfaction of all conditions precedent to the release of the Bank's obligation to refund payments received from persons subscribing for or ordering Shares in the Offering in accordance with the Plan and as described in the Prospectus or until refunds of such funds have been made to the persons entitled thereto or withdrawal authorizations canceled in accordance with the Plan and as described in the Prospectus. The Bank will maintain such records of all funds received to permit the funds of each subscriber to be separately insured by the FDIC (to the maximum extent allowable) and to enable the Bank to make the appropriate refunds of such funds in the event that such refunds are required to be made in accordance with the Plan and as described in the Prospectus.
(rs) The Company will promptly take all necessary action to register as a savings and loan holding company under the HOLA.
(t) The Company and the Bank will take such actions and furnish such information as are reasonably requested by the Agent in order for the Agent to ensure compliance with the NASD's "Interpretation Relating to Free Riding and Withholding."
(su) Neither the Company nor the Bank will amend the Plan of Conversion without notifying the Agent prior thereto.
(tv) The Company shall assist the Agent, if necessary, in connection with the allocation of the Shares in the event of an oversubscription and shall provide the Agent with any information necessary to assist the Company in allocating the Shares in such event and such information shall be accurate and reliable in all material respects.
(uw) Prior to the Closing Date, the Company and the Bank will inform the Agent of any event or circumstances of which it is aware as a result of which the Registration Statement and/or Prospectus, as then amended or supplemented, would contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading.
(vx) Subsequent to the date the Registration Statement is declared effective by the Commission and prior to the Closing Date, except as otherwise may be indicated or contemplated therein or set forth in an amendment or supplement thereto, neither the Company nor the Bank will have: (i) issued any securities or incurred any liability or obligation, direct or contingent, for borrowed money, except borrowings from the same or similar sources indicated in the Prospectus in the ordinary course of its business, or (ii) entered into any transaction which is material in light of the business and properties of the Company and the Bank, taken as a whole.
(w) The Company will promptly take all necessary action to register as a bank holding company under the BHC Act.
(xy) The facts and representations provided to Jenkens Stevens & Xxxxxxxxx Lee, P.C. by the Bank and the Company Cxxxxxx and upon which Xxxxxxx Stevens & Xxxxxxxxx Lee, P.C. will base its opinion under Section 8(c)(1xxxxx Secxxxn 7(c)(1) are and will be truthful, accurate and complete.
Appears in 1 contract
Covenants of the Company and the Bank. The Company and the ------------------------------------- Bank hereby jointly and severally covenant with the Agent KBW as follows:
(a) The Company will not, at any time after the date the Registration Statement is declared effective, file any amendment or supplement to the Registration Statement without providing the Agent and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably object.
(b) Neither the The Bank nor the Company willwill not, at any time after the Conversion Application and Holding Company Application are is approved by the AgenciesOTS, file any amendment or supplement to such Applications Conversion Application without providing the Agent and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably object.
(c) The Company will not, at any time before the Holding Company Application is approved by the OTS, file any amendment or supplement to such Holding Company Application without providing the Agent and its counsel an opportunity to review the nonconfidential portions of such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably object.
(d) The Company and the Bank will use their best efforts to cause any post-effective amendment to the Registration Statement to be declared effective by the Commission and any post-approval effective amendment to the Conversion Application and Holding Company Application to be approved by the Agencies OTS and will immediately upon receipt of any information concerning the events listed below notify the Agent: (i) when the Registration Statement, as amended, has become effective; (ii) when the Conversion Application and Holding Company Application, as amended have amended, has been approved by the AgenciesOTS; (iii) any comments from the Commission, the Agencies OTS, or any other governmental entity with respect to the Offering Conversion or the transactions contemplated by this Agreement; (iv) of the request by the Commission, the Agencies OTS, or any other governmental entity for any amendment or supplement to the Registration Statement, the Conversion Application and the Holding Company Application or for additional information; (v) of the issuance by the Commission, the Agencies OTS, or any other governmental entity of any order or other action suspending the Offering or the use of the Registration Statement or the Prospectus or any other filing of the Company or the Bank under the Conversion Regulations, BHC Act or other applicable law, or the threat of any such action; (vi) the issuance by the Commission, the Agencies OTS, or any authority of any stop order suspending the effectiveness of the Registration Statement or of the initiation or threat of initiation or threat of any proceedings for that purpose; or (vii) of the occurrence of any event mentioned in paragraph (gh) below. The Company and the Bank will make every reasonable effort (i) to prevent the issuance by the Commission, the Agencies OTS, or any other state authority of any such order and, if any such order shall at any time be issued and issued, (ii) to obtain the lifting thereof at the earliest possible time.
(de) The Company and the Bank will deliver to the Agent and to its counsel two conformed copies of the Registration Statement, the Conversion Application and the Holding Company Application, as originally filed, filed and of each amendment or supplement thereto, including all exhibits. Further, the Company and the Bank will deliver such additional copies of the foregoing documents to counsel to the Agent as may be required for any NASD and "blue sky" filings.
(ef) The Company and the Bank will furnish to the Agent, from time to time during the period when the Prospectus (or any later prospectus related to this offering) is required to be delivered under the 1933 Act or the Securities Exchange Act of 1934 (the "1934 Act"), such number of copies of such Prospectus (as amended or supplemented) as the Agent may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the rules and regulations promulgated under the 1934 Act (the "1934 Act Regulations"). The Company authorizes the Agent to use the Prospectus (as amended or supplemented, if amended or supplemented) in any lawful manner contemplated by the Plan in connection with the sale of the Shares by the Agent.
(fg) The Company and the Bank will comply with any and all material terms, conditions, requirements and provisions with respect to the Offering, Conversion and the transactions contemplated thereby, thereby imposed by the Commission, the Agencies OTS or the Conversion Regulations or the BHC ActRegulations, and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations to be complied with prior to or subsequent to the Closing Date and when the Prospectus is required to be delivered, and during such time period the Company and the Bank will comply, at their own expense, with all material requirements imposed upon them by the Commission, the Agencies OTS or the Conversion Regulations, the BHC Act and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, including, without limitation, Rule 10b-5 under the 1934 Act, in each case as from time to time in force, so far as necessary to permit the continuance of sales or dealing in the Common Stock Shares during such period in accordance with the provisions hereof and the Prospectus.
(gh) If, at any time during the period when the Prospectus relating to the Shares is required to be delivered, any event relating to or affecting the Company or the Bank shall occur, as a result of which it is necessary or appropriate, in the opinion of counsel for the Company and the Bank or in the reasonable opinion of the Agent's counsel, to amend or supplement the Registration Statement or Prospectus in order to make the Registration Statement or Prospectus not misleading in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, the Company and the Bank will immediately so inform the Agent and prepare and file, at their own expense, with the Commission Commission, and the Agencies OTS and furnish to the Agent a reasonable number of copies of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or Prospectus (in form and substance reasonably satisfactory to the Agent and its counsel after a reasonable time for review) which will amend or supplement the Registration Statement or Prospectus so that as amended or supplemented it will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading. For the purpose of this Agreement, the Company and the Bank each will timely furnish to the Agent such information with respect to itself as the Agent may from time to time reasonably request.
(hi) The Company and the Bank will take all necessary actions, actions in cooperating with the Agent, Agent and furnish to whomever the Agent may direct, direct such information as may be required to qualify or register the Shares for offering and sale by the Company or to exempt such Shares from registration, or to exempt the Company as a broker-dealer and its officers, directors and employees as broker-dealers or agents under the applicable securities or blue sky laws of such jurisdictions in which the Shares are required under the Conversion Regulations to be sold or as the Agent and the Company and the Bank may reasonably agree upon; provided, however, that the Company shall not be obligated to file any general consent to service of process, to qualify to do business in any jurisdiction in which it is not so qualified, or to register its directors or officers as brokers, dealers, salesmen or agents in any jurisdiction. In each jurisdiction where any of the Shares shall have been qualified or registered as above provided, the Company will make and file such statements and reports in each fiscal period as are or may be required by the laws of such jurisdiction.
(ij) The Bank shall duly establish and maintain the liquidation account for the benefit of Eligible Account Holders and Supplemental Eligible Account Holders will be duly established and maintained in accordance with the requirements of the Conversion RegulationsOTS, and such Eligible Account Holders and Supplemental Eligible Account Holders who continue to maintain their savings accounts in the Bank will have an inchoate interest in their pro rata portion of the liquidation account, which shall have a priority superior to that of the holders of the Common Shares in the event of a complete liquidation of the Bank.
(jk) The Company and the Bank will not sell or issue, contract to sell or otherwise dispose of, for a period of 180 90 days after the Closing Date, without the Agent's prior written consent, any Common Stock of their common shares, other than the Shares or other than in connection with any plan or arrangement described in the Prospectus, including existing stock benefit plans.
(kl) The Company shall register its Common Stock Shares under Section 12(g) of the 1934 Act on or prior to concurrently with the Closing Date pursuant to the Plan Offering and shall request that such registration be effective prior to or upon completion of the OfferingConversion. The Company shall maintain the effectiveness of such registration for not less than three years or such shorter period as may be required by the AgenciesOTS.
(lm) During the period during which the Company's Common Stock is Shares are registered under the 1934 Act or for three (3) years from the date hereof, whichever period is greater, the Company will furnish to its shareholders as soon as practicable after the end of each fiscal year an annual report of the Company (including a consolidated balance sheet and statements of consolidated income, shareholders' equity and cash flows of the Company and its subsidiaries as at the end of and for such year, certified by independent public accountants in accordance with Regulation S-X under the 1933 Act and the 1934 Act).
(mn) During the period of three years from the date hereof, the Company will furnish to the Agent: (i) as soon as practicable after such information is publicly available, a copy of each report of the Company furnished to or filed with the Commission under the 1934 Act or any national securities exchange or system on which any class of securities of the Company is listed or quoted (including, but not limited to, reports on Forms 10-KSBK, 10-QSB Q and 8-K and all proxy statements and annual reports to stockholders), (ii) a copy of each other non-confidential report of the Company mailed to its stockholders shareholders or filed with the Commission, the Agencies OTS or any other supervisory or regulatory authority or any national securities exchange or system on which any class of securities of the Company is listed or quoted, each press release and material news items and additional documents and information with respect to the Company or the Bank as the Agent may reasonably request; and (iii) from time to time, such other nonconfidential information concerning the Company or the Bank as the Agent may reasonably request.
(no) The Company and the Bank will use the net proceeds from the sale of the Shares in the manner set forth in the Prospectus under the caption "How We Intend to Use the of Proceeds."
(op) Other than as permitted by the Conversion Regulations, the BHC ActHOLA, the 1933 Act, the 1933 Act Regulations, Regulations and its rules and regulations and the laws of any state in which the Shares are registered or qualified for sale or exempt from registration, neither the Company nor the Bank will distribute any prospectus, offering circular or other offering material in connection with the offer and sale of the Shares.
(pq) The Company will use its best efforts to (i) encourage and assist a market maker to establish and maintain a market for the Shares and (ii) list and maintain quotation of the Shares on the OTC Bulletin Board a national or regional securities exchange or on The Nasdaq Stock Market effective on or prior to the Closing Date.
(qr) The Bank will maintain appropriate arrangements for depositing all funds received from persons mailing subscriptions for or orders to purchase Shares in the Offering on an interest-bearing basis at the rate described in the Prospectus until the Closing Date and satisfaction of all conditions precedent to the release of the Bank's obligation to refund payments received from persons subscribing for or ordering Shares in the Offering in accordance with the Plan and as described in the Prospectus or until refunds of such funds have been made to the persons entitled thereto or withdrawal authorizations canceled in accordance with the Plan and as described in the Prospectus. The Bank will maintain such records of all funds received to permit the funds of each subscriber to be separately insured by the FDIC (to the maximum extent allowable) and to enable the Bank to make the appropriate refunds of such funds in the event that such refunds are required to be made in accordance with the Plan and as described in the Prospectus.
(rs) The Company will promptly take all necessary action to register as a savings and loan holding company under the HOLA.
(t) The Company and the Bank will take such actions and furnish such information as are reasonably requested by the Agent in order for the Agent to ensure compliance with the NASD's "Interpretation Relating to Free Riding and Withholding."
(su) Neither the Company nor the Bank will amend the Plan of Conversion without notifying the Agent prior thereto.
(tv) The Company shall assist the Agent, if necessary, in connection with the allocation of the Shares in the event of an oversubscription and shall provide the Agent with any information necessary to assist the Company in allocating the Shares in such event and such information shall be accurate and reliable in all material respects.
(uw) Prior to the Closing Date, the Company and the Bank will inform the Agent of any event or circumstances of which it is aware as a result of which the Registration Statement and/or Prospectus, as then amended or supplemented, would contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading.
(vx) Subsequent to the date the Registration Statement is declared effective by the Commission and prior to the Closing Date, except as otherwise may be indicated or contemplated therein or set forth in an amendment or supplement thereto, neither the Company nor the Bank will have: (i) issued any securities or incurred any liability or obligation, direct or contingent, for borrowed money, except borrowings from the same or similar sources indicated in the Prospectus in the ordinary course of its business, or (ii) entered into any transaction which is material in light of the business and properties of the Company and the Bank, taken as a whole.
(w) The Company will promptly take all necessary action to register as a bank holding company under the BHC Act.
(xy) The facts and representations provided to Jenkens Xxxxxxx, Xxxxxx & Xxxxxxxxx Xxxxxxxx LLP by the Bank and the Company and upon which Xxxxxxx Xxxxxxx, Xxxxxx & Xxxxxxxxx Xxxxxxxx LLP will base its opinion under Section 8(c)(17(c)(1) are and will be truthful, accurate and complete.
Appears in 1 contract
Covenants of the Company and the Bank. The Company and the Bank hereby jointly and severally covenant and agree with the Agent as follows:
(a) The Company will not, at any time after the date the Registration Statement is declared effective, file any amendment or supplement to the Registration Statement without providing the Agent and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or and its counsel shall reasonably object.
(b) Neither If at any time following issuance of an Issuer-Represented Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Represented Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in light of the circumstances prevailing at the subsequent time, not misleading, the Company has notified or will notify promptly the Agent so that any use of such Issuer-Represented Free Writing Prospectus may cease until it is amended or supplemented and the Company has promptly amended or will promptly amend or supplement such Issuer-Represented Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission; provided, however, that this covenant shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Agent expressly for use therein.
(c) The Company and the Bank nor represent and agree that, unless it obtains the prior consent of the Agent, it has not made and will not make any offer relating to the offered Shares that would constitute an “issuer free writing prospectus” as defined in Rule 433 of the 1933 Act Regulations, or that would constitute a “free writing prospectus,” as defined in Rule 405 of the 1933 Act Regulations, required to be filed with the Commission. Any such free writing prospectus consented to by the Company, the Bank and the Agent is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company willand the Bank represent that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the 1933 Act Regulations, and has complied and will comply in all material respects with the requirements of Rule 433 of the 1933 Act Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping. The Company and the Bank need not treat any communication as a free writing prospectus if it is exempt from the definition of prospectus pursuant to clause (a) of Section 2(a)(10) of the 1933 Act without regard to Rule 172 or 173 of the 1933 Act Regulations.
(d) The Bank will not, at any time after the Conversion Application and Holding Company Application are Form AC is approved by the AgenciesOTS, file any amendment or supplement to such Applications Form AC without providing the Agent and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or and its counsel shall reasonably object.
(ce) The Company will not, at any time after the Holding Company Application is approved by the OTS, file any amendment or supplement to such Holding Company Application without providing the Agent and its counsel an opportunity to review the non-confidential portions of such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent and its counsel shall reasonably object.
(f) The Company and the Bank will use their best efforts to cause any post-effective amendment to the Registration Statement to be declared effective by the Commission and any post-approval effective amendment to the Conversion Application and Form AC or the Holding Company Application to be approved by the Agencies OTS and will immediately upon receipt of any information concerning the events listed below notify the Agent: (i) when the Registration Statement, as amended, has become effective; (ii) when the Conversion Application and Form AC or the Holding Company Application, as amended have amended, has been approved by the AgenciesOTS; (iii) of any comments from the Commission, the Agencies OTS or any other governmental entity with respect to the Offering or the transactions Conversion contemplated by this Agreement; (iv) of the request by the Commission, the Agencies OTS or any other governmental entity for any amendment or supplement to the Registration Statement, the Conversion Application and the Form AC, Holding Company Application or for additional information; (v) of the issuance by the Commission, the Agencies OTS or any other governmental entity of any order or other action suspending the Offering Conversion or the use of the Registration Statement or the Prospectus or any other filing of the Company or the Bank under the Conversion Regulations, BHC Act or other applicable law, or the threat of any such action; (vi) of the issuance by the Commission, the Agencies OTS or any authority of any stop order suspending the effectiveness of the Registration Statement or of the initiation or threat of initiation or threat of any proceedings for that purpose; or (vii) of the occurrence of any event mentioned in paragraph (gh) below. The Company and the Bank will make every reasonable effort (i) to prevent the issuance by the Commission, the Agencies OTS or any other state authority of any such order and, (ii) if any such order shall at any time be issued and (ii) issued, to obtain the lifting thereof at the earliest possible time.
(d) The Company and the Bank will deliver to the Agent and to its counsel two conformed copies of the Registration Statement, the Conversion Application and the Holding Company Application, as originally filed, and of each amendment or supplement thereto, including all exhibits. Further, the Company and the Bank will deliver such additional copies of the foregoing documents to counsel to the Agent as may be required for any NASD and "blue sky" filings.
(e) The Company and the Bank will furnish to the Agent, from time to time during the period when the Prospectus (or any later prospectus related to this offering) is required to be delivered under the 1933 Act or the Securities Exchange Act of 1934 (the "1934 Act"), such number of copies of such Prospectus (as amended or supplemented) as the Agent may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the rules and regulations promulgated under the 1934 Act (the "1934 Act Regulations"). The Company authorizes the Agent to use the Prospectus (as amended or supplemented, if amended or supplemented) in any lawful manner contemplated by the Plan in connection with the sale of the Shares by the Agent.
(f) The Company and the Bank will comply with any and all material terms, conditions, requirements and provisions with respect to the Offering, and the transactions contemplated thereby, imposed by the Commission, the Agencies or the Conversion Regulations or the BHC Act, and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations to be complied with prior to or subsequent to the Closing Date and when the Prospectus is required to be delivered, and during such time period the Company and the Bank will comply, at their own expense, with all material requirements imposed upon them by the Commission, the Agencies or the Conversion Regulations, the BHC Act and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, including, without limitation, Rule 10b-5 under the 1934 Act, in each case as from time to time in force, so far as necessary to permit the continuance of sales or dealing in the Common Stock during such period in accordance with the provisions hereof and the Prospectus.
(g) If, at any time during the period when the Prospectus relating to the Shares is required to be delivered, any event relating to or affecting the Company or the Bank shall occur, as a result of which it is necessary or appropriate, in the opinion of counsel for the Company and the Bank or in the reasonable opinion of the Agent's counsel, to amend or supplement the Registration Statement or Prospectus in order to make the Registration Statement or Prospectus not misleading in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, the Company and the Bank will immediately so inform the Agent and prepare and file, at their own expense, with the Commission and the Agencies and furnish to the Agent a reasonable number of copies of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or Prospectus (in form and substance reasonably satisfactory to the Agent and its counsel after a reasonable time for review) which will amend or supplement the Registration Statement or Prospectus so that as amended or supplemented it will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading. For the purpose of this Agreement, the Company and the Bank each will timely furnish to the Agent such information with respect to itself as the Agent may from time to time reasonably request.
(h) The Company and the Bank will take all necessary actions, in cooperating with the Agent, and furnish to whomever the Agent may direct, such information as may be required to qualify or register the Shares for offering and sale by the Company or to exempt such Shares from registration, or to exempt the Company as a broker-dealer and its officers, directors and employees as broker-dealers or agents under the applicable securities or blue sky laws of such jurisdictions in which the Shares are required under the Conversion Regulations to be sold or as the Agent and the Company and the Bank may reasonably agree upon; provided, however, that the Company shall not be obligated to file any general consent to service of process, to qualify to do business in any jurisdiction in which it is not so qualified, or to register its directors or officers as brokers, dealers, salesmen or agents in any jurisdiction. In each jurisdiction where any of the Shares shall have been qualified or registered as above provided, the Company will make and file such statements and reports in each fiscal period as are or may be required by the laws of such jurisdiction.
(i) The Bank shall duly establish and maintain the liquidation account for the benefit of Eligible Account Holders and Supplemental Eligible Account Holders in accordance with the requirements of the Conversion Regulations, and such Eligible Account Holders and Supplemental Eligible Account Holders who continue to maintain their savings accounts in the Bank will have an inchoate interest in their pro rata portion of the liquidation account, which shall have a priority superior to that of the holders of the Shares in the event of a complete liquidation of the Bank.
(j) The Company and the Bank will not sell or issue, contract to sell or otherwise dispose of, for a period of 180 days after the Closing Date, without the Agent's prior written consent, any Common Stock other than the Shares or other than in connection with any plan or arrangement described in the Prospectus, including existing stock benefit plans.
(k) The Company shall register its Common Stock under Section 12(g) of the 1934 Act on or prior to the Closing Date pursuant to the Plan and shall request that such registration be effective prior to or upon completion of the Offering. The Company shall maintain the effectiveness of such registration for not less than three years or such shorter period as may be required by the Agencies.
(l) During the period during which the Company's Common Stock is registered under the 1934 Act or for three years from the date hereof, whichever period is greater, the Company will furnish to its shareholders as soon as practicable after the end of each fiscal year an annual report of the Company (including a consolidated balance sheet and statements of consolidated income, shareholders' equity and cash flows of the Company and its subsidiaries as at the end of and for such year, certified by independent public accountants in accordance with Regulation S-X under the 1933 Act and the 1934 Act).
(m) During the period of three years from the date hereof, the Company will furnish to the Agent: (i) as soon as practicable after such information is publicly available, a copy of each report of the Company furnished to or filed with the Commission under the 1934 Act or any national securities exchange or system on which any class of securities of the Company is listed or quoted (including, but not limited to, reports on Forms 10-KSB, 10-QSB and 8-K and all proxy statements and annual reports to stockholders), (ii) a copy of each other non-confidential report of the Company mailed to its stockholders or filed with the Commission, the Agencies or any other supervisory or regulatory authority or any national securities exchange or system on which any class of securities of the Company is listed or quoted, each press release and material news items and additional documents and information with respect to the Company or the Bank as the Agent may reasonably request; and (iii) from time to time, such other nonconfidential information concerning the Company or the Bank as the Agent may reasonably request.
(n) The Company and the Bank will use the net proceeds from the sale of the Shares in the manner set forth in the Prospectus under the caption "How We Intend to Use the Proceeds."
(o) Other than as permitted by the Conversion Regulations, the BHC Act, the 1933 Act, the 1933 Act Regulations, and the laws of any state in which the Shares are registered or qualified for sale or exempt from registration, neither the Company nor the Bank will distribute any prospectus, offering circular or other offering material in connection with the offer and sale of the Shares.
(p) The Company will use its best efforts to (i) encourage and assist a market maker to establish and maintain a market for the Shares and (ii) list and maintain quotation of the Shares on the OTC Bulletin Board effective on or prior to the Closing Date.
(q) The Bank will maintain appropriate arrangements for depositing all funds received from persons mailing subscriptions for or orders to purchase Shares in the Offering on an interest-bearing basis at the rate described in the Prospectus until the Closing Date and satisfaction of all conditions precedent to the release of the Bank's obligation to refund payments received from persons subscribing for or ordering Shares in the Offering in accordance with the Plan and as described in the Prospectus or until refunds of such funds have been made to the persons entitled thereto or withdrawal authorizations canceled in accordance with the Plan and as described in the Prospectus. The Bank will maintain such records of all funds received to permit the funds of each subscriber to be separately insured by the FDIC (to the maximum extent allowable) and to enable the Bank to make the appropriate refunds of such funds in the event that such refunds are required to be made in accordance with the Plan and as described in the Prospectus.
(r) The Company and the Bank will take such actions and furnish such information as are reasonably requested by the Agent in order for the Agent to ensure compliance with the NASD's "Interpretation Relating to Free Riding and Withholding."
(s) Neither the Company nor the Bank will amend the Plan without notifying the Agent prior thereto.
(t) The Company shall assist the Agent, if necessary, in connection with the allocation of the Shares in the event of an oversubscription and shall provide the Agent with any information necessary to assist the Company in allocating the Shares in such event and such information shall be accurate and reliable in all material respects.
(u) Prior to the Closing Date, the Company and the Bank will inform the Agent of any event or circumstances of which it is aware as a result of which the Registration Statement and/or Prospectus, as then amended or supplemented, would contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading.
(v) Subsequent to the date the Registration Statement is declared effective by the Commission and prior to the Closing Date, except as otherwise may be indicated or contemplated therein or set forth in an amendment or supplement thereto, neither the Company nor the Bank will have: (i) issued any securities or incurred any liability or obligation, direct or contingent, for borrowed money, except borrowings from the same or similar sources indicated in the Prospectus in the ordinary course of its business, or (ii) entered into any transaction which is material in light of the business and properties of the Company and the Bank, taken as a whole.
(w) The Company will promptly take all necessary action to register as a bank holding company under the BHC Act.
(x) The facts and representations provided to Jenkens & Xxxxxxxxx by the Bank and the Company and upon which Xxxxxxx & Xxxxxxxxx will base its opinion under Section 8(c)(1) are and will be truthful, accurate and complete.
Appears in 1 contract
Samples: Agency Agreement (First Savings Financial Group Inc)
Covenants of the Company and the Bank. The Company and the ------------------------------------- Bank hereby jointly and severally covenant with the Agent Xxxx as follows:
(a) The Company will not, at any time after the date the Registration Statement is declared effective, file any amendment or supplement to the Registration Statement without providing the Agent Xxxx and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent Xxxx or its counsel shall reasonably object.
(b) Neither the The Bank nor the Company willwill not, at any time after the Conversion Application and Holding Company Application are is approved by the AgenciesDivision, file any amendment or supplement to such Applications Conversion Application without providing the Agent Xxxx and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent Xxxx or its counsel shall reasonably object.
(c) The Bank will not, at any time after the FDIC issues its Notice of Objection, file any amendment or supplement to the FDIC Notice without providing Xxxx and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement Xxxx or its counsel shall reasonably object.
(d) The Company will not, at any time before the Holding Company Application is approved by the FRB, file any amendment or supplement to such Holding Company Application without providing Xxxx and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement Xxxx or its counsel shall reasonably object.
(e) The Company and the Bank will use their best efforts to cause any post-post- effective amendment to the Registration Statement to be declared effective by the Commission and any post-approval effective amendment to the Conversion Application and Holding Company Application to be approved by the Agencies Division and will immediately upon receipt of any information concerning the events listed below notify the AgentXxxx: (i) when the Registration Statement, as amended, has become effective; (ii) when the Conversion Application and Application, as amended, has been approved by the Division; (iii) when the Holding Company Application, as amended have amended, has been approved by the AgenciesFRB; (iiiiv) when the Notice of Non-Objection, as amended, has been received from the FDIC; (v) of any comments from the Commission, the Agencies Division, the FRB, the FDIC or any other governmental entity with respect to the Offering Conversion or the transactions contemplated by this Agreement; (ivvi) of the request by the Commission, the Agencies Division, the FRB, or the FDIC or any other governmental entity for any amendment or supplement to the Registration Statement, the Conversion Application and Application, the FDIC Notice or the Holding Company Application or for additional information; (vvii) of the issuance by the Commission, the Agencies Division, the FRB, the FDIC or any other governmental entity of any order or other action suspending the Offering or the use of the Registration Statement or the Prospectus or any other filing of the Company or the Bank under the Conversion Regulations, BHC Act or other applicable law, or the threat of any such action; (viviii) the issuance by the Commission, the Agencies Division, the FRB, the FDIC or any state authority of any stop order suspending the effectiveness of the Registration Statement or the approval of the Conversion Application or Holding Company Application, or of the initiation or threat of initiation or threat of any proceedings for that any such purpose; or (viiix) of the occurrence of any event mentioned in paragraph (gi) below. The Company and the Bank will make every reasonable effort (i) to prevent the issuance by the Commission, the Agencies Division, the FRB, the FDIC or any state authority of any such order and, if any such order shall at any time be issued and issued, (ii) to obtain the lifting thereof at the earliest possible time.
(df) The Company and the Bank will deliver to the Agent Xxxx and to its counsel two conformed copies of the Registration Statement, the Conversion Application Application, the FDIC Notice and the Holding Company Application, as originally filed, filed and of each amendment or supplement thereto, including all exhibits. Further, the Company and the Bank will deliver such additional copies of the foregoing documents to counsel to the Agent Xxxx as may be required for any NASD and "blue sky" filings.
(eg) The Company and the Bank will furnish to the AgentXxxx, from time to time during the period when the Prospectus (or any later prospectus related to this offering) is required to be delivered under the 1933 Act or the Securities Exchange Act of 1934 1934, (the "1934 Act"), such number of copies of such Prospectus (as amended or supplemented) as the Agent Xxxx may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the rules and regulations promulgated under the 1934 Act (the "1934 Act Regulations"). The Company authorizes the Agent Xxxx to use the Prospectus (as amended or supplemented, if amended or supplemented) in any lawful manner contemplated by the Plan in connection with the sale of the Shares by the AgentXxxx.
(fh) The Company and the Bank will comply with any and all material terms, conditions, requirements and provisions with respect to the Offering, and the transactions contemplated thereby, Conversion imposed by the Commission, the Agencies Division, the FRB, the FDIC, the Conversion Regulations, the RCW or the Conversion Regulations or the BHC ActBHCA, and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations to be complied with prior to or subsequent to the Closing Date and when the Prospectus is required to be delivered, and during such time period the Company and the Bank will comply, at their own expense, with all material requirements imposed upon them by the Commission, the Agencies or Division, the FRB, the FDIC, the Conversion Regulations, the BHC Act RCW or the BHCA, and by the 1933 1993 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, including, without limitation, Rule 10b-5 under the 1934 Act, in each case as from time to time in force, so far as necessary to permit the continuance of sales or dealing in the shares of Common Stock during such period in accordance with the provisions hereof and the Prospectus.
(gi) If, at any time during the period when the Prospectus relating to the Shares is required to be delivered, any event relating to or affecting the Company Company, the Bank or the Bank Subsidiary shall occur, as a result of which it is necessary or appropriate, in the opinion of counsel for the Company and the Bank or in the reasonable opinion of the Agent's counsel, to amend or supplement the Registration Statement or Prospectus in order to make the Registration Statement or Prospectus not misleading in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, the Company and the Bank will immediately so inform the Agent and prepare and filewill, at their own expense, prepare and file with the Commission Commission, the Division, the FRB and the Agencies FDIC and furnish to the Agent Xxxx a reasonable number of copies of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or and Prospectus (in form and substance reasonably satisfactory to the Agent Xxxx and its counsel after a reasonable time for review) which will amend or supplement the Registration Statement or and Prospectus so that as amended or supplemented it will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading. For the purpose of this Agreement, the Company and the Bank each will timely furnish to the Agent Xxxx such information with respect to itself as the Agent Xxxx may from time to time reasonably request.
(hj) At the Closing Date referred to in Section 2, the Plan will have been adopted by the Board of Directors of the Company and the Board of Trustees of the Bank and the offer and sale of the Shares will have been conducted in all material respects in accordance with the Plan, the Conversion Regulations, the RCW, the BHCA and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company or the Bank by the Commission, Division, the FRB, the FDIC or any other regulatory authority and in the manner described in the Prospectus.
(k) Upon completion of the sale by the Company of the Shares contemplated by the Prospectus, (i) the Bank will be converted pursuant to the Plan to a Washington state chartered stock savings bank, (ii) all of the authorized and outstanding capital stock of the Bank will be owned by the Company, and (iii) the Company will have no direct subsidiaries other than the Bank. The Conversion will have been effected in all material respects in accordance with all applicable statutes, regulations, decisions and orders; and, except with respect to the filing of certain post-sale, post-Conversion reports, and documents in compliance with the 1933 Act Regulations, and all terms, conditions, requirements and provisions with respect to the Conversion (except those that are conditions subsequent) imposed by the Commission, the Division, the FRB and the FDIC, if any, will have been complied with by the Company and the Bank in all material respects or appropriate waivers will have been obtained and all material notice and waiting periods will have been satisfied, waived or elapsed.
(l) The Company and the Bank will take all necessary actions, in cooperating cooperation with the AgentXxxx, and furnish to whomever the Agent Xxxx may direct, such information as may be required to qualify or register the Shares for offering and sale by the Company or to exempt such Shares from registration, or to exempt the Company as a broker-dealer and its officers, directors and employees as broker-dealers or agents under the applicable securities or blue sky laws of such jurisdictions in which the Shares are required under the Conversion Regulations to be offered and sold or as the Agent Xxxx and the Company and the Bank may reasonably agree upon; provided, however, that the Company shall not be obligated to file any general consent to service of process, process or to qualify to do business in any jurisdiction in which it is not so qualified, or to register its directors or officers as brokers, dealers, salesmen or agents in any jurisdiction. In each jurisdiction where any of the Shares shall have been qualified or registered as above provided, the Company will make and file such statements and reports in each fiscal period as are or may be required by the laws of such jurisdiction.
(im) The Bank shall duly establish and maintain the liquidation account for the benefit of Eligible Account Holders and Supplemental Eligible Account Holders will be duly established and maintained in accordance with the requirements of the Conversion RegulationsDivision, and such Eligible Account Holders and Supplemental Eligible Account Holders who continue to maintain their savings accounts in the Bank will have an inchoate interest in their pro rata portion of the liquidation account, account which shall have a priority superior to that of the holders of the Shares shares of Common Stock in the event of a complete liquidation of the Bank.
(jn) The Company and the Bank will not sell or issue, contract to sell or otherwise dispose of, for a period of 180 days after the Closing Date, without the Agent's Xxxx'x prior written consent, any shares of Common Stock other than the Shares or other than in connection with any plan or arrangement described in the Prospectus, including existing stock benefit plans.
(ko) The Company shall register its Common Stock under Section 12(g) of the 1934 Act on or prior to concurrent with the Closing Date Offering pursuant to the Plan and shall request that such registration be effective prior to or upon completion of the OfferingConversion. The Company shall maintain the effectiveness of such registration for not less than three (3) years or such shorter period as may be required by the AgenciesDivision.
(lp) During the period during which the Company's Common Stock is registered under the 1934 Act or for three years from the date hereof, whichever period is greater, the Company will furnish to its shareholders stockholders as soon as practicable after the end of each fiscal year an annual report of the Company (including a consolidated balance sheet and statements of consolidated income, shareholdersstockholders' equity and cash flows of the Company and its subsidiaries as at the end of and for such year, certified by independent public accountants in accordance with Regulation S-X under the 1933 Act and the 1934 Act).
(mq) During the period of three years from the date hereof, the Company will furnish to the AgentXxxx: (i) as soon as practicable after such information is publicly available, a copy of each report of the Company furnished to or filed with the Commission under the 1934 Act or any national securities exchange or system on which any class of securities of the Company is listed or quoted (including, but not limited to, reports on Forms 10-KSBK, 10-QSB Q and 8-K and all proxy statements and annual reports to stockholders), (ii) a copy of each other non-confidential report of the Company mailed to its stockholders or filed with the Commission, the Agencies Division, or the FDIC or any other supervisory or regulatory authority or any national securities exchange or system on which any class of securities of the Company is listed or quoted, each press release and material news items and additional documents and information with respect to the Company or the Bank as the Agent Xxxx may reasonably request; and (iii) from time to time, such other nonconfidential information concerning the Company or the Bank as the Agent Xxxx may reasonably request.
(nr) The Company and the Bank will use the net proceeds from the sale of the Shares in the manner set forth in the Prospectus under the caption "How We Intend to Use the of Proceeds."
(os) Other than as permitted by the Conversion Regulations, the BHC ActRCW, the BHCA, the 1933 Act, the 1933 Act Regulations, and the laws of any state in which the Shares are registered or qualified for sale or exempt from registration, neither the Company nor the Bank will distribute any prospectus, offering circular prospectus or other offering material in connection with the offer and sale of the Shares.
(pt) The Company will use its best efforts to (i) encourage and assist a three market maker makers to establish and maintain a market for the Shares and (ii) list and maintain quotation of the Shares on a national or regional securities exchange or on the OTC Bulletin Board Nasdaq National Market of the Nasdaq Stock Market effective on or prior to the Closing Date.
(qu) The Bank will maintain appropriate arrangements for depositing all funds received from persons mailing subscriptions for or orders to purchase Shares in the Offering on an interest-interest bearing basis at the rate described in the Prospectus until the Closing Date and satisfaction of all conditions precedent to the release of the Bank's obligation to refund payments received from persons subscribing for or ordering Shares in the Offering in accordance with the Plan and as described in the Prospectus or until refunds of such funds have been made to the persons entitled thereto or withdrawal authorizations canceled cancelled in accordance with the Plan and as described in the Prospectus. The Bank will maintain such records of all funds received to permit the funds of each subscriber to be separately insured by the FDIC (to the maximum extent allowable) and to enable the Bank to make the appropriate refunds of such funds in the event that such refunds are required to be made in accordance with the Plan and as described in the Prospectus.
(rv) Prior to the Closing Date, the Holding Company Application shall have been approved by the FRB. The Company will promptly take all necessary action to register as a savings and loan holding company under the BHCA within 90 days of the Closing Date.
(w) The Company and the Bank will take such actions and furnish such information as are reasonably requested by the Agent Xxxx in order for the Agent Xxxx to ensure compliance with the NASD's "Interpretation Relating to Free Riding and Withholding."
(sx) Neither the Company nor the The Bank will not amend the Plan of Conversion without notifying the Agent Xxxx prior thereto.
(t) The Company shall assist the Agent, if necessary, in connection with the allocation of the Shares in the event of an oversubscription and shall provide the Agent with any information necessary to assist the Company in allocating the Shares in such event and such information shall be accurate and reliable in all material respects.
(u) Prior to the Closing Date, the Company and the Bank will inform the Agent of any event or circumstances of which it is aware as a result of which the Registration Statement and/or Prospectus, as then amended or supplemented, would contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading.
(v) Subsequent to the date the Registration Statement is declared effective by the Commission and prior to the Closing Date, except as otherwise may be indicated or contemplated therein or set forth in an amendment or supplement thereto, neither the Company nor the Bank will have: (i) issued any securities or incurred any liability or obligation, direct or contingent, for borrowed money, except borrowings from the same or similar sources indicated in the Prospectus in the ordinary course of its business, or (ii) entered into any transaction which is material in light of the business and properties of the Company and the Bank, taken as a whole.
(w) The Company will promptly take all necessary action to register as a bank holding company under the BHC Act.
(x) The facts and representations provided to Jenkens & Xxxxxxxxx by the Bank and the Company and upon which Xxxxxxx & Xxxxxxxxx will base its opinion under Section 8(c)(1) are and will be truthful, accurate and complete.
Appears in 1 contract
Covenants of the Company and the Bank. The Company and the Bank hereby jointly and severally covenant with the Agent Xxxx as follows:
(a) The Company will not, at any time after the date the Registration Statement is declared effective, file any amendment or supplement to the Registration Statement without providing the Agent Xxxx and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent Xxxx or its counsel shall reasonably object.
(b) Neither the The Bank nor the Company willwill not, at any time after the Conversion Application and Holding Company Application are is approved by the AgenciesDepartment of Financial Institutions, file any amendment or supplement to such Applications Conversion Application without providing the Agent Xxxx and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent Xxxx or its counsel shall reasonably object.
(c) The Bank will not at any time after the non-objection letter is received from the FDIC, file any amendment or supplement with the FDIC without providing Xxxx and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement which amendment or supplement Xxxx or its counsel shall reasonably object.
(d) The Company will not, at any time before the Holding Company Application is approved by the FRB, file any amendment or supplement to such Holding Company Application without providing Xxxx and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement Xxxx or its counsel shall reasonably object. The Company and the Bank will not consummate the Conversion prior to the approval of the Holding Company Application by the FRB.
(e) The Company and the Bank will use their best efforts to cause any post-effective amendment to the Registration Statement to be declared effective by the Commission and any post-approval effective amendment to the Conversion Application and Holding Company Application to be approved by the Agencies Department of Financial Securities and will immediately upon receipt of any information concerning the events listed below notify the AgentXxxx: (i) when the Registration Statement, as amended, has become effective; (ii) when the Conversion Application and Application, as amended, has been approved by the Department of Financial Securities; (iii) when the Holding Company Application, as amended have amended, has been approved by the AgenciesFRB; (iiiiv) the receipt of the non-objection letter from the FDIC; (v) of any comments comments, written or oral, and other correspondence from the Commission, the Agencies Department of Financial Securities, FRB, FDIC or any other governmental entity with respect to the Offering Conversion or the transactions contemplated by this Agreement; (ivvi) of the request by the Commission, the Agencies Department of Financial Securities, FRB or any other governmental entity for any amendment or supplement to the Registration Statement, the Conversion Application and or the Holding Company Application or for additional information; (vvii) of the issuance by the Commission, the Agencies Department of Financial Securities, FRB, FDIC or any other governmental entity of any order or other action suspending the Offering or the use of the Registration Statement or the Prospectus or any other filing of the Company or the Bank under the Conversion Regulations, BHC Act or other applicable law, or the threat of any such action; (viviii) the issuance by the Commission, the Agencies Department of Financial Securities, FRB, FDIC or any state authority of any stop order suspending the effectiveness of the Registration Statement or the approval of the Conversion Application or Holding Company Application, or of the initiation or threat of initiation or threat of any proceedings for that any such purpose; or (viiix) of the occurrence of any event mentioned in paragraph (gh) below. The Company and the Bank will make every reasonable effort (ia) to prevent the issuance by the Commission, the Agencies Department of Financial Securities, FRB, FDIC or any state authority of any such order and, if any such order shall at any time be issued and issued, (iib) to obtain the lifting thereof at the earliest possible time.
(df) The Company and the Bank will deliver to the Agent Xxxx and to its counsel two manually executed and two conformed copies of the Registration Statement, the Conversion Application and the Holding Company Application, as originally filed, filed and of each amendment or supplement thereto, including all exhibits. Further, the Company and the Bank will deliver such additional copies of the foregoing documents to counsel to the Agent Xxxx as may be required for any NASD and "blue sky" filings.
(eg) The Company and the Bank will furnish to the AgentXxxx, from time to time during the period when the Prospectus (or any later prospectus related to this offering) is required to be delivered under the 1933 Act or the Securities Exchange Act of 1934 1934, (the "1934 Act"), such number of copies of such Prospectus (as amended or supplemented) as the Agent Xxxx may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the rules and regulations promulgated under the 1934 Act (the "1934 Act Regulations"). The Company authorizes the Agent Xxxx to use the Prospectus (as amended or supplemented, if amended or supplemented) in any lawful manner contemplated by the Plan in connection with the sale of the Shares by the AgentXxxx.
(fh) The Company and the Bank will comply with any and all material terms, conditions, requirements and provisions with respect to the Offering, and the transactions contemplated thereby, Conversion imposed by the Commission, the Agencies or Department of Financial Securities, FDIC, FRB, the Conversion Regulations or the BHC ActRegulations, and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations to be complied with prior to or subsequent to the Closing Date and when the Prospectus is required to be delivered, and during such time period the Company and the Bank will comply, at their own expense, with all material requirements imposed upon them by the Commission, the Agencies or the Conversion Regulations, the BHC Act and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, including, without limitation, Rule 10b-5 under the 1934 Act, in each case as from time to time in force, so far as necessary to permit the continuance of sales or dealing in the Common Stock during such period in accordance with the provisions hereof and the ProspectusDate.
(gi) If, at any time during the period when the Prospectus relating to the Shares is required to be delivered, any event relating to or affecting the Company or the Bank shall occur, as a result of which it is necessary or appropriate, in the opinion of counsel for the Company and the Bank or in the reasonable opinion of the Agent's counsel, to amend or supplement the Registration Statement or Prospectus in order to make the Registration Statement or Prospectus not misleading in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, the Company and the Bank will immediately so inform the Agent and prepare and filewill, at their own expense, prepare and file with the Commission and Commission, the Agencies Department of Financial Institutions, FDIC, FRB and furnish to the Agent Xxxx a reasonable number of copies of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or and Prospectus (in form and substance reasonably satisfactory to the Agent Xxxx and its counsel after a reasonable time for review) which will amend or supplement the Registration Statement or and Prospectus so that as amended or supplemented it will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading. The Company and the Bank will notify Xxxx of the reason for any amendment and have the consent of Xxxx prior to filing any such amendment. For the purpose of this Agreement, the Company and the Bank each will timely furnish to the Agent Xxxx such information with respect to itself as the Agent Xxxx may from time to time reasonably request.
(h) The Company and the Bank will take all necessary actions, in cooperating with the Agent, and furnish to whomever the Agent may direct, such information as may be required to qualify or register the Shares for offering and sale by the Company or to exempt such Shares from registration, or to exempt the Company as a broker-dealer and its officers, directors and employees as broker-dealers or agents under the applicable securities or blue sky laws of such jurisdictions in which the Shares are required under the Conversion Regulations to be sold or as the Agent and the Company and the Bank may reasonably agree upon; provided, however, that the Company shall not be obligated to file any general consent to service of process, to qualify to do business in any jurisdiction in which it is not so qualified, or to register its directors or officers as brokers, dealers, salesmen or agents in any jurisdiction. In each jurisdiction where any of the Shares shall have been qualified or registered as above provided, the Company will make and file such statements and reports in each fiscal period as are or may be required by the laws of such jurisdiction.
(i) The Bank shall duly establish and maintain the liquidation account for the benefit of Eligible Account Holders and Supplemental Eligible Account Holders in accordance with the requirements of the Conversion Regulations, and such Eligible Account Holders and Supplemental Eligible Account Holders who continue to maintain their savings accounts in the Bank will have an inchoate interest in their pro rata portion of the liquidation account, which shall have a priority superior to that of the holders of the Shares in the event of a complete liquidation of the Bank.
(j) The Company and the Bank will not sell or issue, contract to sell or otherwise dispose of, for a period of 180 days after the Closing Date, without the Agent's prior written consent, any Common Stock other than the Shares or other than in connection with any plan or arrangement described in the Prospectus, including existing stock benefit plans.
(k) The Company shall register its Common Stock under Section 12(g) of the 1934 Act on or prior to the Closing Date pursuant to the Plan and shall request that such registration be effective prior to or upon completion of the Offering. The Company shall maintain the effectiveness of such registration for not less than three years or such shorter period as may be required by the Agencies.
(l) During the period during which the Company's Common Stock is registered under the 1934 Act or for three years from the date hereof, whichever period is greater, the Company will furnish to its shareholders as soon as practicable after the end of each fiscal year an annual report of the Company (including a consolidated balance sheet and statements of consolidated income, shareholders' equity and cash flows of the Company and its subsidiaries as at the end of and for such year, certified by independent public accountants in accordance with Regulation S-X under the 1933 Act and the 1934 Act).
(m) During the period of three years from the date hereof, the Company will furnish to the Agent: (i) as soon as practicable after such information is publicly available, a copy of each report of the Company furnished to or filed with the Commission under the 1934 Act or any national securities exchange or system on which any class of securities of the Company is listed or quoted (including, but not limited to, reports on Forms 10-KSB, 10-QSB and 8-K and all proxy statements and annual reports to stockholders), (ii) a copy of each other non-confidential report of the Company mailed to its stockholders or filed with the Commission, the Agencies or any other supervisory or regulatory authority or any national securities exchange or system on which any class of securities of the Company is listed or quoted, each press release and material news items and additional documents and information with respect to the Company or the Bank as the Agent may reasonably request; and (iii) from time to time, such other nonconfidential information concerning the Company or the Bank as the Agent may reasonably request.
(n) The Company and the Bank will use the net proceeds from the sale of the Shares in the manner set forth in the Prospectus under the caption "How We Intend to Use the Proceeds."
(o) Other than as permitted by the Conversion Regulations, the BHC Act, the 1933 Act, the 1933 Act Regulations, and the laws of any state in which the Shares are registered or qualified for sale or exempt from registration, neither the Company nor the Bank will distribute any prospectus, offering circular or other offering material in connection with the offer and sale of the Shares.
(p) The Company will use its best efforts to (i) encourage and assist a market maker to establish and maintain a market for the Shares and (ii) list and maintain quotation of the Shares on the OTC Bulletin Board effective on or prior to the Closing Date.
(q) The Bank will maintain appropriate arrangements for depositing all funds received from persons mailing subscriptions for or orders to purchase Shares in the Offering on an interest-bearing basis at the rate described in the Prospectus until the Closing Date and satisfaction of all conditions precedent to the release of the Bank's obligation to refund payments received from persons subscribing for or ordering Shares in the Offering in accordance with the Plan and as described in the Prospectus or until refunds of such funds have been made to the persons entitled thereto or withdrawal authorizations canceled in accordance with the Plan and as described in the Prospectus. The Bank will maintain such records of all funds received to permit the funds of each subscriber to be separately insured by the FDIC (to the maximum extent allowable) and to enable the Bank to make the appropriate refunds of such funds in the event that such refunds are required to be made in accordance with the Plan and as described in the Prospectus.
(r) The Company and the Bank will take such actions and furnish such information as are reasonably requested by the Agent in order for the Agent to ensure compliance with the NASD's "Interpretation Relating to Free Riding and Withholding."
(s) Neither the Company nor the Bank will amend the Plan without notifying the Agent prior thereto.
(t) The Company shall assist the Agent, if necessary, in connection with the allocation of the Shares in the event of an oversubscription and shall provide the Agent with any information necessary to assist the Company in allocating the Shares in such event and such information shall be accurate and reliable in all material respects.
(u) Prior to the Closing Date, the Company and the Bank will inform the Agent of any event or circumstances of which it is aware as a result of which the Registration Statement and/or Prospectus, as then amended or supplemented, would contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading.
(v) Subsequent to the date the Registration Statement is declared effective by the Commission and prior to the Closing Date, except as otherwise may be indicated or contemplated therein or set forth in an amendment or supplement thereto, neither the Company nor the Bank will have: (i) issued any securities or incurred any liability or obligation, direct or contingent, for borrowed money, except borrowings from the same or similar sources indicated in the Prospectus in the ordinary course of its business, or (ii) entered into any transaction which is material in light of the business and properties of the Company and the Bank, taken as a whole.
(w) The Company will promptly take all necessary action to register as a bank holding company under the BHC Act.
(x) The facts and representations provided to Jenkens & Xxxxxxxxx by the Bank and the Company and upon which Xxxxxxx & Xxxxxxxxx will base its opinion under Section 8(c)(1) are and will be truthful, accurate and complete.
Appears in 1 contract
Covenants of the Company and the Bank. The Company and the Bank hereby jointly and severally covenant with the Agent Wxxx as follows:
(a) The Company will not, at any time after the date the Registration Statement is declared effective, file any amendment or supplement to the Registration Statement without providing the Agent Wxxx and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent Wxxx or its counsel shall reasonably object.
(b) Neither the Bank nor the Company will, at any time after the Conversion Application and Holding Company Application are approved by the Agencies, file any amendment or supplement to such Applications without providing the Agent and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably object.
(c) The Company and the Bank will use their best efforts to cause any post-effective amendment to the Registration Statement to be declared effective by the Commission and any post-approval amendment to the Conversion Application and Holding Company Application to be approved by the Agencies and will immediately promptly upon receipt of any information concerning the events listed below notify the AgentWxxx: (i) when the Registration Statement, as amended, has become effective; (ii) when the Conversion Application and Holding Company Application, as amended have been approved by the Agencies; (iii) any comments from the Commission, the Agencies OCC, the Federal Reserve or any other governmental entity with respect to the Offering or the transactions contemplated by this Agreement; (iviii) of the request by the Commission, the Agencies OCC, the Federal Reserve or any other governmental entity for any amendment or supplement to the Registration Statement, the Conversion Application and the Holding Company Application Statement or for additional information; (viv) of the issuance by the Commission, the Agencies OCC, the Federal Reserve or any other governmental entity of any order or other action suspending the Offering or the use of the Registration Statement or the Prospectus or any other filing of the Company or the Bank under the Conversion Regulations, BHC Act or other applicable law, or the threat of any such action; (viv) the issuance by the Commission, the Agencies OCC, the Federal Reserve or any federal or state authority of any stop order suspending the effectiveness of the Registration Statement or of the initiation or threat of initiation or threat of any proceedings for that purpose; or (viivi) of the occurrence of any event mentioned in paragraph (gh) below. The Company and the Bank will make every reasonable effort (i) to prevent the issuance by the Commission, the Agencies OCC, the Federal Reserve or any federal or state authority of any such order and, if any such order shall at any time be issued and issued, (ii) to obtain the lifting thereof at the earliest possible time.
(dc) The Company and the Bank will deliver to the Agent Wxxx and to its counsel two conformed copies of the Registration Statement, the Conversion Application and the Holding Company Application, as originally filed, filed and of each amendment or supplement thereto, including all exhibits. Further, the Company and the Bank will deliver such additional copies of the foregoing documents to counsel to the Agent Wxxx as may be required for any NASD and "blue sky" filings.
(ed) The Company and the Bank will furnish to the AgentWxxx, from time to time during the period when the Prospectus (or any later prospectus related to this offering) is required to be delivered under the 1933 Act or the Securities Exchange Act of 1934 (the "1934 Act"), such number of copies of such Prospectus (as amended or supplemented) as the Agent Wxxx may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the rules and regulations promulgated under the 1934 Act (the "1934 Act Regulations"). The Company authorizes the Agent Wxxx to use the Prospectus (as amended or supplemented, if amended or supplemented) in any lawful manner contemplated by in the Plan Offering in connection with the sale of the Shares by the AgentWxxx.
(fe) The During such period as may be required by applicable law, the Company and the Bank will comply with any and all material terms, conditions, requirements and provisions with respect to the Offering, Offering and the transactions contemplated thereby, thereby imposed by the Commission, the Agencies or the Conversion Regulations or the BHC Act, by applicable state law and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations to be complied with prior to or subsequent to the Closing Date and when the Prospectus is required to be delivered, and during such time period the Company and the Bank will comply, at their own expense, with all material requirements imposed upon them by the Commission, the Agencies or the Conversion Regulations, the BHC Act by applicable state law and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, including, without limitation, Rule 10b-5 under the 1934 Act, in each case as from time to time in force, so far as necessary to permit the continuance of sales or dealing in the shares of Common Stock during such period in accordance with the provisions hereof and the Prospectus.
(gf) If, at any time during the period when the Prospectus relating to the Shares is required to be delivered, any event relating to or affecting the Company or the Bank shall occur, as a result of which it is necessary or appropriate, in the opinion of counsel for the Company and the Bank or in the reasonable opinion of the Agent's Wxxx'x counsel, to amend or supplement the Registration Statement or Prospectus in order to make the Registration Statement or Prospectus not misleading in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, the Company and the Bank will immediately so inform the Agent and prepare and filewill, at their own expense, prepare and file with the Commission and the Agencies and furnish to the Agent Wxxx a reasonable number of copies of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or Prospectus (in form and substance reasonably satisfactory to the Agent Wxxx and its counsel after a reasonable time for review) which will amend or supplement the Registration Statement or Prospectus so that as amended or supplemented it will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading. For the purpose of this Agreement, the Company and the Bank each will timely furnish to the Agent Wxxx such information with respect to itself as the Agent Wxxx may from time to time reasonably request.
(hg) The Company and the Bank will take all necessary actions, in cooperating with the AgentWxxx, and furnish to whomever the Agent Wxxx may direct, such information as may be required to qualify or register the Shares for offering and sale by the Company or to exempt such Shares from registration, or to exempt the Company as a broker-dealer and its officers, directors and employees as broker-dealers or agents under the applicable securities or blue sky laws of such jurisdictions in which the Shares are required under the Conversion Regulations to be sold or as the Agent Wxxx and the Company and the Bank may reasonably agree upon; provided, however, that the Company shall not be obligated to file any general consent to service of process, to qualify to do business in any jurisdiction in which it is not so qualified, or to register its directors or officers as brokers, dealers, salesmen or agents in any jurisdiction. In each jurisdiction where any of the Shares shall have been qualified or registered as above provided, the Company will make and file such statements and reports in each fiscal period as are or may be required by the laws of such jurisdiction.
(i) The Bank shall duly establish and maintain the liquidation account for the benefit of Eligible Account Holders and Supplemental Eligible Account Holders in accordance with the requirements of the Conversion Regulations, and such Eligible Account Holders and Supplemental Eligible Account Holders who continue to maintain their savings accounts in the Bank will have an inchoate interest in their pro rata portion of the liquidation account, which shall have a priority superior to that of the holders of the Shares in the event of a complete liquidation of the Bank.
(jh) The Company and the Bank will not sell or issue, contract to sell or otherwise dispose of, for a period of 180 90 days after the Closing Date, without the Agent's Wxxx'x prior written consent, any shares of Common Stock other than the Shares or other than in connection with any plan or arrangement described in the Prospectus, including existing stock benefit plans.
(ki) The Company shall register has registered its Common Stock under Section 12(g) of the 1934 Act on or prior to the Closing Date pursuant to the Plan and shall request that such registration be effective prior to or upon completion of the Offeringis effective. The Company shall maintain the effectiveness of such registration for not less than three years or such shorter period as may be required by the Agenciesone year.
(lj) During the period during which the Company's Common Stock is registered under the 1934 Act or for three years from the date hereof, whichever period is greaterAct, the Company will furnish to its shareholders stockholders as soon as practicable after the end of each fiscal year an annual report of the Company (including a consolidated balance sheet and statements of consolidated income, shareholdersstockholders' equity and cash flows of the Company and its subsidiaries as at the end of and for such year, certified by independent public accountants in accordance with Regulation S-X under the 1933 Act and the 1934 Act).
(mk) During the period of three years from the date hereof, the Company will furnish to the AgentWxxx: (i) as soon as practicable after such information is publicly available, a copy of each report of the Company furnished to or filed with the Commission under the 1934 Act or any national securities exchange or system on which any class of securities of the Company is listed or quoted (including, but not limited to, reports on Forms 10-KSBK, 10-QSB Q and 8-K and all proxy statements and annual reports to stockholders), (ii) a copy of each other non-confidential report of the Company mailed to its stockholders or filed with the Commission, the Agencies OCC, the Federal Reserve or any other supervisory or regulatory authority or any national securities exchange or system on which any class of securities of the Company is listed or quoted, each press release and material news items quoted and additional documents and information with respect to the Company or the Bank as the Agent Wxxx may reasonably request; and (iii) from time to time, such other nonconfidential information concerning the Company or the Bank as the Agent Wxxx may reasonably request.
(nl) The Company and the Bank will use the net proceeds from the sale of the Shares in the manner set forth in the Prospectus under the caption "How We Intend to Use the of Proceeds."
(om) Other than as permitted by the Conversion Regulations, the BHC Act, the 1933 Act, the 1933 Act Regulations, and the laws of any state in which the Shares are registered or qualified for sale or exempt from registration, neither the Company nor the Bank will distribute any prospectus, offering circular or other offering material in connection with the offer and sale of the Shares.
(pn) The Company will use its best efforts to (i) encourage and assist a market maker to establish and maintain a market for the Shares and (ii) list and maintain quotation of the Shares on a national or regional securities exchange or on the OTC Bulletin Board Nasdaq Small-Cap Market effective on or prior to the Closing Date.
(qo) The Bank will maintain appropriate arrangements for depositing all funds received from persons mailing subscriptions for or orders to purchase Company shall not deliver the Shares in the Offering on an interest-bearing basis at the rate described in the Prospectus until the Closing Date and satisfaction of all conditions precedent to the release of the Bank's obligation to refund payments received from persons subscribing for Company has satisfied or ordering Shares in the Offering in accordance with the Plan and as described in the Prospectus or until refunds of such funds have been made to the persons entitled thereto or withdrawal authorizations canceled in accordance with the Plan and as described in the Prospectus. The Bank will maintain such records of all funds received to permit the funds of each subscriber caused to be separately insured by the FDIC (to the maximum extent allowable) and to enable the Bank to make the appropriate refunds of satisfied each condition set forth in Section 7 hereof, unless any such funds in the event that such refunds are required to be made in accordance with the Plan and as described in the Prospectuscondition is waived.
(rp) The Company and the Bank will take such actions and furnish such information as are reasonably requested by the Agent Wxxx in order for the Agent Wxxx to ensure compliance with the NASD's "Interpretation Relating to Free Riding and Withholding."
(sq) Neither The Company will not revise its plan of distribution as described in the Company nor the Bank will amend the Plan Prospectus without notifying the Agent Wxxx prior thereto.
(tr) The Company shall assist the Agent, if necessary, in connection with the allocation of the Shares in the event of an oversubscription and shall provide the Agent with any information necessary to assist the Company in allocating the Shares in such event and such information shall be accurate and reliable in all material respects.
(u) Prior to the Closing Date, the Company and the Bank will inform the Agent of any event or circumstances of which it is aware as a result of which the Registration Statement and/or Prospectusshall conduct their businesses in all material respects in compliance with all applicable federal and state laws, as then amended or supplementedrules, would contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading.
(v) Subsequent to the date the Registration Statement is declared effective by the Commission regulations, decisions, directives and prior to the Closing Dateorders, except as otherwise may be indicated or contemplated therein or set forth in an amendment or supplement theretoincluding all decisions, neither the Company nor the Bank will have: (i) issued any securities or incurred any liability or obligation, direct or contingent, for borrowed money, except borrowings from the same or similar sources indicated in the Prospectus in the ordinary course of its business, or (ii) entered into any transaction which is material in light directives and orders of the business and properties of OCC, the Company FDIC and the Bank, taken as a wholeFederal Reserve.
(w) The Company will promptly take all necessary action to register as a bank holding company under the BHC Act.
(x) The facts and representations provided to Jenkens & Xxxxxxxxx by the Bank and the Company and upon which Xxxxxxx & Xxxxxxxxx will base its opinion under Section 8(c)(1) are and will be truthful, accurate and complete.
Appears in 1 contract
Samples: Underwriting Agreement (Annapolis National Bancorp Inc)
Covenants of the Company and the Bank. The Company and the Bank hereby jointly and severally covenant with to the Agent as follows:
(a) a. The Company has filed the Registration Statement with the Commission. The Company will not, at any time after the date the Registration Statement is declared effective, file any amendment or supplement to the Registration Statement without providing the Agent and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably object.
b. The Bank has filed the Applications with the Regulatory Agencies. The Company has filed, or will file, an application (bthe “Holding Company Application”) Neither with the Board of Governors of the Federal Reserve System (the “Federal Reserve”) to acquire the stock of the Bank nor in accordance with the Company will, at any time after the Conversion Application and Bank Holding Company Application are approved by Act of 1956, as amended, and the Agencies, file any amendment or supplement to such Applications without providing rules and regulations promulgated thereunder (the Agent and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably object“BHCA”).
(c) c. The Company and the Bank will use their its best efforts to cause any post-effective amendment to the Registration Statement to be declared effective by the Commission and any post-approval amendment to the Conversion Application and Holding Company an Application to be approved by the Agencies Regulatory Agencies, and will immediately upon receipt of any information concerning the events listed below notify the Agent: Agent (i) when the Registration Statement, as amended, has become effective; (ii) when an Application or the Conversion Application and Holding Company Application, as amended have amended, has been approved by a Regulatory Agency or the AgenciesFederal Reserve; (iii) of the receipt of any comments from the Commission, the Agencies Regulatory Agencies, the Federal Reserve or any other governmental entity agency with respect to the Offering or the transactions contemplated by this Agreement; (iv) of the any request by the Commission, a Regulatory Agency, the Agencies Federal Reserve or any other governmental entity for any amendment or supplement to the Registration Statement, the Conversion Application and the Holding Company Application or for additional information; (v) of the issuance by the Commission, a Regulatory Agency, the Agencies Federal Reserve or any other governmental entity agency of any order or other action suspending the Offering or the use of the Registration Statement or the Prospectus or any other filing of the Company or and the Bank under the Conversion Regulations, BHC Act applicable regulations or other applicable law, or the threat of any such action; (vi) of the issuance by the Commission, any Regulatory Agency, the Agencies Federal Reserve or any state authority of any stop order suspending the effectiveness of the Registration Statement or of the initiation or threat of initiation or threat of any proceedings for that purpose; or (vii) of the occurrence of any event mentioned in paragraph (gf) below. The Company and the Bank will make every reasonable effort (i) to prevent the issuance by the Commission, any Regulatory Agency, the Agencies Federal Reserve or any state authority of any such order and, if any such order shall at any time be issued and (ii) issued, to obtain the lifting thereof at the earliest possible time.
(d) d. The Company and the Bank will deliver to the Agent and to its counsel two conformed copies of each of the Registration Statementfollowing documents, with all exhibits: (i) the Conversion Application Applications and the Holding Company Application, as originally filed, filed and of each amendment or supplement thereto, including all exhibitsand (ii) the Registration Statement, as originally filed and each amendment thereto. Further, the Company and the Bank will deliver such additional copies of the foregoing documents to counsel to the Agent as may be required for any NASD and "blue sky" FINRA filings.
(e) . The Company and the Bank will furnish also deliver to the Agent, from time to time during the period when the Prospectus (or any later prospectus related to this offering) is required to be delivered under the 1933 Act or the Securities Exchange Act of 1934 (the "1934 Act"), Agent such number of copies of such Prospectus (the Prospectus, as amended or supplemented) , as the Agent may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the rules and regulations promulgated under the 1934 Act (the "1934 Act Regulations"). The Company authorizes the Agent to use the Prospectus (as amended or supplemented, if amended or supplemented) in any lawful manner contemplated by the Plan in connection with the sale of the Shares by the Agentrequest.
(f) e. The Company and the Bank will comply in all material respects with any and all material terms, conditions, requirements and provisions with respect to the Offering, Offering and the transactions contemplated thereby, thereby imposed by the Commission, the Agencies or the Conversion Regulations or the BHC Actby applicable state law and regulations, and by the 1933 Act, the 1933 Act Regulations, the 1934 Exchange Act and the 1934 Act Regulations rules and regulations of the Commission promulgated under such statutes, to be complied with prior to or subsequent to the Closing Date Date; and when the Prospectus is required to be delivered, and during such time period the Company and the Bank will complycomply in all material respects, at their own expense, with all material requirements imposed upon them by the Regulatory Agencies, the Federal Reserve, the Commission, the Agencies or the Conversion Regulations, the BHC Act by applicable state law and regulations and by the 1933 Act, the 1933 Act Regulations, the 1934 Exchange Act and the 1934 Act Regulations, including, without limitation, Rule 10b-5 rules and regulations of the Commission promulgated under the 1934 Actsuch statutes, in each case as from time to time in force, so far as necessary to permit the continuance of sales or dealing in the Common Stock Shares during such period in accordance with the provisions hereof and the Prospectus.
(g) If, at any time during the period when the Prospectus relating to the Shares is required to be delivered, f. If any event relating to or affecting the Company or the Bank shall occur, as a result of which it is necessary or appropriatenecessary, in the reasonable opinion of counsel for the Company and or the Bank or in the reasonable opinion of for the Agent's counsel, to amend or supplement the Registration Statement or the Prospectus in order to make the Registration Statement or Prospectus them not misleading in light of the circumstances existing at the time the Prospectus is delivered to a purchaserof its use, the Company and the Bank will immediately so inform the Agent and prepare and filewill, at their own its expense, forthwith prepare, file with the Commission and the Agencies Regulatory Agencies, and furnish to the Agent Agent, a reasonable number of copies of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus (in form and substance reasonably satisfactory to counsel for the Agent and its counsel after a reasonable time for review) which will amend or supplement the Registration Statement or Prospectus so that as amended or supplemented it will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchasertime, not misleading. For the purpose of this Agreementsubsection, the Company and the Bank each will timely furnish to the Agent such information with respect to itself and the Bank as the Agent may from time to time reasonably request.
(h) g. The Company and the Bank will take all necessary actionsendeavor in good faith, in cooperating cooperation with the Agent, and furnish to whomever the Agent may direct, such information as may be required register or to qualify or register the Shares for offering and sale by the Company or to exempt such Shares from registration, or to exempt the Company as a broker-dealer and its officers, directors and employees as broker-dealers or agents under the applicable securities or blue sky laws of such the jurisdictions in which the Shares are required under the Conversion Regulations to Offering will be sold or as the Agent and the Company and the Bank may reasonably agree uponconducted; provided, however, that the Company shall not be obligated to file any general consent to service of process, process or to qualify to do business in any jurisdiction in which it is not so qualified, or to register its directors or officers as brokers, dealers, salesmen or agents in any jurisdiction. In each jurisdiction where any of the Shares shall have been registered or qualified or registered as above provided, the Company will make and file such statements and reports in each fiscal period year as are or may be required by the laws of such jurisdictionjurisdictions.
(i) h. The Company and the Bank shall duly establish and maintain the liquidation account for the benefit of Eligible Account Holders and Supplemental Eligible Account Holders in accordance with the requirements each of the Conversion Regulations, directors and such Eligible Account Holders and Supplemental Eligible Account Holders who continue to maintain their savings accounts in the Bank will have an inchoate interest in their pro rata portion officers of the liquidation account, which shall have a priority superior to that of the holders of the Shares in the event of a complete liquidation of the Bank.
(j) The Company and the Bank will not sell or issue, contract to sell or otherwise dispose of, for a period of 180 days after the Closing Datedate hereof, without the Agent's ’s prior written consent, which consent shall not be unreasonably withheld, any Common Stock other than the Shares or other than in connection with any plan or arrangement described in the Prospectus, including existing stock benefit plans.
(k) The Company shall register its Common Stock under Section 12(g) of the 1934 Act on or prior to the Closing Date pursuant to the Plan and shall request that such registration be effective prior to or upon completion of the Offering. The Company shall maintain the effectiveness of such registration for not less than three years or such shorter period as may be required by the Agencies.
(l) During the period during which the Company's Common Stock is registered under the 1934 Act or for three years from the date hereof, whichever period is greater, the Company will furnish to its shareholders as soon as practicable after the end of each fiscal year an annual report of the Company (including a consolidated balance sheet and statements of consolidated income, shareholders' equity and cash flows of the Company and its subsidiaries as at the end of and for such year, certified by independent public accountants in accordance with Regulation S-X under the 1933 Act and the 1934 Act).
(m) During i. For the period of three years from the date hereofof this Agreement, the Company will furnish to the Agent: (i) as soon as practicable after such information is publicly available, upon request, a copy of (i) each report of the Company furnished to or filed with the Commission under the 1934 Act or any national securities exchange or system on which any class of securities of the Company is listed or quoted (including, but not limited to, reports on Forms 10-KSB, 10-QSB and 8-K and all proxy statements and annual reports to stockholders), (ii) a copy of each other non-confidential report of the Company mailed to its stockholders or filed with holders of Shares if such report is not immediately available on the Commission’s XXXXX website, the Agencies or any other supervisory or regulatory authority or any national securities exchange or system on which any class of securities of the Company is listed or quoted, each press release and material news items and additional documents and information with respect to the Company or the Bank as the Agent may reasonably request; and (iiiii) from time to time, such other nonconfidential publicly available information concerning the Company or and the Bank as the Agent may reasonably request.
(n) j. The Company and the Bank will use the net proceeds from the sale of the Shares in the manner set forth in the Prospectus under the caption "How We Intend “Use of Proceeds,” and to Use file such reports with the Proceeds."
(o) Other than Commission with respect to the sale of the Shares and the application of the proceeds therefrom as permitted may be required by the Conversion Regulations, the BHC Act, Rule 463 under the 1933 Act.
k. Prior to the Closing Date, the Company will inform the Agent of any event or circumstances of which it is aware as a result of which (i) the Registration Statement, the Prospectus or the Applications and the Holding Company Application as then supplemented or amended, would include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading, or (ii) the information in the Applications would no longer be true, correct and complete in all material respects.
l. The Company will distribute the Prospectus or other offering materials in connection with the offering and sale of the Shares only as set forth in the Prospectus, and only in accordance with the 1933 Act Regulationsand the Exchange Act and the rules and regulations promulgated under such statutes, and the laws of any state in which the Shares are registered or qualified for sale or exempt from registration, neither the Company nor the Bank will distribute any prospectus, offering circular or other offering material in connection with the offer and sale of the Sharessale.
(p) m. The Company will use furnish to its best efforts shareholders such reports as may be required under Section 15(d) of the Exchange Act.
n. The Company will timely file such reports pursuant to (i) encourage and assist a market maker the Exchange Act as are necessary in order to establish and maintain a market make generally available to its security holders as soon as practicable an earning statement for the Shares purposes of, and (iito provide the benefits contemplated by, the last paragraph of Section 11(a) list and maintain quotation of the Shares on the OTC Bulletin Board effective on or prior to the Closing Date1933 Act.
(q) o. The Bank Company will maintain appropriate arrangements with the Escrow Agent for depositing all funds received from persons mailing subscriptions for or orders to purchase Shares in the Offering on an interest-bearing basis at the rate as described in the Prospectus until the Closing Date and satisfaction of all conditions precedent to the release of the Bank's Company’s obligation to refund payments received from persons subscribing for or ordering Shares in the Offering in accordance with the Plan and as described in the Prospectus or until refunds of such funds have been made to the persons entitled thereto or withdrawal authorizations canceled in accordance with the Plan and as described in the Prospectus. The Bank will maintain such records of all funds received to permit the funds of each subscriber to be separately insured by the FDIC (to the maximum extent allowable) and to enable the Bank to make the appropriate refunds of such funds in the event that such refunds are required to be made in accordance with the Plan and as described in the Prospectus.
(r) p. The Company and the Bank will take such actions and furnish such information as are reasonably requested by the Agent in order for the Agent to ensure compliance with FINRA Rule 2790 “Restrictions on the NASD's "Interpretation Relating to Free Riding Purchase and WithholdingSale of Initial Equity Public Offerings of Equity Securities."”
(s) Neither the q. The Company nor and the Bank will conduct their businesses in compliance in all material respects with all applicable federal and state laws, rules, regulations, decisions, directives and orders including, all decisions, directives and orders of the Commission, the OCC, the Federal Reserve and the FDIC.
r. The Company will not amend the Plan terms of the Offering without notifying the Agent prior thereto.
(t) s. The Company shall assist the Agent, if necessary, in connection with the allocation of will not deliver the Shares in the event of an oversubscription and shall provide the Agent with any information necessary to assist the Company in allocating the Shares in such event and such information shall be accurate and reliable in all material respects.
(u) Prior to the Closing Date, until the Company and the Bank will inform the Agent of any event have satisfied or circumstances of which it is aware as a result of which the Registration Statement and/or Prospectus, as then amended or supplemented, would contain an untrue statement of a material fact or omit caused to state a material fact necessary in order to make the statements therein not misleading.
(v) Subsequent to the date the Registration Statement is declared effective by the Commission and prior to the Closing Date, except as otherwise may be indicated or contemplated therein or satisfied each condition set forth in an amendment or supplement theretoSection 8 hereof, neither the Company nor the Bank will have: (i) issued any securities or incurred any liability or obligation, direct or contingent, for borrowed money, except borrowings from the same or similar sources indicated unless such condition is waived in the Prospectus in the ordinary course of its business, or (ii) entered into any transaction which is material in light of the business and properties of the Company and the Bank, taken as a whole.
(w) The Company will promptly take all necessary action to register as a bank holding company under the BHC Act.
(x) The facts and representations provided to Jenkens & Xxxxxxxxx writing by the Bank and the Company and upon which Xxxxxxx & Xxxxxxxxx will base its opinion under Section 8(c)(1) are and will be truthful, accurate and completeAgent.
Appears in 1 contract
Covenants of the Company and the Bank. The Company and the Bank hereby jointly and severally covenant with the Agent as follows:
(a) The Company will not, at any time after the date the Registration Statement is declared effective, not file any amendment or supplement to the Registration Statement without providing the Agent and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably object.
(b) Neither the The Bank nor the Company will, at any time after the Conversion Application and Holding Company Application are approved by the Agencies, will not file any amendment or supplement to such Applications the Conversion Application without providing the Agent and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably object.
(c) The Company will not file any amendment or supplement to the Holding Company Application without providing the Agent and its counsel an opportunity to review the non-confidential portions of such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably object.
(d) The Company and the Bank will use their best efforts to cause any post-effective amendment to the Registration Statement to be declared effective by the Commission SEC and any post-approval amendment to the Conversion Application and Holding Company Application to be approved by the Agencies OTS and will immediately upon receipt of any information concerning the events listed below notify the Agent: (iA) when the Registration Statement, as amended, has become effective; (iiB) when the Conversion Application and Holding Company Application, as amended have amended, has been approved by the AgenciesOTS; (iiiC) when the Company or the Bank receives any written comments from the CommissionOTS, the Agencies SEC or any other governmental entity with respect to the Offering Conversion or the transactions contemplated by this Agreement; (ivD) of when the request by the CommissionOTS, the Agencies SEC or any other governmental entity for requests any amendment or supplement to the Registration Statement, the Conversion Application and the Holding Company Application or for any additional information; (vE) of the issuance by the CommissionOTS, the Agencies SEC or any other governmental entity of any order or other action suspending the Offering or the use of the Registration Statement or the Prospectus or any other filing of the Company or the Bank under the Conversion Regulations, BHC Act or other applicable law, or the threat of any such action; (viF) the issuance by the CommissionSEC, the Agencies or any authority of any stop order suspending the effectiveness of the Registration Statement or of the initiation or threat of initiation or threat of any proceedings for that purpose; or (viiG) of the occurrence of any event mentioned in paragraph (gh) below. The Company and the Bank will make every reasonable effort (i) to prevent the issuance by the CommissionOTS, the Agencies SEC or any state other regulatory authority of any such order and, (ii) if any such order shall at any time be issued and (ii) issued, to obtain the lifting thereof at the earliest possible time.
(de) The Company and the Bank will deliver to the Agent two conformed copies and to its counsel two one conformed copies copy of the Registration Statement, the Conversion Application and the Holding Company Application, as originally filed, filed and of each amendment or supplement thereto, including all exhibits. Further, the Company and the Bank will deliver such additional copies of the foregoing documents to counsel to the Agent as may be required for any NASD and "blue sky" filings.
(ef) The Company and the Bank will furnish to the Agent, from time to time during the period when the Prospectus (or any later prospectus related to this offeringOffering) is required to be delivered under the 1933 Act or the Securities Exchange Act of 1934 (the "1934 Act"), such number of copies of such Prospectus (as amended or supplemented) as the Agent may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or Act, and the rules and regulations promulgated of the SEC under the 1934 Act (the "“1934 Act Regulations"”). The Company authorizes the Agent to use the Prospectus (as amended or supplemented, if amended or supplemented) in any lawful manner contemplated by the Plan in connection with the sale of the Shares by the Agent.
(fg) The Company and the Bank will comply in all material respects with any and all material terms, conditions, requirements and provisions with respect to the Offering, Conversion and the transactions contemplated thereby, thereby imposed by the CommissionOTS, the Agencies SEC or the Conversion Regulations or the BHC ActRegulations, and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations to be complied with prior to or subsequent to the Closing Date and when the Prospectus is required to be delivered, and during such time period period, the Company and the Bank will complycomply in all material respects, at their own expense, with all material requirements imposed upon them by the CommissionOTS, the Agencies SEC or the Conversion Regulations, the BHC Act and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, including, without limitation, Rule 10b-5 under the 1934 Act, in each case as from time to time in force, so far as necessary to permit the continuance of sales or dealing in the Common Stock Shares during such period in accordance with the provisions hereof and the Prospectus.
(gh) If, at any time during the period when the Prospectus relating to the Shares is required to be delivered, any event relating to or affecting the Company Company, the Bank or the Bank Subsidiaries shall occur, as a result of which it is necessary or appropriate, in the opinion of counsel for of the Company and the Bank or in the reasonable opinion of the Agent's ’s counsel, to amend or supplement the Registration Statement or Prospectus in order to make the Registration Statement or Prospectus not misleading in light of the circumstances existing at the time the Prospectus is delivered to a purchaserdelivered, the Company and the Bank will immediately so inform the Agent and prepare and file, at their own expense, prepare and file with the Commission and OTS, the Agencies SEC and furnish to the Agent a reasonable number of copies of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or Prospectus (in form and substance reasonably satisfactory to the Agent and its counsel after a reasonable time for review) which will amend or supplement the Registration Statement or Prospectus so that as amended or supplemented it will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading. For the purpose of this Agreement, the Company and the Bank each will timely furnish to the Agent such information with respect to itself as the Agent may from time to time reasonably request.
(hi) The Company and the Bank will take all necessary actions, actions in cooperating with the Agent, Agent and furnish to whomever the Agent may direct, direct such information as may be required to qualify or register the Shares for offering and sale by the Company or to exempt such Shares from registration, or to exempt the Company as a broker-dealer and its officers, directors and employees as broker-dealers or agents under the applicable securities or blue sky laws of such jurisdictions in which the Shares are required under the Conversion Regulations to be sold or as the Agent and the Company and the Bank may reasonably agree upon; provided, however, that the Company shall not be obligated to file any general consent to service of process, to qualify to do business in any jurisdiction in which it is not so qualified, or to register its directors or officers as brokers, dealers, salesmen or agents in any jurisdiction. In each jurisdiction where any of the Shares shall have been qualified or registered as above provided, the Company will make and file such statements and reports in each fiscal period as are or may be required by the laws of such jurisdiction.
(ij) The At the consummation of the Conversion, the Bank and the Company shall duly establish and maintain the liquidation account for the benefit of Eligible Account Holders and Supplemental Eligible Account Holders in accordance with the requirements of the Conversion Regulations, Regulations and such Eligible Account Holders and Supplemental Eligible Account Holders who continue to maintain their savings deposit accounts in the Bank will have an inchoate interest in their pro rata portion of the liquidation account, which shall have a priority superior to that of the holders of the Shares in the event of a complete liquidation of the Bank.
(jk) The Company and the Bank will not sell or issue, contract to sell or otherwise dispose of, for a period of 180 90 days after the Closing Date, without the Agent's ’s prior written consent, any Common Stock other than the Shares or of their capital stock, other than in connection with any plan or arrangement described in the Prospectus, including existing stock benefit plans.
(kl) The Company shall register its Common Stock Shares under Section 12(g12(b) of the 1934 Act on or prior to during the Closing Date pursuant to the Plan Offering and shall request that such registration be effective prior to or upon completion of the OfferingConversion. The Company shall maintain the effectiveness of such registration for not less than three (3) years or such shorter period as may be required by the Agenciesapplicable law and regulations.
(lm) During the period during which the Company's Common Stock is Shares are registered under the 1934 Act or for three (3) years from the date hereof, whichever period is greater, the Company will furnish to its shareholders as soon as practicable after the end of each fiscal year an annual report of the Company in accordance with the 1934 Act Regulations (including a consolidated balance sheet and consolidated statements of consolidated income, shareholders' ’ equity and cash flows of the Company and its subsidiaries as at the end of and for such year, certified by independent public accountants in accordance with Regulation S-X under the 1933 Act and the 1934 Act).
(mn) During the period of three (3) years from the date hereof, the Company will furnish to the Agent: (iA) as soon as practicable after such information is publicly available, a copy of each report of the Company furnished to or filed with the Commission SEC under the 1934 Act or any national securities exchange or system on which any class of securities of the Company is listed or quoted (including, but not limited to, reports on Forms 10-KSBK, 10-QSB Q and 8-K and all proxy statements and annual reports to stockholders); provided, however that for purposes of this requirement, documents filed electronically on the SEC’s Electronic Data Gathering, Analysis and Retrieval (iiXXXXX) System shall be deemed to be delivered to the Agent upon filing with the SEC; (B) a copy of each other non-confidential report of the Company mailed to its stockholders shareholders or filed with the CommissionOTS, the Agencies SEC or any other supervisory or regulatory authority or any national securities exchange or system on which any class of securities of the Company is listed or quoted, each press release and material news items and additional documents and information with respect to the Company or the Bank as the Agent may reasonably request; and (iiiC) from time to time, such other nonconfidential non-confidential information concerning the Company or the Bank as the Agent may reasonably request.
(no) The Company and the Bank will use the net proceeds from the sale of the Shares in the manner set forth in the Prospectus under the caption "“How We Intend to Use the ProceedsProceeds From the Offering."”
(op) Other than as permitted by the Conversion Regulations, the BHC Act, the 1933 Act, the 1933 Act Regulations, Regulations and its rules and regulations and the laws of any state in which the Shares are registered or qualified for sale or exempt from registration, neither none of the Company nor or the Bank will distribute any prospectus, offering circular or other offering material in connection with the offer and sale of the Shares.
(pq) The Company will use its best efforts to (i) encourage and assist a market maker cooperate with the Agent to establish and maintain a market for effect the Shares and (ii) list and maintain quotation trading of the Shares on the OTC Bulletin Board effective Nasdaq Capital Market on or prior to the Closing Date.
(qr) The Bank will maintain appropriate arrangements for depositing all funds received from persons mailing subscriptions for or orders to purchase Shares in the Subscription Offering and Community Offering on an interest-bearing basis (all funds received by check will be deposited in a segregated account at the rate Bank no later than 12:00 noon on the business day after receipt) as described in the Prospectus until the Closing Date and satisfaction of all conditions precedent to the release of the Bank's ’s obligation to refund payments received from persons subscribing for or ordering Shares in the Offering in accordance with the Plan and as described in the Prospectus or until refunds of such funds have been made to the persons entitled thereto or withdrawal authorizations canceled in accordance with the Plan and as described in the Prospectus. The Bank will maintain such records of all funds received to permit the funds of each subscriber to be separately insured by the FDIC (to the maximum extent allowable) and to enable the Bank to make the appropriate refunds of such funds in the event that such refunds are required to be made in accordance with the Plan and as described in the Prospectus.
(rs) The Company and the Bank will take such actions and furnish such information as are reasonably requested by the Agent in order for the Agent to ensure compliance with the NASD's "Interpretation Relating to Free Riding and WithholdingFINRA Rule 5130."
(st) Neither the Company nor the Bank will amend the Plan or change the contribution to the Foundation without notifying the Agent prior thereto.
(tu) The Company shall assist the Agent, if necessary, in connection with the allocation of the Shares in the event of an oversubscription and shall provide the Agent with any information necessary to assist the Company in allocating the Shares in such event and such information shall be accurate and reliable in all material respects.
(uv) Prior to the Closing Date, the Company Company, the Bank and the Bank Subsidiaries will inform the Agent of any event or circumstances of which it is aware as a result of which the Registration Statement and/or Prospectus, as then amended or supplemented, would contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein therein, in light of the circumstances under which they were made, not misleading.
(vw) Subsequent to the date the Registration Statement is declared effective by the Commission SEC and prior to the Closing Date, except as otherwise may be indicated or contemplated therein or set forth in an amendment or supplement thereto, neither the Company nor the Bank has or will have: (iA) issued any securities or incurred any liability or obligation, direct or contingent, for borrowed money, except borrowings from the same or similar sources indicated in the Prospectus in the ordinary course of its business, or (iiB) entered into any transaction which is material in light of the business and properties of the Company and the Bank, taken as a whole.
(w) The Company will promptly take all necessary action to register as a bank holding company under the BHC Act.
(x) The facts and representations provided to Jenkens & Xxxxxxxxx by the Bank and the Company and upon which Xxxxxxx & Xxxxxxxxx will base its opinion under Section 8(c)(1) are and will be truthful, accurate and complete.
Appears in 1 contract
Samples: Agency Agreement (If Bancorp, Inc.)
Covenants of the Company and the Bank. The Company and the Bank hereby jointly and severally covenant with the Agent as Wexx xs follows:
(a) The Company will not, at any time after the date the Registration Statement is declared effective, file any amendment or supplement to the Registration Statement without providing the Agent and Wexx xnd its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or Wexx xr its counsel shall reasonably object.
(b) Neither the The Bank nor the Company willwill not, at any time after the Conversion Application and Holding Company Application are is approved by the AgenciesDivision, file any amendment or supplement to such Applications Conversion Application without providing the Agent and Wexx xnd its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or Wexx xr its counsel shall reasonably object.
(c) The Bank will not, at any time after the FDIC issues its Notice of Objection, file any amendment or supplement to the FDIC Notice without providing Wexx xnd its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement Wexx xr its counsel shall reasonably object.
(d) The Company will not, at any time before the Holding Company Application is approved by the OTS, file any amendment or supplement to such Holding Company Application without providing Wexx xnd its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement Wexx xr its counsel shall reasonably object.
(e) The Company and the Bank will use their best efforts to cause any post-effective amendment to the Registration Statement to be declared effective by the Commission and any post-approval effective amendment to the Conversion Application and Holding Company Application to be approved by the Agencies Division and will immediately upon receipt of any information concerning the events listed below notify the AgentWexx: (i) when the Registration Statement, as amended, has become effective; (ii) when the Conversion Application and Application, as amended, has been approved by the Division; (iii) when the Holding Company Application, as amended have amended, has been approved by the AgenciesOTS; (iiiiv) when the Notice of Non-Objection, as amended, has been received from the FDIC; (v) of any comments from the Commission, the Agencies Division, the OTS, the FDIC or any other governmental entity with respect to the Offering Conversion or the transactions contemplated by this Agreement; (ivvi) of the request by the Commission, the Agencies Division, the OTS, or the FDIC or any other governmental entity for any amendment or supplement to the Registration Statement, the Conversion Application and Application, the FDIC Notice or the Holding Company Application or for additional information; (vvii) of the issuance by the Commission, the Agencies Division, the OTS, the FDIC or any other governmental entity of any order or other action suspending the Offering or the use of the Registration Statement or the Prospectus or any other filing of the Company or the Bank under the Conversion Regulations, BHC Act or other applicable law, or the threat of any such action; (viviii) the issuance by the Commission, the Agencies Division, the OTS, the FDIC or any state authority of any stop order suspending the effectiveness of the Registration Statement or the approval of the Conversion Application or Holding Company Application, or of the initiation or threat of initiation or threat of any proceedings for that any such purpose; or (viiix) of the occurrence of any event mentioned in paragraph (gi) below. The Company and the Bank will make every reasonable effort (i) to prevent the issuance by the Commission, the Agencies Division, the OTS, the FDIC or any state authority of any such order and, if any such order shall at any time be issued and issued, (ii) to obtain the lifting thereof at the earliest possible time.
(df) The Company and the Bank will deliver to the Agent and Wexx xnd to its counsel two conformed copies of the Registration Statement, the Conversion Application Application, the FDIC Notice and the Holding Company Application, as originally filed, filed and of each amendment or supplement thereto, including all exhibits. Further, the Company and the Bank will deliver such additional copies of the foregoing documents to counsel to the Agent as Wexx xs may be required for any NASD and "blue sky" filings.
(eg) The Company and the Bank will furnish to the AgentWexx, from time to time during the period when the Prospectus (or any later prospectus related to this offering) is required to be delivered under the 1933 Act or the Securities Exchange Act of 1934 1934, (the "1934 Act"), such number of copies of such Prospectus (as amended or supplemented) as the Agent may Wexx xay reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the rules and regulations promulgated under the 1934 Act (the "1934 Act Regulations"). The Company authorizes the Agent to Wexx xo use the Prospectus (as amended or supplemented, if amended or supplemented) in any lawful manner contemplated by the Plan in connection with the sale of the Shares by the AgentWexx.
(fh) The Company and the Bank will comply with any and all material terms, conditions, requirements and provisions with respect to the Offering, and the transactions contemplated thereby, Conversion imposed by the Commission, the Agencies Division, the OTS, the FDIC, the Conversion Regulations, the ICSA or the Conversion Regulations or the BHC ActHOLA, and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations to be complied with prior to or subsequent to the Closing Date and when the Prospectus is required to be delivered, and during such time period the Company and the Bank will comply, at their own expense, with all material requirements imposed upon them by the Commission, the Agencies or Division, the OTS, the FDIC, the Conversion Regulations, the BHC Act ICSA or the HOLA, and by the 1933 1993 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, including, without limitation, Rule 10b-5 under the 1934 Act, in each case as from time to time in force, so far as necessary to permit the continuance of sales or dealing in the shares of Common Stock during such period in accordance with the provisions hereof and the Prospectus.
(gi) If, at any time during the period when the Prospectus relating to the Shares is required to be delivered, any event relating to or affecting the Company or the Bank shall occur, as a result of which it is necessary or appropriate, in the opinion of counsel for the Company and the Bank or in the reasonable opinion of the Agent's counsel, to amend or supplement the Registration Statement or Prospectus in order to make the Registration Statement or Prospectus not misleading in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, the Company and the Bank will immediately so inform the Agent and prepare and filewill, at their own expense, prepare and file with the Commission Commission, the Division, the OTS and the Agencies FDIC and furnish to the Agent a Wexx x reasonable number of copies of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or and Prospectus (in form and substance reasonably satisfactory to the Agent and Wexx xnd its counsel after a reasonable time for review) which will amend or supplement the Registration Statement or and Prospectus so that as amended or supplemented it will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading. For the purpose of this Agreement, the Company and the Bank each will timely furnish to the Agent such Wexx xuch information with respect to itself as the Agent may Wexx xay from time to time reasonably request.
(hj) At the Closing Date referred to in Section 2, the Plan will have been adopted by the Board of Directors of the Company and the Bank and the offer and sale of the Shares will have been conducted in all material respects in accordance with the Plan, the Conversion Regulations, the ICSA, the HOLA and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company or the Bank by the Commission, Division, the OTS, the FDIC or any other regulatory authority and in the manner described in the Prospectus.
(k) Upon completion of the sale by the Company of the Shares contemplated by the Prospectus, (i) the Bank will be converted pursuant to the Plan to an Illinois state chartered stock savings bank, (ii) all of the authorized and outstanding capital stock of the Bank will be owned by the Company, and (iii) the Company will have no direct subsidiaries other than the Bank. The Conversion will have been effected in all material respects in accordance with all applicable statutes, regulations, decisions and orders; and, except with respect to the filing of certain post-sale, post-Conversion reports, and documents in compliance with the 1933 Act Regulations, and all terms, conditions, requirements and provisions with respect to the Conversion (except those that are conditions subsequent) imposed by the Commission, the Division, the OTS and the FDIC, if any, will have been complied with by the Company and the Bank in all material respects or appropriate waivers will have been obtained and all material notice and waiting periods will have been satisfied, waived or elapsed.
(l) The Company and the Bank will take all necessary actions, in cooperating cooperation with the AgentWexx, and furnish to whomever the Agent may Wexx xay direct, such information as may be required to qualify or register the Shares for offering and sale by the Company or to exempt such Shares from registration, or to exempt the Company as a broker-dealer and its officers, directors and employees as broker-dealers or agents under the applicable securities or blue sky laws of such jurisdictions in which the Shares are required under the Conversion Regulations to be offered and sold or as the Agent and Wexx xnd the Company and the Bank may reasonably agree upon; provided, however, that the Company shall not be obligated to file any general consent to service of process, process or to qualify to do business in any jurisdiction in which it is not so qualified, or to register its directors or officers as brokers, dealers, salesmen or agents in any jurisdiction. In each jurisdiction where any of the Shares shall have been qualified or registered as above provided, the Company will make and file such statements and reports in each fiscal period as are or may be required by the laws of such jurisdiction.
(im) The Bank shall duly establish and maintain the liquidation account for the benefit of Eligible Account Holders and Supplemental Eligible Account Holders will be duly established and maintained in accordance with the requirements of the Conversion Regulations, and such Eligible Account Holders and Supplemental Eligible Account Holders who continue to maintain their savings accounts in the Bank will have an inchoate interest in their pro rata portion of the liquidation account, which shall have a priority superior to that of the holders of the Shares in the event of a complete liquidation of the BankDivision.
(jn) The Company and the Bank will not sell or issue, contract to sell or otherwise dispose of, for a period of 180 days after the Closing Date, without the Agent's prior Wexx'x xrior written consent, any shares of Common Stock other than the Shares or other than in connection with any plan or arrangement described in the Prospectus, including existing stock benefit plans.
(ko) The Company shall register its Common Stock under Section 12(g) of the 1934 Act on or prior to concurrent with the Closing Date Offering pursuant to the Plan and shall request that such registration be effective prior to or no later than upon completion of the OfferingConversion. The Company shall maintain the effectiveness of such registration for not less than three (3) years or such shorter period as may be required by the AgenciesDivision.
(lp) During the period during which the Company's Common Stock is registered under the 1934 Act or for three years from the date hereof, whichever period is greater, the Company will furnish to its shareholders stockholders as soon as practicable after the end of each fiscal year an annual report of the Company (including a consolidated balance sheet and statements of consolidated income, shareholdersstockholders' equity and cash flows of the Company and its subsidiaries as at the end of and for such year, certified by independent public accountants in accordance with Regulation S-X under the 1933 Act and the 1934 Act).
(mq) During the period of three years from the date hereof, the Company will furnish to the AgentWexx: (i) as soon as practicable after such information is publicly available, a copy of each report of the Company furnished to or filed with the Commission under the 1934 Act or any national securities exchange or system on which any class of securities of the Company is listed or quoted (including, but not limited to, reports on Forms 10-KSBK, 10-QSB Q and 8-K and all proxy statements and annual reports to stockholders), (ii) a copy of each other non-confidential report of the Company mailed to its stockholders or filed with the Commission, the Agencies Division, or the FDIC or any other supervisory or regulatory authority or any national securities exchange or system on which any class of securities of the Company is listed or quoted, each press release and material news items and additional documents and information with respect to the Company or the Bank as the Agent may Wexx xay reasonably request; and (iii) from time to time, such other nonconfidential information concerning the Company or the Bank as the Agent may Wexx xay reasonably request.
(nr) The Company and the Bank will use the net proceeds from the sale of the Shares in the manner set forth in the Prospectus under the caption "How We Intend to Use the of Proceeds."
(os) Other than as permitted by the Conversion RegulationsICSA, the BHC ActHOLA, the 1933 Act, the 1933 Act Regulations, and the laws of any state in which the Shares are registered or qualified for sale or exempt from registration, neither the Company nor the Bank will distribute any prospectus, offering circular prospectus or other offering material in connection with the offer and sale of the Shares.
(pt) The Company will use its best efforts to (i) encourage and assist a three market maker makers to establish and maintain a market for the Shares and (ii) list and maintain quotation of the Shares on a national or regional securities exchange or on the OTC Bulletin Board Nasdaq National Market of the Nasdaq Stock Market effective on or prior to the Closing Date.
(qu) The Bank will maintain appropriate arrangements for depositing all funds received from persons mailing subscriptions for or orders to purchase Shares in the Offering on an interest-interest bearing basis at the rate described in the Prospectus until the Closing Date and satisfaction of all conditions precedent to the release of the Bank's obligation to refund payments received from persons subscribing for or ordering Shares in the Offering in accordance with the Plan and as described in the Prospectus or until refunds of such funds have been made to the persons entitled thereto or withdrawal authorizations canceled cancelled in accordance with the Plan and as described in the Prospectus. The Bank will maintain such records of all funds received to permit the funds of each subscriber to be separately insured by the FDIC (to the maximum extent allowable) and to enable the Bank to make the appropriate refunds of such funds in the event that such refunds are required to be made in accordance with the Plan and as described in the Prospectus.
(rv) Prior to the Closing Date, the Holding Company Application shall have been approved by the OTS. The Company will promptly take all necessary action to register as a savings and loan holding company under the HOLA within 90 days of the Closing Date.
(w) The Company and the Bank will take such actions and furnish such information as are reasonably requested by the Agent in Wexx xn order for the Agent to Wexx xo ensure compliance with the NASD's "Interpretation Relating to Free Riding and Withholding."
(sx) Neither the Company nor the The Bank will not amend the Plan of Conversion without notifying the Agent prior Wexx xrior thereto.
(t) The Company shall assist the Agent, if necessary, in connection with the allocation of the Shares in the event of an oversubscription and shall provide the Agent with any information necessary to assist the Company in allocating the Shares in such event and such information shall be accurate and reliable in all material respects.
(u) Prior to the Closing Date, the Company and the Bank will inform the Agent of any event or circumstances of which it is aware as a result of which the Registration Statement and/or Prospectus, as then amended or supplemented, would contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading.
(v) Subsequent to the date the Registration Statement is declared effective by the Commission and prior to the Closing Date, except as otherwise may be indicated or contemplated therein or set forth in an amendment or supplement thereto, neither the Company nor the Bank will have: (i) issued any securities or incurred any liability or obligation, direct or contingent, for borrowed money, except borrowings from the same or similar sources indicated in the Prospectus in the ordinary course of its business, or (ii) entered into any transaction which is material in light of the business and properties of the Company and the Bank, taken as a whole.
(w) The Company will promptly take all necessary action to register as a bank holding company under the BHC Act.
(x) The facts and representations provided to Jenkens & Xxxxxxxxx by the Bank and the Company and upon which Xxxxxxx & Xxxxxxxxx will base its opinion under Section 8(c)(1) are and will be truthful, accurate and complete.
Appears in 1 contract
Samples: Agency Agreement (Efc Bancorp Inc)
Covenants of the Company and the Bank. The Company and the Bank hereby jointly and severally covenant with the Agent Xxxx as follows:
(a) The Company will not, at any time after the date the Registration Statement is declared effective, file any amendment or supplement to the Registration Statement without providing the Agent Xxxx and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent Xxxx or its counsel shall reasonably object.
(b) Neither the The Bank nor the Company willwill not, at any time after the Conversion Application and Holding Company Application are is approved by the AgenciesOTS, file any amendment or supplement to such Applications Conversion Application without providing the Agent Xxxx and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent Xxxx or its counsel shall reasonably object.
(c) The Company will not, at any time before the Holding Company Application is approved by the OTS, file any amendment or supplement to such Holding Company Application without providing Xxxx and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement Xxxx or its counsel shall reasonably object. The Company and the Bank will not consummate the Conversion prior to the approval of the Holding Company Application by the OTS.
(d) The Company and the Bank will use their best efforts to cause any post-effective amendment to the Registration Statement to be declared effective by the Commission and any post-approval effective amendment to the Conversion Application and Holding Company Application to be approved by the Agencies OTS and will immediately upon receipt of any information concerning the events listed below notify the AgentXxxx: (i) when the Registration Statement, as amended, has become effective; (ii) when the Conversion Application and Application, as amended, has been approved by the OTS; (iii) when the Holding Company Application, as amended have amended, has been approved by the AgenciesOTS; (iiiiv) of any comments from the Commission, the Agencies OTS or any other governmental entity with respect to the Offering Conversion or the transactions contemplated by this Agreement; (ivv) of the request by the Commission, the Agencies OTS or any other governmental entity for any amendment or supplement to the Registration Statement, the Conversion Application and or the Holding Company Application or for additional information; (vvi) of the issuance by the Commission, the Agencies OTS or any other governmental entity of any order or other action suspending the Offering or the use of the Registration Statement or the Prospectus or any other filing of the Company or the Bank under the Conversion Regulations, BHC Act or other applicable law, or the threat of any such action; (vivii) the issuance by the Commission, the Agencies OTS or any state authority of any stop order suspending the effectiveness of the Registration Statement or the approval of the Conversion Application or Holding Company Application, or of the initiation or threat of initiation or threat of any proceedings for that any such purpose; or (viiviii) of the occurrence of any event mentioned in paragraph (gh) below. The Company and the Bank will make every reasonable effort (i) to prevent the issuance by the Commission, the Agencies OTS or any state authority of any such order and, if any such order shall at any time be issued and issued, (ii) to obtain the lifting thereof at the earliest possible time.
(de) The Company and the Bank will deliver to the Agent Xxxx and to its counsel two conformed copies of the Registration Statement, the Conversion Application and the Holding Company Application, as originally filed, filed and of each amendment or supplement thereto, including all exhibits. Further, the Company and the Bank will deliver such additional copies of the foregoing documents to counsel to the Agent Xxxx as may be required for any NASD and "blue sky" filings.
(ef) The Company and the Bank will furnish to the AgentXxxx, from time to time during the period when the Prospectus (or any later prospectus related to this offering) is required to be delivered under the 1933 Act or the Securities Exchange Act of 1934 1934, (the "1934 Act"), such number of copies of such Prospectus (as amended or supplemented) as the Agent Xxxx may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the rules and regulations promulgated under the 1934 Act (the "1934 Act Regulations"). The Company authorizes the Agent Xxxx to use the Prospectus (as amended or supplemented, if amended or supplemented) in any lawful manner contemplated by the Plan in connection with the sale of the Shares by the AgentXxxx.
(fg) The Company and the Bank will comply with any and all material terms, conditions, requirements and provisions with respect to the Offering, and the transactions contemplated thereby, Conversion imposed by the Commission, the Agencies or OTS, the Conversion Regulations or the BHC ActSLHCA, and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations to be complied with prior to or subsequent to the Closing Date and when the Prospectus is required to be delivered, and during such time period the Company and the Bank will comply, at their own expense, with all material requirements imposed upon them by the Commission, the Agencies or the Conversion Regulations, the BHC Act and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, including, without limitation, Rule 10b-5 under the 1934 Act, in each case as from time to time in force, so far as necessary to permit the continuance of sales or dealing in the Common Stock during such period in accordance with the provisions hereof and the ProspectusDate.
(gh) If, at any time during the period when the Prospectus relating to the Shares is required to be delivered, any event relating to or affecting the Company or the Bank shall occur, as a result of which it is necessary or appropriate, in the opinion of counsel for the Company and the Bank or in the reasonable opinion of the Agent's counsel, to amend or supplement the Registration Statement or Prospectus in order to make the Registration Statement or Prospectus not misleading in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, the Company and the Bank will immediately so inform the Agent and prepare and filewill, at their own expense, prepare and file with the Commission and the Agencies OTS and furnish to the Agent Xxxx a reasonable number of copies of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or and Prospectus (in form and substance reasonably satisfactory to the Agent Xxxx and its counsel after a reasonable time for review) which will amend or supplement the Registration Statement or and Prospectus so that as amended or supplemented it will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading. For the purpose of this Agreement, the Company and the Bank each will timely furnish to the Agent Xxxx such information with respect to itself as the Agent Xxxx may from time to time reasonably request.
(hi) At the Closing Date referred to in Section 2, the Plan will have been adopted by the Boards of Directors of both the Company and the Bank and the offer and sale of the Shares will have been conducted in all material respects in accordance with the Plan, the Conversion Regulations, and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company or the Bank by the OTS, the Commission or any other regulatory authority and in the manner described in the Prospectus.
(j) Upon completion of the sale by the Company of the Shares contemplated by the Prospectus, (i) the Bank will be converted pursuant to the Plan to a federally chartered stock savings bank, (ii) all of the authorized and outstanding capital stock of the Bank will be owned by the Company, and (iii) the Company will have no direct subsidiaries other than the Bank. The Conversion will have been effected in all material respects in accordance with all applicable statutes, regulations, decisions and orders; and, except with respect to the filing of certain post-sale, post- Conversion reports, and documents in compliance with the 1933 Act Regulations or the OTS's letters of approval, all terms, conditions, requirements and provisions with respect to the Conversion (except those that are conditions subsequent) imposed by the Commission and the OTS, if any, will have been complied with by the Company and the Bank in all material respects or appropriate waivers will have been obtained and all material notice and waiting periods will have been satisfied, waived or elapsed.
(k) The Company and the Bank will take all necessary actions, in cooperating cooperation with the AgentXxxx, and furnish to whomever Xxxx, the Agent Company and the Bank may directmutually agree, such information as may be required to qualify or register the Shares for offering and sale by the Company or to exempt such Shares from registration, or to exempt the Company as a broker-dealer and its officers, directors and employees as broker-dealers or agents under the applicable securities or blue sky laws of such jurisdictions in which the Shares are required under the Conversion Regulations to be offered and sold or as the Agent Xxxx and the Company and the Bank may reasonably agree upon; provided, however, that the Company shall not be obligated to file any general consent to service of process, process or to qualify to do business in any jurisdiction in which it is not so qualified, or to register its directors or officers as brokers, dealers, salesmen or agents in any jurisdiction. In each jurisdiction where any of the Shares shall have been qualified or registered as above provided, the Company will make and file such statements and reports in each fiscal period as are or may be required by the laws of such jurisdiction.
(il) The Bank shall duly establish and maintain the liquidation account for the benefit of Eligible Account Holders and Supplemental Eligible Account Holders will be duly established and maintained in accordance with the requirements of the Conversion RegulationsOTS, and such Eligible Account Holders and Supplemental Eligible Account Holders who continue to maintain their savings accounts in the Bank will have an inchoate interest in their pro rata portion of the liquidation account, account which shall have a priority superior to that of the holders of the Shares shares of Common Stock in the event of a complete liquidation of the Bank.
(jm) The Company and the Bank will not sell or issue, contract to sell or otherwise dispose of, for a period of 180 90 days after the Closing Date, without the Agent's Xxxx'x prior written consent, any shares of Common Stock other than the Shares or other than in connection with any plan or arrangement described in the Prospectus, including existing stock benefit plans.
(kn) The Company shall register has registered its Common Stock under Section 12(g) of the 1934 Act on or prior to concurrent with the Closing Date Offering pursuant to the Plan and shall request that such registration be became effective prior to or upon completion concurrent with the effectiveness of the OfferingRegistration Statement. The Company shall maintain the effectiveness of such registration for not less than three (3) years or such shorter period as may be required by the AgenciesOTS.
(lo) During the period during which the Company's Common Stock is registered under the 1934 Act or for three years from the date hereof, whichever period is greater, the Company will furnish to its shareholders stockholders as soon as practicable after the end of each fiscal year an annual report of the Company (including a consolidated balance sheet and statements of consolidated income, shareholdersstockholders' equity and cash flows of the Company and its subsidiaries as at the end of and for such year, certified by independent public accountants in accordance with Regulation S-X under the 1933 Act and the 1934 Act).
(mp) During the period of three years from the date hereof, the Company will furnish to the AgentXxxx: (i) as soon as practicable after such information is publicly available, a copy of each report of the Company furnished to or filed with the Commission under the 1934 Act or any national securities exchange or system on which any class of securities of the Company is listed or quoted (including, but not limited to, reports on Forms 10-KSBK, 10-QSB Q and 8-K and all proxy statements and annual reports to stockholders), (ii) a copy of each other non-confidential report of the Company mailed to its stockholders or filed with the Commission, the Agencies OTS or any other supervisory or regulatory authority or any national securities exchange or system on which any class of securities of the Company is listed or quoted, each press release and material news items and additional documents and information with respect to the Company or the Bank as the Agent Xxxx may reasonably request; and (iii) from time to time, such other nonconfidential information concerning the Company or the Bank as the Agent Xxxx may reasonably request.
(nq) The Company and the Bank will use the net proceeds from the sale of the Shares in the manner set forth in the Prospectus under the caption "How We Intend Alaska Pacific Bancshares Intends to Use the Conversion Offering Proceeds."
(or) Other than as permitted by the Conversion Regulations, the BHC ActSLHCA, the 1933 Act, the 1933 Act Regulations, and the laws of any state in which the Shares are registered or qualified for sale or exempt from registration, neither the Company nor the Bank will distribute any prospectus, offering circular or other offering material in connection with the offer and sale of the Shares.
(ps) The Company will use its best efforts to (i) encourage and assist a three market maker makers to establish and maintain a market for the Shares and (ii) list and maintain quotation of the Shares on through the OTC Bulletin Board or the National Daily Quotations System "Pink Sheets" published by the National Quotation Bureau, Inc. effective on or prior to the Closing Date.
(qt) The Bank will maintain appropriate arrangements for depositing all funds received from persons mailing subscriptions for or orders to purchase Shares in the Offering on an interest-interest bearing basis at the rate described in the Prospectus until the Closing Date and satisfaction of all conditions precedent to the release of the Bank's obligation to refund payments received from persons subscribing for or ordering Shares in the Offering in accordance with the Plan and as described in the Prospectus or until refunds of such funds have been made to the persons entitled thereto or withdrawal authorizations canceled cancelled in accordance with the Plan and as described in the Prospectus. The Bank will maintain such records of all funds received to permit the funds of each subscriber to be separately insured by the FDIC (to the maximum extent allowable) and to enable the Bank to make the appropriate refunds of such funds in the event that such refunds are required to be made in accordance with the Plan and as described in the Prospectus.
(ru) Prior to the Closing Date, the Holding Company Application shall have been approved by the OTS. The Company will promptly take all necessary action to register as a savings and loan holding company under the SLHCA within 90 days of the Closing Date.
(v) The Company and the Bank will take such actions and furnish such information as are reasonably requested by the Agent Xxxx in order for the Agent Xxxx to ensure compliance with the NASD's "Interpretation Relating to Free Riding and Withholding."
(sw) Neither the Company nor the The Bank will not amend the Plan without notifying the Agent Xxxx prior thereto.
(tx) The Company shall assist the AgentXxxx, if necessary, in connection with the allocation of the Shares in the event of an oversubscription and shall provide the Agent Xxxx with any information necessary to assist the Company in allocating the Shares in such event and such information shall be accurate and reliable in all material respectsevent.
(uy) Prior to the Closing Date, the Company and the Bank will inform the Agent Xxxx of any event or circumstances of which it is aware as a result of which the Registration Statement Statement, the Conversion Application and/or Prospectus, as then amended or supplemented, would contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading.
(v) Subsequent to the date the Registration Statement is declared effective by the Commission and prior to the Closing Date, except as otherwise may be indicated or contemplated therein or set forth in an amendment or supplement thereto, neither the Company nor the Bank will have: (i) issued any securities or incurred any liability or obligation, direct or contingent, for borrowed money, except borrowings from the same or similar sources indicated in the Prospectus in the ordinary course of its business, or (ii) entered into any transaction which is material in light of the business and properties of the Company and the Bank, taken as a whole.
(w) The Company will promptly take all necessary action to register as a bank holding company under the BHC Act.
(x) The facts and representations provided to Jenkens & Xxxxxxxxx by the Bank and the Company and upon which Xxxxxxx & Xxxxxxxxx will base its opinion under Section 8(c)(1) are and will be truthful, accurate and complete.
Appears in 1 contract
Covenants of the Company and the Bank. The Company and the Bank hereby jointly and severally covenant with the Agent Representative as follows:
(a) The Company and the Bank will notprepare the Prospectus in a form approved by the Representative and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, at any or, if applicable, such earlier time after as may be required by Rule 430A(a)(3) under the date the Registration Statement is declared effective, file any Securities Act Regulation; to make no further amendment or any supplement to the Registration Statement without providing or Prospectus which shall be disapproved by the Agent and its counsel an opportunity Representative promptly after reasonable notice thereof; to review such amendment or supplement or file advise the Representative, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to which amendment the Prospectus or supplement any amended Prospectus has been filed and to furnish the Agent Representative with copies thereof; to advise the Representative, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus, Issuer-Represented Free Writing Prospectus or Prospectus, of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement, any Preliminary Prospectus, any Issuer-Represented Free Writing Prospectus or Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus, Issuer-Represented Free Writing Prospectus or Prospectus or suspending any such qualification, promptly to use its counsel shall reasonably objectbest efforts to obtain the withdrawal of such order.
(b) Neither The Company represents and agrees that, unless it obtains the Bank nor prior consent of the Representative and the Representative represents and agrees that, unless it obtains the prior consent of the Company, it has not made and will not make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Securities Act Rule 433, or that would constitute a “free writing prospectus,” as defined in Securities Act Rule 405, required to be filed with the Commission. Any such free writing prospectus consented to by the Company willand the Representative is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has and will comply with the requirements of Securities Act Rule 433 applicable to any Permitted Free Writing Prospectus, at including timely Commission filing where required, legending and record keeping. The Company need not treat any time after communication as a free writing prospectus if it is exempt from the Conversion Application and Holding Company Application are approved by definition of prospectus pursuant to clause (a) of Section 2(a)(10) of the Agencies, file any amendment Securities Act without regard to Securities Act Rule 172 or supplement to such Applications without providing the Agent and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably object173.
(c) The Company and the Bank will use give the Representative notice of their best efforts intention to cause file or prepare any amendment to the Conversion Application, the Holding Company Application or the Registration Statement (including any post-effective amendment to the Registration Statement to be declared effective by the Commission and any post-approval amendment to the Conversion Application and Holding Company Application to be approved by the Agencies and will immediately upon receipt of any information concerning the events listed below notify the Agent: (iamendment) when the Registration Statement, as amended, has become effective; (ii) when the Conversion Application and Holding Company Application, as amended have been approved by the Agencies; (iii) any comments from the Commission, the Agencies or any other governmental entity with respect to the Offering or the transactions contemplated by this Agreement; (iv) of the request by the Commission, the Agencies or any other governmental entity for any amendment or supplement to the Prospectus (including any revised prospectus that the Company proposes for use in connection with the Public Offering of the Shares that differs from the prospectus on file at the Commission at the time the Registration StatementStatement becomes effective, the Conversion Application and the Holding Company Application whether or for additional information; (vnot such revised prospectus is required to be filed pursuant to Rule 424(b) of the issuance by Securities Act Regulations), will furnish the Commission, the Agencies or any other governmental entity of any order or other action suspending the Offering or the use of the Registration Statement or the Prospectus or any other filing of the Company or the Bank under the Conversion Regulations, BHC Act or other applicable law, or the threat Representative with copies of any such action; (vi) amendment or supplement a reasonable amount of time prior to such proposed filing or use, as the issuance by the Commissioncase may be, the Agencies or any authority of any stop order suspending the effectiveness of the Registration Statement or of the initiation or threat of initiation or threat of any proceedings for that purpose; or (vii) of the occurrence of any event mentioned in paragraph (g) below. The Company and the Bank will make every reasonable effort (i) to prevent the issuance by the Commission, the Agencies or any state authority of not file any such order and, if amendment or supplement or use any such order shall at any time be issued and (ii) prospectus to obtain which the lifting thereof at Representative or counsel for the earliest possible timeRepresentative may object.
(d) The Company and the Bank will deliver to the Agent Representative as many signed copies and to its counsel two as many conformed copies of the Registration StatementHolding Company Application, the Conversion Application and the Holding Company Application, Registration Statement as originally filed, filed and of each amendment thereto (including exhibits filed therewith or supplement theretoincorporated by reference therein) as the Representative may reasonably request, including all exhibits. Further, and prior to 10:00 a.m. Eastern Time on the Company New York Business Day next succeeding the date of this Agreement and the Bank will deliver from time to time such additional number of copies of the foregoing documents to counsel to Prospectus as the Agent as Representative may be required for any NASD and "blue sky" filingsreasonably request.
(e) The Company and the Bank will furnish to the Agent, from time to time during During the period when the Prospectus (or any later prospectus related to this offering) is required to be delivered under the 1933 Act or the Securities Exchange Act of 1934 (the "1934 Act"), such number of copies of such Prospectus (as amended or supplemented) as the Agent may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the rules and regulations promulgated under the 1934 Act (the "1934 Act Regulations"). The Company authorizes the Agent to use the Prospectus (as amended or supplemented, if amended or supplemented) in any lawful manner contemplated by the Plan in connection with the sale of the Shares by the Agent.
(f) The Company and the Bank will comply with any and all material terms, conditions, requirements and provisions with respect to the Offering, and the transactions contemplated thereby, imposed by the Commission, the Agencies or the Conversion Regulations or the BHC Act, and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations to be complied with prior to or subsequent to the Closing Date and when the Prospectus is required to be delivered, and during such time period the Company and the Bank will comply, at their own expense, with all material requirements imposed upon them by the CommissionFederal Reserve Board, by the Agencies or the Conversion applicable FRB Regulations, the BHC Act and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, including, without limitation, Rule 10b-5 under the 1934 Act, in each case as from time to time in force, and by the Nasdaq, Securities Act, the Securities Act Regulations, the Exchange Act, and the rules and regulations of the Commission promulgated thereunder, including, without limitation, Regulation M under the Exchange Act, so far as necessary to permit the continuance of sales or dealing in the shares of Common Stock during such period in accordance with the provisions hereof and the Prospectus.
(gf) If, at any time during the period when the Prospectus relating to the Shares is required to be delivered, If any event relating to or affecting the Company or the Bank circumstance shall occur, occur as a result of which it is necessary or appropriatenecessary, in the reasonable opinion of counsel for the Company and the Bank or in the reasonable opinion of the Agent's counselRepresentative, to amend or supplement the Registration Statement or Prospectus in order to make the Registration Statement or Prospectus not misleading in the light of the circumstances existing at the time the Prospectus it is delivered to a purchaser, the Company and the Bank will immediately so inform the Agent and prepare and file, at their own expense, with the Commission and the Agencies and furnish to the Agent a reasonable number of copies of an amendment forthwith amend or amendments of, or a supplement or supplements to, the Registration Statement or Prospectus (in form and substance reasonably satisfactory to counsel for the Agent and its counsel after a reasonable time for reviewRepresentative) which will amend so that, as so amended or supplement supplemented, the Registration Statement or Prospectus so that as amended or supplemented it will not contain 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 existing at the time the Prospectus it is delivered to a purchaser, not misleading, and the Company and the Bank will furnish to the Representative a reasonable number of copies of such amendment or supplement. For the purpose of this Agreementsubsection, the Company and the Bank will each will timely furnish to the Agent such information with respect to itself as the Agent Representative may from time to time reasonably request.
(hg) The Company and the Bank will take all necessary actionsaction, in cooperating cooperation with the AgentRepresentative, and furnish to whomever the Agent may direct, such information as may be required to qualify or register the Shares for offering and sale by the Company or to exempt such Shares from registration, or to exempt the Company as a broker-dealer and its officers, directors and employees as broker-dealers or agents under the applicable securities or blue sky laws of such states of the United States and other jurisdictions in which the Shares are required under the Conversion Regulations to be sold or as the Agent FRB Regulations may require and as the Representative and the Company and the Bank may reasonably agree uponhave agreed; provided, however, that neither the Company nor the Bank shall not be obligated to file any general consent to service of process, process or to qualify to do business as a foreign corporation in any jurisdiction in which it is not so qualified, or to register its directors or officers as brokers, dealers, salesmen or agents in any jurisdiction. In each jurisdiction where any of in which the Shares shall have been qualified or registered as above providedso qualified, the Company and the Bank will make and file such statements and reports in each fiscal period as are or may be required by the laws of such jurisdictionjurisdiction to continue such qualification in effect for a period of not less than one year from the effective date of the Registration Statement.
(h) The Company will make generally available to its security holders as soon as practicable, but not later than 60 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the Securities Act Regulations) covering a twelve month period beginning not later than the first day of the Company’s fiscal quarter next following the “effective date” (as defined in said Rule 158) of the Registration Statement.
(i) The Bank shall duly establish and maintain the liquidation account for the benefit of Eligible Account Holders and Supplemental Eligible Account Holders in accordance with the requirements of the Conversion Regulations, and such Eligible Account Holders and Supplemental Eligible Account Holders who continue to maintain their savings accounts in the Bank will have an inchoate interest in their pro rata portion of the liquidation account, which shall have a priority superior to that of the holders of the Shares in the event of a complete liquidation of the Bank.
(j) The Company and the Bank will not sell or issue, contract to sell or otherwise dispose of, for a period of 180 days after the Closing Date, without the Agent's prior written consent, any Common Stock other than the Shares or other than in connection with any plan or arrangement described in the Prospectus, including existing stock benefit plans.
(k) The Company shall register its Common Stock under Section 12(g) of the 1934 Act on or prior to the Closing Date pursuant to the Plan and shall request that such registration be effective prior to or upon completion of the Offering. The Company shall maintain the effectiveness of such registration for not less than three years or such shorter period as may be required by the Agencies.
(l) During the period ending on the third anniversary of the expiration of the fiscal year during which the Company's Common Stock is registered under closing of the 1934 Act or for three years from the date hereof, whichever period is greatertransactions contemplated by this Agreement occurs, the Company will furnish to its shareholders stockholders as soon as practicable after the end of each such fiscal year an annual report of the Company (including a consolidated balance sheet and statements of financial condition and consolidated statements of income, shareholders' stockholders’ equity and cash flows of the Company and its subsidiaries as at the end of and for such yearflows, certified by independent public accountants in accordance accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with Regulation S-X under the 1933 Act fiscal quarter ending after the effective date of the Registration Statement), consolidated summary financial information of the Company and the 1934 Act)Bank for such quarter in reasonable detail. In addition, such annual report and quarterly consolidated summary financial information shall be made public through the issuance of appropriate press releases at the same time or prior to the time of the furnishing thereof to stockholders of the Company.
(mj) During the period ending on the third anniversary of three years from the date hereofexpiration of the fiscal year during which the closing of the transactions contemplated hereby occurs, the Company will furnish to the Agent: Representative (i) as soon as practicable after such information is publicly available, a copy of each report or other document of the Company furnished generally to stockholders of the Company or furnished to or filed with the Commission under the 1934 Exchange Act or any national securities exchange or system on which any class of securities of the Company is listed or quoted (includinglisted, but not limited to, reports on Forms 10-KSB, 10-QSB and 8-K and all proxy statements and annual reports to stockholders), (ii) a copy of each other non-confidential report of the Company mailed to its stockholders or filed with the Commission, the Agencies or any other supervisory or regulatory authority or any national securities exchange or system on which any class of securities of the Company is listed or quoted, each press release and material news items and additional documents and information with respect to the Company or the Bank as the Agent may reasonably request; and (iii) from time to time, such other nonconfidential information concerning the Company as the Representative may reasonably request. For purposes of this paragraph, any document filed electronically with the Commission shall be deemed furnished to the Representative.
(k) The Company and the Bank will conduct the Conversion in all material respects in accordance with the Plan, the FRB Regulations, the Commission Regulations and all other applicable regulations, decisions and orders, including all applicable terms, requirements and conditions precedent to the Conversion imposed upon the Company or the Bank by the Federal Reserve Board and the Commission.
(l) The Company and the Bank will comply, at their own expense, with all requirements imposed by the Commission, the Federal Reserve Board, and the Nasdaq or pursuant to the applicable Commission Regulations, FRB Regulations, and Nasdaq regulations as from time to time in force.
(m) The Company will promptly inform the Agent may reasonably requestRepresentative upon its receipt of service with respect to any material litigation or administrative action instituted with respect to the Conversion or the Offerings.
(n) The Each of the Company and the Bank will use the net proceeds received by it from the sale of the Shares Securities in the manner set forth specified in the Prospectus under the caption "How We Intend to “Use the of Proceeds."”
(o) Other than The Company will report the use of proceeds from the Offerings on its first periodic report filed pursuant to Sections 13(a) and 15(d) of the Exchange Act and on any subsequent periodic reports as permitted by may be required pursuant to Rule 463 of the Conversion Regulations, the BHC Act, the 1933 Act, the 1933 Securities Act Regulations, and the laws of any state in which the Shares are registered or qualified for sale or exempt from registration, neither the Company nor the Bank will distribute any prospectus, offering circular or other offering material in connection with the offer and sale of the Shares.
(p) The Company will maintain the effectiveness of the Exchange Act Registration Statement for not less than three years and will comply in all material respects with its filing obligations under the Exchange Act. For three years, the Company will use its best efforts to (i) encourage and assist a market maker to establish effect and maintain a market for the Shares and (ii) list and maintain quotation listing of the Shares Common Stock on the OTC Bulletin Board effective Nasdaq Capital Market and, once listed on or prior to the Closing DateNasdaq Capital Market, the Company will comply with all applicable corporate governance standards required by the Nasdaq Capital Market. The Company will file with the Nasdaq Capital Market all documents and notices required by the Nasdaq Capital Market of companies that have issued securities that are traded in the over-the-counter market and quotations for which are reported by the Nasdaq Capital Market.
(q) The Bank will maintain appropriate arrangements for depositing all funds received from persons mailing subscriptions for or orders to purchase Shares in the Offering on an interest-bearing basis at the rate described in the Prospectus until the Closing Date and satisfaction of all conditions precedent to the release of the Bank's obligation to refund payments received from persons subscribing for or ordering Shares in the Offering in accordance with the Plan and as described in the Prospectus or until refunds of such funds have been made to the persons entitled thereto or withdrawal authorizations canceled in accordance with the Plan and as described in the Prospectus. The Bank will maintain such records of all funds received to permit the funds of each subscriber to be separately insured by the FDIC (to the maximum extent allowable) and to enable the Bank to make the appropriate refunds of such funds in the event that such refunds are required to be made in accordance with the Plan and as described in the Prospectus.
(r) The Company and the Bank will take such actions and furnish such information as are reasonably requested by the Agent Representative in order for the Agent Representative to ensure compliance with the NASD's "Interpretation Relating FINRA Rule 5130.
(r) Other than in connection with any employee benefit plan or arrangement described in the Prospectus, the Company will not, without the prior written consent of the Representative, sell or issue, contract to Free Riding and Withholdingsell or otherwise dispose of, any shares of Common Stock other than the Securities or the Exchange Shares for a period of 180 days following the Time of Delivery."
(s) Neither During the period beginning on the date hereof and ending on the later of the third anniversary of the Time of Delivery or the date on which the Representative receives full payment in satisfaction of any claim for indemnification or contribution to which they may be entitled pursuant to Sections 6 or 7 hereof, respectively, made prior to the third anniversary of the Time of Delivery, neither the Company nor the Bank shall, without the prior written consent of the Representative, take or permit to be taken any action that could result in the Common Stock or the Bank Common Stock becoming subject to any security interest, mortgage, pledge, lien or encumbrance, with the exception of the intended loan to the Bank’s ESOP by the Company to enable the ESOP to purchase securities in an amount up to 8.0% of the Common Stock that will amend be sold in the Plan without notifying the Agent prior theretoOfferings.
(t) The Company shall assist and the Agent, if necessary, Bank will comply with the conditions imposed by or agreed to with the Federal Reserve Board in connection with the allocation its approval of the Shares in Holding Company Application and the event of an oversubscription and shall provide the Agent with any information necessary to assist the Company in allocating the Shares in such event and such information shall be accurate and reliable in all material respectsConversion Application.
(u) Prior The Company shall not deliver the Securities until the Company and the Bank have satisfied each condition set forth in Section 5 hereof, unless such condition is waived by the Representative.
(v) The Company or the Bank will furnish to the Representative as early as practicable prior to the Closing Date, but no later than two (2) full business days prior thereto, a copy of the latest available unaudited interim consolidated financial statements of the Bank, which have been read by Xxxx Xxxxx LLP, as stated in their letters to be furnished pursuant to subsections (f) and (g) of Section 5 hereof.
(w) During the period in which the Prospectus is required to be delivered, both the Company and the Bank will inform conduct its business in compliance in all material respects with all applicable federal and state laws, rules, regulations, decisions, directives and orders, including all decisions, directives and orders of the Agent of any event or circumstances of which it is aware as a result of which Commission, the Registration Statement and/or ProspectusFederal Reserve Board, as then amended or supplementedthe WDFI, would contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleadingFDIC and the Nasdaq Capital Market.
(vx) Subsequent to Neither the date Company or the Registration Statement is declared effective by Bank will amend the Commission Plan in any manner that would affect the sale of the Securities or the terms of this Agreement without the consent of the Representative.
(y) The Company and the Bank will not, prior to the Closing DateTime of Delivery, except as otherwise may be indicated or contemplated therein or set forth in an amendment or supplement thereto, neither the Company nor the Bank will have: (i) issued any securities or incurred incur any liability or obligation, direct or contingent, for borrowed moneyor enter into any material transaction, except borrowings from the same or similar sources indicated in the Prospectus other than in the ordinary course of its businessbusiness consistent with past practice, except as contemplated by the Prospectus.
(z) The Company and the Bank will use all reasonable efforts to comply with, or cause to be complied with, the conditions precedent to the several obligations of the Representative specified in Section 5 hereof.
(aa) The Company and the Bank will (i) use their best efforts to complete the conditions precedent to the Offerings and the Conversion in accordance with the Plan, the applicable FRB Regulations and all other applicable laws, regulations, decisions and orders, including all material terms, conditions, requirements and provisions precedent to the Conversion and the Offerings imposed upon the Company or the Bank by the Commission, the Federal Reserve Board or any other regulatory authority or Blue Sky authority, and to comply with those which the regulatory authority permits to be completed after the Conversion and the Offerings; and (ii) entered into any transaction which is conduct the Conversion and the Offerings in the manner described in the Prospectus and in accordance with the Plan, the FRB Regulations and all other applicable material laws, regulations, decisions and orders, including in light of compliance with all terms, conditions, requirements and provisions precedent to the business Conversion and properties of the Offerings imposed upon the Company and the Bank, taken as a whole.
(w) The Company will promptly take all necessary action to register as a bank holding company under the BHC Act.
(x) The facts and representations provided to Jenkens & Xxxxxxxxx Bank by the Bank and Commission, the Company and upon which Xxxxxxx & Xxxxxxxxx will base its opinion under Section 8(c)(1) are and will be truthfulFederal Reserve Board, accurate and completethe FDIC or any other regulatory or Blue Sky authority.
Appears in 1 contract
Covenants of the Company and the Bank. The Each of the Company and the ------------------------------------- Bank hereby jointly covenants and severally covenant agrees with the Agent Trident as follows:
(a) The Company and the Bank will not, at any time after the date the Registration Statement is declared effective, prepare and file any amendment such amendments or supplement supplements to the Registration Statement without providing Statement, the Agent and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably object.
(b) Neither the Bank nor the Company willProspectus, at any time after the Conversion Application and Holding Company Application are approved the Notice as may hereafter be required by the AgenciesSecurities Act Regulations or the Conversion Regulations or as may hereafter be reasonably requested by Trident. Following completion of the Subscription and Direct Community Offerings, file any amendment or supplement to such Applications without providing in the Agent and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement event of a Syndicated Offering, the Agent or its counsel shall reasonably object.
(c) The Company and the Bank will use their best efforts to cause any (i) promptly prepare and file with the Commis sion a post-effective amendment to the Registration Statement relating to be declared the results of the Subscription and Direct Community Offering, any additional information with respect to the proposed plan of distribution and any revised pricing information or (ii) if no such post-effective by amendment is required, file with, or mail for filing to, the Commission a prospectus or prospectus supplement containing information relating to the results of the Subscription and Direct Community Offering and pricing information pursuant to Rule 424(c) of the Securities Act Regulations, in either case in a form acceptable to Trident.
(b) The Company and the Bank will notify Trident immediately, and confirm the notice in writing, (i) of the effectiveness of any post-approval post- effective amendment to the Conversion Application Registra- tion Statement, the filing of any supplement to the Prospectus and Holding Company Application to be approved by the Agencies filing of any amendment to, and will immediately upon the receipt of any information concerning approval relating to, the events listed below notify the Agent: (i) when the Registration StatementConversion Application, as amended, has become effective; (ii) when of the Conversion Application and Holding Company Application, as amended have been approved by the Agencies; (iii) receipt of any comments from the CommissionCommissioner, the Agencies FDIC or any other governmental entity the Commission with respect to the Offering Prospectus, the Conversion Application or the transactions contemplated by this Agreement; Agreement or the Plan, (iviii) of the any request by the Commission, the Agencies Commissioner or the FDIC for any other governmental entity for amendment to the Registration Statement or the Conversion Application or any amendment or supplement to the Registration Statement, the Conversion Application and the Holding Company Application Prospectus or for additional information; , (iv) of the issuance by the Commissioner of any order suspending the Offerings or the use of the Prospectus or the initiation of any proceedings for that purpose, (v) of the issuance by the Commission, the Agencies or any other governmental entity of any order or other action suspending the Offering or the use of the Registration Statement or the Prospectus or any other filing of the Company or the Bank under the Conversion Regulations, BHC Act or other applicable law, or the threat of any such action; (vi) the issuance by the Commission, the Agencies or any authority Commission of any stop order suspending the effectiveness of the Registration Statement or of the initiation or threat of initiation or threat of any proceedings for that purpose; or , and (viivi) of the occurrence receipt of any event mentioned notice with respect to the suspension of any qualification of the Common Stock for offering or sale in paragraph (g) belowany jurisdiction. The Company and the Bank will make every reasonable effort (i) to prevent the issuance by the Commission, the Agencies or any state authority of any such stop order and, if any such stop order shall at any time be issued and (ii) is issued, to obtain the lifting thereof at the earliest possible timemoment.
(c) The Company and the Bank will give Trident prompt notice of its intention to file any amendment to the Conversion Application or Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus that the Company proposes for use in connection with the Syndicated Offering that differs from the prospectus on file at the Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Securities Act Regulations), will furnish Trident with copies of any such amendment or supplement a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file any such amendment or supplement or use any such prospectus to which Trident or counsel for Trident may reasonably object.
(d) The Company and or the Bank has furnished or will deliver furnish to the Agent and to its counsel two conformed Trident copies of the Registration StatementConversion Application, and each amendment thereto (one of each of which will include all exhibits), the Conversion Application Prospectus and all amendments and supplements thereto, and the Holding Company Application, as originally filed, Registration Statement and of each amendment or supplement all amendments and supplements thereto, including all exhibits. Further, the Company in each case as soon as available and the Bank will deliver in such additional copies of the foregoing documents quantities as Trident may from time to counsel to the Agent as may be required for any NASD and "blue sky" filingstime reasonably request.
(e) The Company and the Bank will furnish to the Agent, from time to time during During the period when the Prospectus (or any later prospectus related to this offering) is required to be delivered under the 1933 Act or the Securities Exchange Act of 1934 (the "1934 Act"), such number of copies of such Prospectus (as amended or supplemented) as the Agent may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the rules and regulations promulgated under the 1934 Act (the "1934 Act Regulations"). The Company authorizes the Agent to use the Prospectus (as amended or supplemented, if amended or supplemented) in any lawful manner contemplated by the Plan in connection with the sale of the Shares by the Agent.
(f) The Company and the Bank will comply with any and all material terms, conditions, requirements and provisions with respect to the Offering, and the transactions contemplated thereby, imposed by the Commission, the Agencies or the Conversion Regulations or the BHC Act, and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations to be complied with prior to or subsequent to the Closing Date and when the Prospectus is required to be delivered, and during such time period the Company and the Bank will comply, at their own expense, with all material requirements imposed upon them by the CommissionCommissioner, by the Agencies or FDIC, by the Conversion Regulations, the BHC Act and by the 1933 Securities Act, the 1933 Securities Act Regulations, the Securities Exchange Act of 1934 Act (the "Exchange Act") and the 1934 Act Regulationsrules and regulations of the Commission promulgated thereunder, including, without limitation, Rule 10b-5 10b-6 under the 1934 Exchange Act, in each case as from time to time in force, so far as necessary to permit the continuance of sales or dealing in the shares of Common Stock during such period in accordance with the provisions hereof and the Prospectus.
(gf) If, at any time If during the offering period when the Prospectus relating to the Shares is required to be delivered, any event relating to or affecting the Company or the Bank shall occur, occurs as a result of which it is necessary or appropriatethe Prospectus, in the opinion of counsel for the Company and the Bank or in the reasonable opinion of the Agent's counsel, to amend or supplement the Registration Statement or Prospectus in order to make the Registration Statement or Prospectus not misleading in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, the Company and the Bank will immediately so inform the Agent and prepare and file, at their own expense, with the Commission and the Agencies and furnish to the Agent a reasonable number of copies of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or Prospectus (in form and substance reasonably satisfactory to the Agent and its counsel after a reasonable time for review) which will amend or supplement the Registration Statement or Prospectus so that as then amended or supplemented it will not contain supplemented, would include an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements statement therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaserthen existing, not misleading. For , or if during such period it is necessary to amend or supplement the purpose of this AgreementConversion Application or the Prospectus to comply with the Conversion Regulations or the Securities Act Regulations, the Company promptly will notify Trident and will prepare and file with the Commissioner, the FDIC and the Bank each Commission and any other authority with jurisdiction, an amendment or supplement that will timely furnish to the Agent correct such information with respect to itself as the Agent may from time to time reasonably requeststatement or omission or effect such compliance.
(hg) The Company and the Bank have taken or will take all necessary actions, in cooperating with the Agent, and furnish to whomever the Agent may direct, such information as may be required action to qualify or register obtain an exemption for the Shares Common Stock for offering offer and sale by the Company or to exempt such Shares from registration, or to exempt the Company as a broker-dealer and its officers, directors and employees as broker-dealers or agents under the applicable securities or blue sky laws of such jurisdictions in which the Shares are required under the Conversion Regulations to be sold or as the Agent Trident and the Company may agree upon and to continue such qualifications or exemptions in effect so long as required for the Bank may reasonably agree upondistribution of the Common Stock pursuant to the Conversion; provided, however, that the Company shall not be obligated in connection therewith to file execute any general consent to service of process, process or to qualify as a foreign corporation to do business in under the laws of any jurisdiction in which it is not so qualifiedsuch jurisdiction. The Company shall notify Trident immediately of the suspension of qualification of the Common Stock or the threat of such action, or to register its directors or officers as brokers, dealers, salesmen or agents in any jurisdiction, of which the Company becomes aware. In each jurisdiction where any The Company shall comply in all material respects with the undertakings, if any, given by it in connection with the qualification of the Shares shall have been qualified or registered as above provided, the Company will make Common Stock for offer and file such statements and reports in each fiscal period as are or may be required by the sale under laws of such jurisdictionjurisdictions.
(h) The Company authorizes Trident and any Selected Dealers to act as agent of the Company in distributing the Prospectus to persons entitled to subscription rights and other persons having record addresses in the states or jurisdictions set forth in a survey of the securities or "blue sky" laws of the various jurisdictions in which the Offerings will be made (the "Blue Sky Survey").
(i) The Bank shall duly establish and maintain Company will make generally available to its security holders as soon as practicable but no later than sixty (60) days from the liquidation account for close of the benefit of Eligible Account Holders and Supplemental Eligible Account Holders period covered thereby an earnings statement (in accordance compliance with the requirements provisions of Rule 158 of the Conversion Securities Act Regulations, and such Eligible Account Holders and Supplemental Eligible Account Holders who continue to maintain their savings accounts in ) covering a twelve month period beginning not later than the Bank will have an inchoate interest in their pro rata portion first day of the liquidation account, which shall have a priority superior to that Company's fiscal quarter next following the "effective date" (as defined in said Rule 158) of the holders of the Shares in the event of a complete liquidation of the BankRegistration Statement.
(j) The Company and the Bank will not sell or issue, contract to sell or otherwise dispose of, for a period of 180 days after the Closing Date, without the Agent's prior written consent, any Common Stock other than the Shares or other than in connection with any plan or arrangement described in the Prospectus, including existing stock benefit plans.
(k) The Company shall register its Common Stock under Section 12(g) of the 1934 Act on or prior to the Closing Date pursuant to the Plan and shall request that such registration be effective prior to or upon completion of the Offering. The Company shall maintain the effectiveness of such registration for not less than three years or such shorter period as may be required by the Agencies.
(l) During the period ending on the third anniversary of the expiration of the fiscal year during which the Company's Common Stock is registered under closing of the 1934 Act or for three years from the date hereof, whichever period is greatertransactions contemplated hereby occurs, the Company will furnish to its shareholders stockholders as soon as practicable after the end of each such fiscal year an annual report of the Company (including a consolidated balance sheet and statements of financial condition and consolidated statements of income, shareholdersstockholders' equity and cash flows of the Company Company, the Bank and its subsidiaries as at the end of and for such yearSubsidiaries, certified by independent public accountants in accordance accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with Regulation S-X under the 1933 Act fiscal quarter ending after the effective date of the Registration Statement), consolidated summary financial information of the Company, the Bank and the 1934 Act)Subsidiaries for such quarter in reasonable detail. In addition, such annual report and quarterly consolidated summary financial information shall be made public through the issuance of appropriate press releases at the same time or prior to the time of the furnishing thereof to stockholders of the Company.
(mk) During the period ending on the third anniversary of three years from the date hereofexpiration of the fiscal year during which the closing of the transactions contemplated hereby occurs, the Company will furnish to the Agent: Trident (i) as soon as practicable after such information is publicly available, a copy of each report or other document of the Company furnished generally to stockholders of the Company or furnished to or filed with the Commission under the 1934 Act or any national securities exchange or system on which any class of securities of the Company is listed or quoted (includinglisted, but not limited to, reports on Forms 10-KSB, 10-QSB and 8-K and all proxy statements and annual reports to stockholders), (ii) a copy of each other non-confidential report of the Company mailed to its stockholders or filed with the Commission, the Agencies or any other supervisory or regulatory authority or any national securities exchange or system on which any class of securities of the Company is listed or quoted, each press release and material news items and additional documents and information with respect to the Company or the Bank as the Agent may reasonably request; and (iii) from time to time, such other nonconfidential public information concerning the Company or the Bank as the Agent Trident may reasonably request.
(nl) The Company and the Bank will conduct the Conversion in all material respects in accordance with the Plan, the Conversion Regulations and all other applicable regulations, decisions and orders thereunder, including all applicable terms, requirements and conditions precedent to the Conversion imposed upon the Company or the Bank by the Commissioner or the FDIC.
(m) Each of the Company and the Bank will use the net proceeds received by it from the sale of the Shares Securities in the manner set forth specified in the Prospectus under the caption "How We Intend to Use the of Proceeds."
(n) The Company will report the use of proceeds of the Offerings pursuant to the requirements of Rule 463 of the Securities Act Regulations.
(o) Other The Company will file a registration statement for the Common Stock under Section 12(g) of the Exchange Act prior to completion of the Offerings and will request that such registration statement be effective upon completion of the Conversion. The Company will maintain the effectiveness of such registration for not less than as permitted three years. The Company will file with the Nasdaq all documents and notices required by Nasdaq National Market of companies that have issued securities that are traded in the over-the-counter market and quotations for which are reported by the Conversion Regulations, the BHC Act, the 1933 Act, the 1933 Act Regulations, and the laws of any state in which the Shares are registered or qualified for sale or exempt from registration, neither the Company nor the Bank will distribute any prospectus, offering circular or other offering material in connection with the offer and sale of the SharesNasdaq National Market.
(p) The Company will use its best efforts to (i) encourage and assist a market maker to establish and maintain a market for the Shares and (ii) list and maintain quotation of the Shares on the OTC Bulletin Board effective on or prior to the Closing Date.
(q) The Bank will maintain appropriate arrangements for depositing all funds received from persons mailing subscriptions for or orders to purchase Shares in the Offering on an interest-bearing basis at the rate described in the Prospectus until the Closing Date and satisfaction of all conditions precedent to the release of the Bank's obligation to refund payments received from persons subscribing for or ordering Shares in the Offering in accordance with the Plan and as described in the Prospectus or until refunds of such funds have been made to the persons entitled thereto or withdrawal authorizations canceled in accordance with the Plan and as described in the Prospectus. The Bank will maintain such records of all funds received to permit the funds of each subscriber to be separately insured by the FDIC (to the maximum extent allowable) and to enable the Bank to make the appropriate refunds of such funds in the event that such refunds are required to be made in accordance with the Plan and as described in the Prospectus.
(r) The Company and the Bank will take such actions and furnish such information as are reasonably requested by the Agent Trident in order for the Agent Trident to ensure compliance with the National Association of Securities Dealers, Inc.'s ("NASD's ") "Interpretation Relating to Free Free-Riding and Withholding."
" (s) Neither the Company nor the Bank will amend the Plan without notifying the Agent prior thereto.
(tq) The Company shall assist the Agent, if necessary, in connection with the allocation of the Shares in the event of an oversubscription and shall provide the Agent with any information necessary to assist the Company in allocating the Shares in such event and such information shall be accurate and reliable in all material respects.
(u) Prior to the Closing Date, the Company and the Bank will inform comply with the Agent of any event or circumstances of which it is aware as a result of which the Registration Statement and/or Prospectus, as then amended or supplemented, would contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading.
(v) Subsequent to the date the Registration Statement is declared effective conditions imposed by the Commission and prior to the Closing Date, except as otherwise may be indicated or contemplated therein or set forth Commissioner in an amendment or supplement thereto, neither the Company nor the Bank will have: (i) issued any securities or incurred any liability or obligation, direct or contingent, for borrowed money, except borrowings from the same or similar sources indicated in the Prospectus in the ordinary course of connection with its business, or (ii) entered into any transaction which is material in light approval of the business and properties Conversion Application, by the FDIC in connection with its review of the Company Plan without objection, and the Bank, taken as a whole.
(w) The Company will promptly take all necessary action to register as a bank holding company under the BHC Act.
(x) The facts and representations provided to Jenkens & Xxxxxxxxx by the Bank and Board in connection with its approval of the Holding Company and upon which Xxxxxxx & Xxxxxxxxx will base its opinion under Section 8(c)(1) are and will be truthful, accurate and completeApplication.
Appears in 1 contract
Covenants of the Company and the Bank. The Company hereby covenants, and agrees to cause the Bank hereby jointly and severally to covenant with upon formation, to the Agent as follows:
(a) a. The Company has filed the Registration Statement with the Commission. The Company will not, at any time before or after the date the Registration Statement is declared effective, file any amendment or supplement to the Registration Statement without providing the Agent and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably object.
b. The Bank has filed the Applications with the Regulatory Agencies. The Company has filed, or will file, an application (bthe "Holding Company Application") Neither with the Board of Governors of the Federal Reserve System (the "Federal Reserve") to acquire the stock of the Bank nor in accordance with the Company will, at any time after the Conversion Application and Bank Holding Company Application are approved by Act of 1956, as amended, and the Agencies, file any amendment or supplement to such Applications without providing rules and regulations promulgated thereunder (the Agent and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably object"BHCA").
(c) c. The Company and the Bank will use their its best efforts to cause any post-effective amendment to the Registration Statement to be declared effective by the Commission and any post-approval amendment to the Conversion Application and Holding Company an Application to be approved by the Agencies Regulatory Agencies, and will immediately upon receipt of any information concerning the events listed below notify the Agent: Agent (i) when the Registration Statement, as amended, has become effective; (ii) when an Application or the Conversion Application and Holding Company Application, as amended have amended, has been approved by a Regulatory Agency or the AgenciesFederal Reserve; (iii) of the receipt of any comments from the Commission, the Agencies Regulatory Agencies, the Federal Reserve or any other governmental entity agency with respect to the Offering or the transactions contemplated by this Agreement; (iv) of the any request by the Commission, a Regulatory Agency, the Agencies Federal Reserve or any other governmental entity for any amendment or supplement to the Registration Statement, the Conversion Application and the Holding Company Application or for additional information; (v) of the issuance by the Commission, a Regulatory Agency, the Agencies Federal Reserve or any other governmental entity agency of any order or other action suspending the Offering or the use of the Registration Statement Statement, the Preliminary Prospectuses, the Prospectus or the Prospectus Permitted Free Writing Prospectuses, if any, or any other filing of the Company or and the Bank under the Conversion Regulations, BHC Act applicable regulations or other applicable law, or the threat of any such action; (vi) of the issuance by the Commission, any Regulatory Agency, the Agencies Federal Reserve or any state authority of any stop order suspending the effectiveness of the Registration Statement or of the initiation or threat of initiation or threat of any proceedings for that purpose; or (vii) of the occurrence of any event mentioned in paragraph (gf) below. The Company and the Bank will make every reasonable effort (i) to prevent the issuance by the Commission, any Regulatory Agency, the Agencies Federal Reserve or any state authority of any such order and, if any such order shall at any time be issued and (ii) issued, to obtain the lifting thereof at the earliest possible time.
(d) d. The Company and the Bank will deliver to the Agent and to its counsel two conformed copies of each of the Registration Statementfollowing documents, with all exhibits: (i) the Conversion Application Applications and the Holding Company Application, as originally filed, filed and of each amendment or supplement thereto, including all exhibitsand (ii) the Registration Statement, as originally filed and each amendment thereto. Further, the Company and the Bank will deliver such additional copies of the foregoing documents to counsel to the Agent as may be required for any NASD and "blue sky" filings.
(e) . The Company and the Bank will furnish also deliver to the Agent, from time to time during the period when the Prospectus (or any later prospectus related to this offering) is required to be delivered under the 1933 Act or the Securities Exchange Act of 1934 (the "1934 Act"), Agent such number of copies of such Prospectus (the Prospectus, as amended or supplemented) , as the Agent may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the rules and regulations promulgated under the 1934 Act (the "1934 Act Regulations"). The Company authorizes the Agent to use the Prospectus (as amended or supplemented, if amended or supplemented) in any lawful manner contemplated by the Plan in connection with the sale of the Shares by the Agentrequest.
(f) e. The Company and the Bank will comply in all material respects with any and all material terms, conditions, requirements and provisions with respect to the Offering, Offering and the transactions contemplated thereby, thereby imposed by the Commission, the Agencies or the Conversion Regulations or the BHC Actby applicable state law and regulations, and by the 1933 Act, the 1933 Act Regulations, the 1934 Exchange Act and the 1934 Act Regulations rules and regulations of the Commission promulgated under such statutes, to be complied with prior to or subsequent to the Closing Date Date; and when the Prospectus is required to be delivered, and during such time period the Company and the Bank will complycomply in all material respects, at their own expense, with all material requirements imposed upon them by the Regulatory Agencies, the Federal Reserve, the Commission, the Agencies or the Conversion Regulations, the BHC Act by applicable state law and regulations and by the 1933 Act, the 1933 Act Regulations, the 1934 Exchange Act and the 1934 Act Regulations, including, without limitation, Rule 10b-5 rules and regulations of the Commission promulgated under the 1934 Actsuch statutes, in each case as from time to time in force, so far as necessary to permit the continuance of sales or dealing in the Common Stock Shares during such period in accordance with the provisions hereof and the Prospectus.
(g) If, at any time during the period when the Prospectus relating to the Shares is required to be delivered, f. If any event relating to or affecting the Company or the Bank shall occur, as a result of which it is necessary or appropriatenecessary, in the reasonable opinion of counsel for the Company and or the Bank or in the reasonable opinion of for the Agent's counsel, to amend or supplement the Registration Statement Statement, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus in order to make the Registration Statement or Prospectus them not misleading in light of the circumstances existing at the time the Prospectus is delivered to a purchaserof its use, the Company and the Bank will immediately so inform the Agent and prepare and filewill, at their own its expense, forthwith prepare, file with the Commission and the Agencies Regulatory Agencies, and furnish to the Agent Agent, a reasonable number of copies of an amendment or amendments of, or a supplement or supplements to, the Registration Statement Statement, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus (in form and substance reasonably satisfactory to counsel for the Agent and its counsel after a reasonable time for review) which will amend or supplement the Registration Statement Statement, Preliminary Prospectus, Prospectus or any Permitted Free Writing Prospectus so that as amended or supplemented it will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchasertime, not misleading. For the purpose of this Agreementsubsection, the Company and the Bank each will timely furnish to the Agent such information with respect to itself and the Bank as the Agent may from time to time reasonably request.
(h) g. The Company and the Bank will take all necessary actionsendeavor in good faith, in cooperating cooperation with the Agent, and furnish to whomever the Agent may direct, such information as may be required register or to qualify or register the Shares for offering and sale by the Company or to exempt such Shares from registration, or to exempt the Company as a broker-dealer and its officers, directors and employees as broker-dealers or agents under the applicable securities or blue sky laws of such the jurisdictions in which the Shares are required under the Conversion Regulations to Offering will be sold or as the Agent and the Company and the Bank may reasonably agree uponconducted; provided, however, that the Company shall not be obligated to file any general consent to service of process, process or to qualify to do business in any jurisdiction in which it is not so qualified, or to register its directors or officers as brokers, dealers, salesmen or agents in any jurisdiction. In each jurisdiction where any of the Shares shall have been registered or qualified or registered as above provided, the Company will make and file such statements and reports in each fiscal period year as are or may be required by the laws of such jurisdictionjurisdictions.
(i) h. The Company and the Bank shall duly establish and maintain the liquidation account for the benefit of Eligible Account Holders and Supplemental Eligible Account Holders in accordance with the requirements each of the Conversion Regulations, directors and such Eligible Account Holders and Supplemental Eligible Account Holders who continue to maintain their savings accounts in the Bank will have an inchoate interest in their pro rata portion officers of the liquidation account, which shall have a priority superior to that of the holders of the Shares in the event of a complete liquidation of the Bank.
(j) The Company and the Bank will not sell or issue, contract to sell or otherwise dispose of, for a period of 180 days after the Closing Datedate hereof, without the Agent's prior written consent, which consent shall not be unreasonably withheld, any Common Stock other than the Shares or other than in connection with any plan or arrangement described in the Prospectus, including existing stock benefit plans.
(k) The Company shall register its Common Stock under Section 12(g) of the 1934 Act on or prior to the Closing Date pursuant to the Plan and shall request that such registration be effective prior to or upon completion of the Offering. The Company shall maintain the effectiveness of such registration for not less than three years or such shorter period as may be required by the Agencies.
(l) During the period during which the Company's Common Stock is registered under the 1934 Act or for three years from the date hereof, whichever period is greater, the Company will furnish to its shareholders as soon as practicable after the end of each fiscal year an annual report of the Company (including a consolidated balance sheet and statements of consolidated income, shareholders' equity and cash flows of the Company and its subsidiaries as at the end of and for such year, certified by independent public accountants in accordance with Regulation S-X under the 1933 Act and the 1934 Act).
(m) During i. For the period of three years from the date hereofof this Agreement, the Company will furnish to the Agent: Agent upon request a copy of (i) as soon as practicable after such information is publicly available, a copy of each report of the Company furnished to or filed with the Commission under the 1934 Act or any national securities exchange or system on which any class of securities of the Company is listed or quoted (including, but not limited to, reports on Forms 10-KSB, 10-QSB and 8-K and all proxy statements and annual reports to stockholders), (ii) a copy of each other non-confidential report of the Company mailed to its stockholders or filed with holders of Shares if such report is not immediately available on the Commission, the Agencies or any other supervisory or regulatory authority or any national securities exchange or system on which any class of securities of the Company is listed or quoted, each press release and material news items and additional documents and information with respect to the Company or the Bank as the Agent may reasonably request; 's XXXXX website and (iiiii) from time to time, such other nonconfidential publicly available information concerning the Company or and the Bank as the Agent may reasonably request.
(n) j. The Company and the Bank will use the net proceeds from the sale of the Shares in the manner set forth in the Prospectus under the caption "How We Intend Use of Proceeds," and to Use file such reports with the Proceeds."
(o) Other than Commission with respect to the sale of the Shares and the application of the proceeds therefrom as permitted may be required by the Conversion Regulations, the BHC Act, Rule 463 under the 1933 Act.
k. Prior to the Closing Date, the Company will inform the Agent of any event or circumstances of which it is aware as a result of which (i) the Registration Statement, any Preliminary Prospectus, the Prospectus, any Permitted Free Writing Prospectus, or the Applications and the Holding Company Application as then supplemented or amended, would include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading, or (ii) the information in the Applications would no longer be true, correct and complete in all material respects.
l. The Company will distribute the Prospectus or other offering materials in connection with the offering and sale of the Shares only as set forth in the Prospectus, and only in accordance with the 1933 Act Regulationsand the Exchange Act and the rules and regulations promulgated under such statutes, and the laws of any state in which the Shares are registered or qualified for sale or exempt from registration, neither the Company nor the Bank will distribute any prospectus, offering circular or other offering material in connection with the offer and sale of the Sharessale.
(p) m. The Company will use furnish to its best efforts shareholders such reports as may be required under Section 15(d) of the Exchange Act.
n. The Company will timely file such reports pursuant to (i) encourage and assist a market maker the Exchange Act as are necessary in order to establish and maintain a market make generally available to its security holders as soon as practicable an earning statement for the Shares purposes of, and (iito provide the benefits contemplated by, the last paragraph of Section 11(a) list and maintain quotation of the Shares on the OTC Bulletin Board effective on or prior to the Closing Date1933 Act.
(q) o. The Bank Company will maintain appropriate arrangements with the Escrow Agent for depositing all funds received from persons mailing subscriptions for or orders to purchase Shares in the Offering on an interest-bearing basis at the rate as described in the Prospectus until the Closing Date and satisfaction of all conditions precedent to the release of the BankCompany's obligation to refund payments received from persons subscribing for or ordering Shares in the Offering in accordance with the Plan and as described in the Prospectus or until refunds of such funds have been made to the persons entitled thereto or withdrawal authorizations canceled in accordance with the Plan and as described in the Prospectus. The Bank will maintain such records of all funds received to permit the funds of each subscriber to be separately insured by the FDIC (to the maximum extent allowable) and to enable the Bank to make the appropriate refunds of such funds in the event that such refunds are required to be made in accordance with the Plan and as described in the Prospectus.
(r) p. The Company and the Bank will take such actions and furnish such information as are reasonably requested by the Agent in order for the Agent to ensure compliance with the NASD's NASD Rule 2790 "Interpretation Relating to Free Riding Restrictions on the Purchase and WithholdingSale of Initial Equity Public Offerings of Equity Securities."
(s) Neither the q. The Company nor and the Bank will conduct their businesses in compliance in all material respects with all applicable federal and state laws, rules, regulations, decisions, directives and orders including, all decisions, directives and orders of the Commission, the DBF, the Federal Reserve and the FDIC.
r. The Company will not amend the Plan terms of the Offering without notifying the Agent prior thereto.
(t) s. The Company shall assist the Agent, if necessary, in connection with the allocation of will not deliver the Shares in the event of an oversubscription and shall provide the Agent with any information necessary to assist the Company in allocating the Shares in such event and such information shall be accurate and reliable in all material respects.
(u) Prior to the Closing Date, until the Company and the Bank will inform the Agent of any event have satisfied or circumstances of which it is aware as a result of which the Registration Statement and/or Prospectus, as then amended or supplemented, would contain an untrue statement of a material fact or omit caused to state a material fact necessary in order to make the statements therein not misleading.
(v) Subsequent to the date the Registration Statement is declared effective by the Commission and prior to the Closing Date, except as otherwise may be indicated or contemplated therein or satisfied each condition set forth in an amendment or supplement theretoSection 7 hereof, neither unless such condition is waived in writing by the Company nor the Bank will have: (i) issued any securities or incurred any liability or obligation, direct or contingent, for borrowed money, except borrowings from the same or similar sources indicated in the Prospectus in the ordinary course of its business, or (ii) entered into any transaction which is material in light of the business and properties of the Company and the Bank, taken as a wholeAgent.
(w) t. The Company will promptly take all necessary action to register as a bank holding company under the BHC Act.
(x) The facts and representations provided to Jenkens & Xxxxxxxxx by cause the Bank to duly and validly execute and deliver to the Company Agent an Assumption Agreement in the form of Appendix 2 hereto as soon as practicable after the Bank has the legal capacity to enter contracts under applicable federal and upon which Xxxxxxx & Xxxxxxxxx will base its opinion under Section 8(c)(1) are and will be truthful, accurate and completestate law.
Appears in 1 contract
Covenants of the Company and the Bank. The Each of the Company and the Bank hereby jointly -- covenants and severally covenant agrees with the Agent Trident as follows:
(a) The Company will not, at any time after the date the Registration Statement is declared effective, file any amendment or supplement to the Registration Statement without providing the Agent and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably object.
(b) Neither the Bank nor the Company will, at any time after the Conversion Application and Holding Company Application are approved by the Agencies, file any amendment or supplement to such Applications without providing the Agent and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably object.
(c) a. The Company and the Bank will use their best efforts prepare and file such amendments or supplements to cause the Registration Statement, the Prospectus, the Conversion Application and the Notice as may hereafter be required by the Securities Act Regulations or the Conversion Regulations or as may hereafter be reasonably requested by Trident. Following completion of the Subscription Offering and the Direct Community Offering, in the event of a Syndicated Offering, the Company and the Bank will (i) promptly prepare and file with the Commission a post-effective amendment to the Registration Statement relating to the results of the Subscription Offering and the Direct Community Offering, any additional information with respect to the proposed plan of distribution and any revised pricing information or (ii) if no such post-effective amendment is required, file with, or mail for filing to, the Commission a prospectus or prospectus supplement containing information relating to the results of the Subscription Offering and the Direct Community Offering and pricing information pursuant to Rule 424(c) of the Securities Act Regulations, in either case in a form acceptable to Trident.
b. The Company and the Bank will notify Trident immediately, and confirm the notice in writing of, (i) the effectiveness of any post-effective amendment to the Registration Statement to be declared effective by Statement, the Commission and filing of any post-approval supplement or amendment to the Conversion Application Prospectus, and Holding Company Application to be approved by the Agencies and will immediately upon receipt of any information concerning approval relating to the events listed below notify the Agent: (i) when the Registration StatementConversion Application, as amended, has become effective; (ii) when the Conversion Application and Holding Company Application, as amended have been approved by the Agencies; (iii) receipt of any comments from the CommissionCommissioner, the Agencies FDIC or any other governmental entity the Commission with respect to the Offering Prospectus, the Conversion Application or the transactions contemplated by this Agreement; Agreement or the Plan, (iviii) of the any request by the Commission, the Agencies Commissioner or the FDIC for any other governmental entity for amendment to the Registration Statement or the Conversion Application or any amendment or supplement to the Registration Statement, the Conversion Application and the Holding Company Application Prospectus or for additional information; , (viv) of the issuance by the Commission, the Agencies or any other governmental entity Commissioner of any order or other action suspending the Offering Offerings or the use of the Registration Statement Prospectus or the Prospectus or any other filing of the Company or the Bank under the Conversion Regulations, BHC Act or other applicable law, or the threat initiation of any such action; proceedings for that purpose, (viv) the issuance by the Commission, the Agencies or any authority Commission of any stop order suspending the effectiveness of the Registration Statement or of the initiation or threat of initiation or threat of any proceedings for that purpose; , (vi) the receipt of any notice with respect to the suspension of any qualification of the Common Stock for offering or sale in any jurisdiction, and (vii) of the occurrence receipt of any event mentioned in paragraph (g) belowcomments from the OTS with respect to the Holding Company Application. The Company and the Bank will make every reasonable effort (i) to prevent the issuance by the Commission, the Agencies or any state authority of any such stop order and, if any such stop order shall at any time be issued and (ii) is issued, to obtain the lifting thereof at the earliest possible timemoment.
(d) c. The Company and the Bank will deliver give Trident prompt notice of its intention to the Agent and file any amendment to its counsel two conformed copies of the Registration Statement, the Conversion Application and the Holding Company Application, as originally filed, and of each the Conversion Application or the Registration Statement (including any post-effective amendment) or any amendment or supplement thereto, to the Prospectus (including all exhibits. Further, any revised prospectus that the Company proposes for use in connection with the Syndicated Offering that differs from the prospectus on file at the Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Securities Act Regulations), will furnish Trident with copies of any such amendment or supplement a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file any such amendment or supplement or use any such prospectus to which Trident or counsel for Trident may reasonably object.
d. The Company or the Bank has furnished or will deliver such additional furnish to Trident copies of the foregoing documents to counsel to Conversion Application, and each amendment thereto (one of each of which will include all exhibits), the Agent as may be required for any NASD Prospectus and "blue sky" filings.
(e) The Company all amendments and supplements thereto, the Registration Statement and all amendments and supplements thereto, and the Bank will furnish to the AgentHolding Company Application and all amendments and supplements thereto, in each case as soon as available and in such quantities as Trident may from time to time during reasonably request.
e. During the period when the Prospectus (or any later prospectus related to this offering) is required to be delivered under the 1933 Act or the Securities Exchange Act of 1934 (the "1934 Act"), such number of copies of such Prospectus (as amended or supplemented) as the Agent may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the rules and regulations promulgated under the 1934 Act (the "1934 Act Regulations"). The Company authorizes the Agent to use the Prospectus (as amended or supplemented, if amended or supplemented) in any lawful manner contemplated by the Plan in connection with the sale of the Shares by the Agent.
(f) The Company and the Bank will comply with any and all material terms, conditions, requirements and provisions with respect to the Offering, and the transactions contemplated thereby, imposed by the Commission, the Agencies or the Conversion Regulations or the BHC Act, and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations to be complied with prior to or subsequent to the Closing Date and when the Prospectus is required to be delivered, and during such time period the Company and the Bank will comply, at their own expense, with all material requirements imposed upon them by the CommissionCommissioner, the Agencies or FDIC, the Conversion Regulations, and the BHC Act and by the 1933 Securities Act, the 1933 Securities Act Regulations, the Securities Exchange Act of 1934 Act (the "Exchange Act") and the 1934 Act Regulationsrules and regulations of the Commission promulgated thereunder, including, without limitation, Rule 10b-5 l0b-6 under the 1934 Exchange Act, in each case as from time to time in force, so far as necessary to permit the continuance of sales or dealing in the shares of Common Stock during such period in accordance with the provisions hereof and the Prospectus.
(g) If, at any time f. If during the period when the Prospectus relating to the Shares is required to be delivered, Offerings any event relating to or affecting the Company or the Bank shall occur, occurs as a result of which it is necessary or appropriatethe Prospectus, in the opinion of counsel for the Company and the Bank or in the reasonable opinion of the Agent's counsel, to amend or supplement the Registration Statement or Prospectus in order to make the Registration Statement or Prospectus not misleading in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, the Company and the Bank will immediately so inform the Agent and prepare and file, at their own expense, with the Commission and the Agencies and furnish to the Agent a reasonable number of copies of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or Prospectus (in form and substance reasonably satisfactory to the Agent and its counsel after a reasonable time for review) which will amend or supplement the Registration Statement or Prospectus so that as then amended or supplemented it will not contain supplemented, would include an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements statement therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaserthen existing, not misleading. For , or if during such period it is necessary to amend or supplement the purpose of this AgreementConversion Application or the Prospectus to comply with the Conversion Regulations or the Securities Act Regulations, the Company promptly will notify Trident and will prepare and file with the Commissioner, the FDIC and the Bank each Commission and any other authority with jurisdiction, an amendment or supplement that will timely furnish to the Agent correct such information with respect to itself as the Agent may from time to time reasonably requeststatement or omission or effect such compliance.
(h) g. The Company and the Bank have taken or will take all necessary actions, in cooperating with the Agent, and furnish to whomever the Agent may direct, such information as may be required action to qualify or register obtain an exemption for the Shares Common Stock for offering offer and sale by the Company or to exempt such Shares from registration, or to exempt the Company as a broker-dealer and its officers, directors and employees as broker-dealers or agents under the applicable securities or blue sky laws of such jurisdictions in which the Shares are required under the Conversion Regulations to be sold or as the Agent Trident and the Company may agree upon and to continue such qualifications or exemptions in effect so long as required for the Bank may reasonably agree upondistribution of the Common Stock pursuant to the Conversion; provided, however, that the Company shall not be obligated in connection therewith to file execute any general consent to service of process, process or to qualify as a foreign corporation to do business in any jurisdiction in which it is not so qualified, or to register its directors or officers as brokers, dealers, salesmen or agents in any jurisdiction. In each jurisdiction where any of the Shares shall have been qualified or registered as above provided, the Company will make and file such statements and reports in each fiscal period as are or may be required by under the laws of any such jurisdiction.
(i) The Bank shall duly establish and maintain the liquidation account for the benefit of Eligible Account Holders and Supplemental Eligible Account Holders in accordance with the requirements of the Conversion Regulations, and such Eligible Account Holders and Supplemental Eligible Account Holders who continue to maintain their savings accounts in the Bank will have an inchoate interest in their pro rata portion of the liquidation account, which shall have a priority superior to that of the holders of the Shares in the event of a complete liquidation of the Bank.
(j) The Company and the Bank will not sell or issue, contract to sell or otherwise dispose of, for a period of 180 days after the Closing Date, without the Agent's prior written consent, any Common Stock other than the Shares or other than in connection with any plan or arrangement described in the Prospectus, including existing stock benefit plans.
(k) The Company shall register its Common Stock under Section 12(g) of the 1934 Act on or prior to the Closing Date pursuant to the Plan and shall request that such registration be effective prior to or upon completion of the Offering. The Company shall maintain notify Trident immediately of the effectiveness suspension of qualification of the Common Stock or the threat of such registration action, in any jurisdiction, of which the Company becomes aware. The Company shall comply in all material respects with the undertakings, if any, given by it in connection with the qualification of the Common Stock for not less than three years or offer and sale under laws of such shorter period as may be required by the Agenciesjurisdictions.
h. The Company authorizes Trident and any Selected Dealers to act as agent of the Company in distributing the Prospectus to persons entitled to subscription rights and other persons having record addresses in the states or jurisdictions set forth in a survey of the securities or "blue sky" laws of the various jurisdictions in which the Offerings will be made (lthe "Blue Sky Survey").
i. The Company will make generally available to its security holders as soon as practicable but no later than sixty (60) days from the close of the period covered thereby an earnings statement (in compliance with the provisions of Rule 158 of the Securities Act Regulations) covering a twelve month period beginning not later than the first day of the Company's fiscal quarter next following the "effective date" (as defined in Rule 158) of the Registration Statement.
j. During the period ending on the third anniversary of the expiration of the fiscal year during which the Company's Common Stock is registered under the 1934 Act or for three years from the date hereof, whichever period is greaterClosing occurs, the Company will furnish to its shareholders stockholders as soon as practicable after the end of each such fiscal year an annual report of the Company (including a consolidated balance sheet and statements of financial condition and consolidated statements of income, shareholdersstockholders' equity and cash flows of the Company Company, the Bank and its subsidiaries as at the end of and for such yearany subsidiaries, certified by independent public accountants accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the effective date of the Registration Statement), consolidated summary financial information of the Company, the Bank and any subsidiaries for such quarter in accordance with Regulation S-X under reasonable detail. In addition, such annual report and quarterly consolidated summary financial information shall be made public through the 1933 Act and issuance of appropriate press releases at the 1934 Act)same time or prior to the time of the furnishing thereof to stockholders of the Company.
(m) k. During the period ending on the third anniversary of three years from the date hereofexpiration of the fiscal year during which the Closing occurs, the Company will furnish to the Agent: Trident (i) as soon as practicable after such information is publicly available, a copy of each report or other document of the Company furnished generally to stockholders of the Company or furnished to or filed with the Commission under the 1934 Act or any national securities exchange or system on which any class of securities of the Company is listed or quoted (includinglisted, but not limited to, reports on Forms 10-KSB, 10-QSB and 8-K and all proxy statements and annual reports to stockholders), (ii) a copy of each other non-confidential report of the Company mailed to its stockholders or filed with the Commission, the Agencies or any other supervisory or regulatory authority or any national securities exchange or system on which any class of securities of the Company is listed or quoted, each press release and material news items and additional documents and information with respect to the Company or the Bank as the Agent may reasonably request; and (iii) from time to time, such other nonconfidential public information concerning the Company as Trident may reasonably request.
l. The Company and the Bank will conduct the Conversion in all material respects in accordance with the Plan, the Conversion Regulations and all other applicable regulations, decisions and orders thereunder, including all applicable terms, requirements and conditions precedent to the Conversion imposed upon the Company or the Bank as by the Agent may reasonably requestCommissioner, the FDIC or the OTS.
(n) The m. Each of the Company and the Bank will use the net proceeds received by it from the sale of the Shares Common Stock in the manner set forth specified in the Prospectus under the caption "How We Intend to Use the ProceedsUSE OF PROCEEDS."
(o) Other than as permitted by the Conversion Regulations, the BHC Act, the 1933 Act, the 1933 Act Regulations, and the laws of any state in which the Shares are registered or qualified for sale or exempt from registration, neither the Company nor the Bank will distribute any prospectus, offering circular or other offering material in connection with the offer and sale of the Shares.
(p) n. The Company will report the use its best efforts of proceeds of the Offerings pursuant to (i) encourage and assist the requirements of Rule 463 of the Securities Act Regulations.
o. The Company will file a market maker to establish and maintain a market registration statement for the Shares and (iiCommon Stock under Section 12(g) list and maintain quotation of the Shares on the OTC Bulletin Board effective on or Exchange Act prior to completion of the Closing Date.
(q) Offerings and will request that such registration statement be effective upon completion of the Conversion. The Bank Company will maintain appropriate arrangements the effectiveness of such registration for depositing not less than three years. The Company will file with the National Quotation Bureau, Inc. all funds received from persons mailing subscriptions for or orders to purchase Shares documents and notices required by the National Quotation Bureau, Inc. of companies that have issued securities that are traded in the Offering on an interestover- the-bearing basis at the rate described in the Prospectus until the Closing Date counter market and satisfaction of all conditions precedent to the release of the Bank's obligation to refund payments received from persons subscribing quotations for or ordering Shares in the Offering in accordance with the Plan and as described in the Prospectus or until refunds of such funds have been made to the persons entitled thereto or withdrawal authorizations canceled in accordance with the Plan and as described in the Prospectus. The Bank will maintain such records of all funds received to permit the funds of each subscriber to be separately insured which are reported by the FDIC (to the maximum extent allowable) and to enable the Bank to make the appropriate refunds of such funds in the event that such refunds are required to be made in accordance with the Plan and as described in the ProspectusNational Daily Quotation Service "Pink Sheet."
(r) p. The Company and the Bank will take such actions and furnish such information as are reasonably requested by the Agent Trident in order for the Agent Trident to ensure compliance with the NASD's "Interpretation Relating to Free Free-Riding and Withholding."
(s) Neither the Company nor the Bank will amend the Plan without notifying the Agent prior thereto.
(t) q. The Company shall assist the Agent, if necessary, in connection with the allocation of the Shares in the event of an oversubscription and shall provide the Agent with any information necessary to assist the Company in allocating the Shares in such event and such information shall be accurate and reliable in all material respects.
(u) Prior to the Closing Date, the Company and the Bank will inform comply with, or cause to be complied with, the Agent of any event or circumstances of which it conditions to Trident's obligations set forth in Section 6 hereof unless such conditions are waived in writing by Trident and shall not deliver the Shares until each and every condition set forth in Section 6 hereof has been satisfied, unless such condition is aware as a result of which the Registration Statement and/or Prospectus, as then amended or supplemented, would contain an untrue statement of a material fact or omit to state a material fact necessary waived in order to make the statements therein not misleadingwriting by Trident.
(v) Subsequent r. The Company will promptly prepare and file with the Commissioner, the Commission, the FDIC, the OTS and any other appropriate regulatory agency such reports or documents as may be required by the Conversion Regulations, the Securities Act and rules and regulations promulgated thereunder and other applicable laws and regulations to be filed with such agencies, including, without limitation, reports with respect to the date sale of the Registration Statement is declared effective by Common Stock and the Commission and prior application of the proceeds thereof.
s. The Company will not sell or issue, contract to sell or otherwise dispose of, for a period of 180 days after the Closing Date, except as otherwise may be indicated without Trident's prior written consent, any shares of Common Stock other than in connection with the Offerings or contemplated therein in connection with any employee benefit plan or set forth in an amendment or supplement thereto, neither the Company nor the Bank will have: (i) issued any securities or incurred any liability or obligation, direct or contingent, for borrowed money, except borrowings from the same or similar sources indicated arrangement described in the Prospectus in the ordinary course of its business, or (ii) entered into any transaction which is material in light of the business and properties of the Prospectus.
t. The Company and the Bank, taken as a wholeBank agree that their counsel will undertake the obligations customarily undertaken by underwriters and their counsel with respect to preparation and delivery of the Blue Sky Survey setting forth the registration and other filing requirements of (or exemptions from) the securities laws of the states in which the Offerings are being made.
(w) The Company will promptly take all necessary action to register as a bank holding company under the BHC Act.
(x) The facts and representations provided to Jenkens & Xxxxxxxxx by the Bank and the Company and upon which Xxxxxxx & Xxxxxxxxx will base its opinion under Section 8(c)(1) are and will be truthful, accurate and complete.
Appears in 1 contract
Covenants of the Company and the Bank. The Company and the Bank hereby jointly and severally covenant and agree with the Agent as follows:
(a) The Company will not, at any time after the date the Registration Statement is declared effective, file any amendment or supplement to the Registration Statement without providing the Agent and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably object.
(b) Neither If at any time following issuance of an Issuer-Represented Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Represented Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in light of the circumstances prevailing at the subsequent time, not misleading, the Company has notified or will notify promptly the Agent so that any use of such Issuer-Represented Free Writing Prospectus may cease until it is amended or supplemented and the Company has promptly amended or will promptly amend or supplement such Issuer-Represented Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission; provided, however, that this covenant shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Agent expressly for use therein.
(c) The Company and the Bank nor represent and agree that, unless it obtains the prior consent of the Agent, and the Agent represents and agrees that, unless it obtains the prior consent of the Company willor the Bank, it has not made and will not make any offer relating to the offered Shares that would constitute an “issuer free writing prospectus” as defined in Rule 433 of the 1933 Act Regulations, or that would constitute a “free writing prospectus,” as defined in Rule 405 of the 1933 Act Regulations, required to be filed with the Commission. Any such free writing prospectus consented to by the Company, the Bank and the Agent is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company and the Bank represent that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the 1933 Act Regulations, and has complied and will comply with the requirements of Rule 433 of the 1933 Act Regulations applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping. The Company and the Bank need not treat any communication as a free writing prospectus if it is exempt from the definition of prospectus pursuant to Clause (a) of Section 2(a)(10) of the 1933 Act without regard to Rule 172 or 173 of the 1933 Act Regulations.
(d) The Bank will not, at any time after the Conversion Application and Holding Company Application are Form AC is approved by the AgenciesOTS, file any amendment or supplement to such Applications Form AC without providing the Agent and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably object.
(ce) The Company will not, at any time after the Holding Company Application is approved by the OTS, file any amendment or supplement to such Holding Company Application without providing the Agent and its counsel an opportunity to review the non-confidential portions of such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably object.
(f) The Company and the Bank will use their best efforts to cause any post-effective amendment to the Registration Statement to be declared effective by the Commission and any post-approval effective amendment to the Conversion Application and Form AC or the Holding Company Application to be approved by the Agencies OTS and will immediately upon receipt of any information concerning the events listed below notify the Agent: (i) when the Registration Statement, as amended, has become effective; (ii) when the Conversion Application and Form AC or the Holding Company Application, as amended have amended, has been approved by the AgenciesOTS; (iii) of any comments from the Commission, the Agencies OTS or any other governmental entity with respect to the Offering or the transactions Conversion contemplated by this Agreement; (iv) of the request by the Commission, the Agencies OTS or any other governmental entity for any amendment or supplement to the Registration Statement, the Conversion Application and the Form AC, Holding Company Application or for additional information; (v) of the issuance by the Commission, the Agencies OTS or any other governmental entity of any order or other action suspending the Offering Conversion or the use of the Registration Statement or the Prospectus or any other filing of the Company or the Bank under the Conversion Regulations, BHC Act or other applicable law, or the threat of any such action; (vi) of the issuance by the Commission, the Agencies OTS or any authority of any stop order suspending the effectiveness of the Registration Statement or of the initiation or threat of initiation or threat of any proceedings for that purpose; or (vii) of the occurrence of any event mentioned in paragraph (gh) below. The Company and the Bank will make every reasonable effort (i) to prevent the issuance by the Commission, the Agencies OTS or any other state authority of any such order and, (ii) if any such order shall at any time be issued and (ii) issued, to obtain the lifting thereof at the earliest possible time.
(d) The Company and the Bank will deliver to the Agent and to its counsel two conformed copies of the Registration Statement, the Conversion Application and the Holding Company Application, as originally filed, and of each amendment or supplement thereto, including all exhibits. Further, the Company and the Bank will deliver such additional copies of the foregoing documents to counsel to the Agent as may be required for any NASD and "blue sky" filings.
(e) The Company and the Bank will furnish to the Agent, from time to time during the period when the Prospectus (or any later prospectus related to this offering) is required to be delivered under the 1933 Act or the Securities Exchange Act of 1934 (the "1934 Act"), such number of copies of such Prospectus (as amended or supplemented) as the Agent may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the rules and regulations promulgated under the 1934 Act (the "1934 Act Regulations"). The Company authorizes the Agent to use the Prospectus (as amended or supplemented, if amended or supplemented) in any lawful manner contemplated by the Plan in connection with the sale of the Shares by the Agent.
(f) The Company and the Bank will comply with any and all material terms, conditions, requirements and provisions with respect to the Offering, and the transactions contemplated thereby, imposed by the Commission, the Agencies or the Conversion Regulations or the BHC Act, and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations to be complied with prior to or subsequent to the Closing Date and when the Prospectus is required to be delivered, and during such time period the Company and the Bank will comply, at their own expense, with all material requirements imposed upon them by the Commission, the Agencies or the Conversion Regulations, the BHC Act and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, including, without limitation, Rule 10b-5 under the 1934 Act, in each case as from time to time in force, so far as necessary to permit the continuance of sales or dealing in the Common Stock during such period in accordance with the provisions hereof and the Prospectus.
(g) If, at any time during the period when the Prospectus relating to the Shares is required to be delivered, any event relating to or affecting the Company or the Bank shall occur, as a result of which it is necessary or appropriate, in the opinion of counsel for the Company and the Bank or in the reasonable opinion of the Agent's counsel, to amend or supplement the Registration Statement or Prospectus in order to make the Registration Statement or Prospectus not misleading in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, the Company and the Bank will immediately so inform the Agent and prepare and file, at their own expense, with the Commission and the Agencies and furnish to the Agent a reasonable number of copies of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or Prospectus (in form and substance reasonably satisfactory to the Agent and its counsel after a reasonable time for review) which will amend or supplement the Registration Statement or Prospectus so that as amended or supplemented it will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading. For the purpose of this Agreement, the Company and the Bank each will timely furnish to the Agent such information with respect to itself as the Agent may from time to time reasonably request.
(h) The Company and the Bank will take all necessary actions, in cooperating with the Agent, and furnish to whomever the Agent may direct, such information as may be required to qualify or register the Shares for offering and sale by the Company or to exempt such Shares from registration, or to exempt the Company as a broker-dealer and its officers, directors and employees as broker-dealers or agents under the applicable securities or blue sky laws of such jurisdictions in which the Shares are required under the Conversion Regulations to be sold or as the Agent and the Company and the Bank may reasonably agree upon; provided, however, that the Company shall not be obligated to file any general consent to service of process, to qualify to do business in any jurisdiction in which it is not so qualified, or to register its directors or officers as brokers, dealers, salesmen or agents in any jurisdiction. In each jurisdiction where any of the Shares shall have been qualified or registered as above provided, the Company will make and file such statements and reports in each fiscal period as are or may be required by the laws of such jurisdiction.
(i) The Bank shall duly establish and maintain the liquidation account for the benefit of Eligible Account Holders and Supplemental Eligible Account Holders in accordance with the requirements of the Conversion Regulations, and such Eligible Account Holders and Supplemental Eligible Account Holders who continue to maintain their savings accounts in the Bank will have an inchoate interest in their pro rata portion of the liquidation account, which shall have a priority superior to that of the holders of the Shares in the event of a complete liquidation of the Bank.
(j) The Company and the Bank will not sell or issue, contract to sell or otherwise dispose of, for a period of 180 days after the Closing Date, without the Agent's prior written consent, any Common Stock other than the Shares or other than in connection with any plan or arrangement described in the Prospectus, including existing stock benefit plans.
(k) The Company shall register its Common Stock under Section 12(g) of the 1934 Act on or prior to the Closing Date pursuant to the Plan and shall request that such registration be effective prior to or upon completion of the Offering. The Company shall maintain the effectiveness of such registration for not less than three years or such shorter period as may be required by the Agencies.
(l) During the period during which the Company's Common Stock is registered under the 1934 Act or for three years from the date hereof, whichever period is greater, the Company will furnish to its shareholders as soon as practicable after the end of each fiscal year an annual report of the Company (including a consolidated balance sheet and statements of consolidated income, shareholders' equity and cash flows of the Company and its subsidiaries as at the end of and for such year, certified by independent public accountants in accordance with Regulation S-X under the 1933 Act and the 1934 Act).
(m) During the period of three years from the date hereof, the Company will furnish to the Agent: (i) as soon as practicable after such information is publicly available, a copy of each report of the Company furnished to or filed with the Commission under the 1934 Act or any national securities exchange or system on which any class of securities of the Company is listed or quoted (including, but not limited to, reports on Forms 10-KSB, 10-QSB and 8-K and all proxy statements and annual reports to stockholders), (ii) a copy of each other non-confidential report of the Company mailed to its stockholders or filed with the Commission, the Agencies or any other supervisory or regulatory authority or any national securities exchange or system on which any class of securities of the Company is listed or quoted, each press release and material news items and additional documents and information with respect to the Company or the Bank as the Agent may reasonably request; and (iii) from time to time, such other nonconfidential information concerning the Company or the Bank as the Agent may reasonably request.
(n) The Company and the Bank will use the net proceeds from the sale of the Shares in the manner set forth in the Prospectus under the caption "How We Intend to Use the Proceeds."
(o) Other than as permitted by the Conversion Regulations, the BHC Act, the 1933 Act, the 1933 Act Regulations, and the laws of any state in which the Shares are registered or qualified for sale or exempt from registration, neither the Company nor the Bank will distribute any prospectus, offering circular or other offering material in connection with the offer and sale of the Shares.
(p) The Company will use its best efforts to (i) encourage and assist a market maker to establish and maintain a market for the Shares and (ii) list and maintain quotation of the Shares on the OTC Bulletin Board effective on or prior to the Closing Date.
(q) The Bank will maintain appropriate arrangements for depositing all funds received from persons mailing subscriptions for or orders to purchase Shares in the Offering on an interest-bearing basis at the rate described in the Prospectus until the Closing Date and satisfaction of all conditions precedent to the release of the Bank's obligation to refund payments received from persons subscribing for or ordering Shares in the Offering in accordance with the Plan and as described in the Prospectus or until refunds of such funds have been made to the persons entitled thereto or withdrawal authorizations canceled in accordance with the Plan and as described in the Prospectus. The Bank will maintain such records of all funds received to permit the funds of each subscriber to be separately insured by the FDIC (to the maximum extent allowable) and to enable the Bank to make the appropriate refunds of such funds in the event that such refunds are required to be made in accordance with the Plan and as described in the Prospectus.
(r) The Company and the Bank will take such actions and furnish such information as are reasonably requested by the Agent in order for the Agent to ensure compliance with the NASD's "Interpretation Relating to Free Riding and Withholding."
(s) Neither the Company nor the Bank will amend the Plan without notifying the Agent prior thereto.
(t) The Company shall assist the Agent, if necessary, in connection with the allocation of the Shares in the event of an oversubscription and shall provide the Agent with any information necessary to assist the Company in allocating the Shares in such event and such information shall be accurate and reliable in all material respects.
(u) Prior to the Closing Date, the Company and the Bank will inform the Agent of any event or circumstances of which it is aware as a result of which the Registration Statement and/or Prospectus, as then amended or supplemented, would contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading.
(v) Subsequent to the date the Registration Statement is declared effective by the Commission and prior to the Closing Date, except as otherwise may be indicated or contemplated therein or set forth in an amendment or supplement thereto, neither the Company nor the Bank will have: (i) issued any securities or incurred any liability or obligation, direct or contingent, for borrowed money, except borrowings from the same or similar sources indicated in the Prospectus in the ordinary course of its business, or (ii) entered into any transaction which is material in light of the business and properties of the Company and the Bank, taken as a whole.
(w) The Company will promptly take all necessary action to register as a bank holding company under the BHC Act.
(x) The facts and representations provided to Jenkens & Xxxxxxxxx by the Bank and the Company and upon which Xxxxxxx & Xxxxxxxxx will base its opinion under Section 8(c)(1) are and will be truthful, accurate and complete.
Appears in 1 contract
Covenants of the Company and the Bank. The Company and the Bank hereby jointly and severally covenant with the Agent as follows:
(a) The Company will not, at any time after the date the Registration Statement is declared effective, file any amendment or supplement to the Registration Statement without providing the Agent and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably object.
(b) Neither the Bank nor the Company will, at any time after the Conversion Application and Holding Company Application are approved by the Agencies, file any amendment or supplement to such Applications without providing the Agent and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably object.
(c) The Company and the Bank will use their best efforts to cause any post-effective amendment to the Registration Statement to be declared effective by the Commission and any post-approval amendment to the Conversion Application and Holding Company Application to be approved by the Agencies and will immediately upon receipt of any information concerning the events listed below notify the Agent: (i) when the Registration Statement, as amended, has become effective; (ii) when the Conversion Application and Holding Company Application, as amended have been approved by the Agencies; (iii) any comments from the Commission, the Agencies or any other governmental entity with respect to the Offering or the transactions contemplated by this Agreement; (iv) of the request by the Commission, the Agencies or any other governmental entity for any amendment or supplement to the Registration Statement, the Conversion Application and the Holding Company Application or for additional information; (v) of the issuance by the Commission, the Agencies or any other governmental entity of any order or other action suspending the Offering or the use of the Registration Statement or the Prospectus or any other filing of the Company or the Bank under the Conversion Regulations, BHC Act HOLA or other applicable law, or the threat of any such action; (vi) the issuance by the Commission, the Agencies or any authority of any stop order suspending the effectiveness of the Registration Statement or of the initiation or threat of initiation or threat of any proceedings for that purpose; or (vii) of the occurrence of any event mentioned in paragraph (g) below. The Company and the Bank will make every reasonable effort (i) to prevent the issuance by the Commission, the Agencies or any state authority of any such order and, if any such order shall at any time be issued and (ii) to obtain the lifting thereof at the earliest possible time.
(d) The Company and the Bank will deliver to the Agent and to its counsel two conformed copies of the Registration Statement, the Conversion Application and the Holding Company Application, as originally filed, and of each amendment or supplement thereto, including all exhibits. Further, the Company and the Bank will deliver such additional copies of the foregoing documents to counsel to the Agent as may be required for any NASD and "blue sky" filings.
(e) The Company and the Bank will furnish to the Agent, from time to time during the period when the Prospectus (or any later prospectus related to this offering) is required to be delivered under the 1933 Act or the Securities Exchange Act of 1934 (the "1934 Act"), such number of copies of such Prospectus (as amended or supplemented) as the Agent may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the rules and regulations promulgated under the 1934 Act (the "1934 Act Regulations"). The Company authorizes the Agent to use the Prospectus (as amended or supplemented, if amended or supplemented) in any lawful manner contemplated by the Plan in connection with the sale of the Shares by the Agent.
(f) The Company and the Bank will comply with any and all material terms, conditions, requirements and provisions with respect to the Offering, and the transactions contemplated thereby, imposed by the Commission, the Agencies or the Conversion Regulations or the BHC ActHOLA, and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations to be complied with prior to or subsequent to the Closing Date and when the Prospectus is required to be delivered, and during such time period the Company and the Bank will comply, at their own expense, with all material requirements imposed upon them by the Commission, the Agencies or the Conversion Regulations, the BHC Act HOLA and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, including, without limitation, Rule 10b-5 under the 1934 Act, in each case as from time to time in force, so far as necessary to permit the continuance of sales or dealing in the Common Stock during such period in accordance with the provisions hereof and the Prospectus.
(g) If, at any time during the period when the Prospectus relating to the Shares is required to be delivered, any event relating to or affecting the Company or the Bank shall occur, as a result of which it is necessary or appropriate, in the opinion of counsel for the Company and the Bank or in the reasonable opinion of the Agent's counsel, to amend or supplement the Registration Statement or Prospectus in order to make the Registration Statement or Prospectus not misleading in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, the Company and the Bank will immediately so inform the Agent and prepare and file, at their own expense, with the Commission and the Agencies and furnish to the Agent a reasonable number of copies of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or Prospectus (in form and substance reasonably satisfactory to the Agent and its counsel after a reasonable time for review) which will amend or supplement the Registration Statement or Prospectus so that as amended or supplemented it will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading. For the purpose of this Agreement, the Company and the Bank each will timely furnish to the Agent such information with respect to itself as the Agent may from time to time reasonably request.
(h) The Company and the Bank will take all necessary actions, in cooperating with the Agent, and furnish to whomever the Agent may direct, such information as may be required to qualify or register the Shares for offering and sale by the Company or to exempt such Shares from registration, or to exempt the Company as a broker-dealer and its officers, directors and employees as broker-dealers or agents under the applicable securities or blue sky laws of such jurisdictions in which the Shares are required under the Conversion Regulations to be sold or as the Agent and the Company and the Bank may reasonably agree upon; provided, however, that the Company shall not be obligated to file any general consent to service of process, to qualify to do business in any jurisdiction in which it is not so qualified, or to register its directors or officers as brokers, dealers, salesmen or agents in any jurisdiction. In each jurisdiction where any of the Shares shall have been qualified or registered as above provided, the Company will make and file such statements and reports in each fiscal period as are or may be required by the laws of such jurisdiction.
(i) The Bank shall duly establish and maintain the liquidation account for the benefit of Eligible Account Holders and Supplemental Eligible Account Holders in accordance with the requirements of the Conversion Regulations, and such Eligible Account Holders and Supplemental Eligible Account Holders who continue to maintain their savings accounts in the Bank will have an inchoate interest in their pro rata portion of the liquidation account, which shall have a priority superior to that of the holders of the Shares in the event of a complete liquidation of the Bank.
(j) The Company and the Bank will not sell or issue, contract to sell or otherwise dispose of, for a period of 180 days after the Closing Date, without the Agent's prior written consent, any Common Stock other than the Shares or other than in connection with any plan or arrangement described in the Prospectus, including existing stock benefit plans.
(k) The Company shall register its Common Stock under Section 12(g) of the 1934 Act on or prior to the Closing Date pursuant to the Plan and shall request that such registration be effective prior to or upon completion of the Offering. The Company shall maintain the effectiveness of such registration for not less than three years or such shorter period as may be required by the Agencies.
(l) During the period during which the Company's Common Stock is registered under the 1934 Act or for three years from the date hereof, whichever period is greater, the Company will furnish to its shareholders as soon as practicable after the end of each fiscal year an annual report of the Company (including a consolidated balance sheet and statements of consolidated income, shareholders' equity and cash flows of the Company and its subsidiaries as at the end of and for such year, certified by independent public accountants in accordance with Regulation S-X under the 1933 Act and the 1934 Act).
(m) During the period of three years from the date hereof, the Company will furnish to the Agent: (i) as soon as practicable after such information is publicly available, a copy of each report of the Company furnished to or filed with the Commission under the 1934 Act or any national securities exchange or system on which any class of securities of the Company is listed or quoted (including, but not limited to, reports on Forms 10-KSB, 10-QSB and 8-K and all proxy statements and annual reports to stockholders), (ii) a copy of each other non-confidential report of the Company mailed to its stockholders or filed with the Commission, the Agencies or any other supervisory or regulatory authority or any national securities exchange or system on which any class of securities of the Company is listed or quoted, each press release and material news items and additional documents and information with respect to the Company or the Bank as the Agent may reasonably request; and (iii) from time to time, such other nonconfidential information concerning the Company or the Bank as the Agent may reasonably request.
(n) The Company and the Bank will use the net proceeds from the sale of the Shares in the manner set forth in the Prospectus under the caption "How We Intend to Use the Proceeds."
(o) Other than as permitted by the Conversion Regulations, the BHC ActHOLA, the 1933 Act, the 1933 Act Regulations, and the laws of any state in which the Shares are registered or qualified for sale or exempt from registration, neither the Company nor the Bank will distribute any prospectus, offering circular or other offering material in connection with the offer and sale of the Shares.
(p) The Company will use its best efforts to (i) encourage and assist a market maker to establish and maintain a market for the Shares and (ii) list and maintain quotation of the Shares on the OTC Bulletin Board effective on or prior to the Closing Date.
(q) The Bank will maintain appropriate arrangements for depositing all funds received from persons mailing subscriptions for or orders to purchase Shares in the Offering on an interest-bearing basis at the rate described in the Prospectus until the Closing Date and satisfaction of all conditions precedent to the release of the Bank's obligation to refund payments received from persons subscribing for or ordering Shares in the Offering in accordance with the Plan and as described in the Prospectus or until refunds of such funds have been made to the persons entitled thereto or withdrawal authorizations canceled in accordance with the Plan and as described in the Prospectus. The Bank will maintain such records of all funds received to permit the funds of each subscriber to be separately insured by the FDIC (to the maximum extent allowable) and to enable the Bank to make the appropriate refunds of such funds in the event that such refunds are required to be made in accordance with the Plan and as described in the Prospectus.
(r) The Company and the Bank will take such actions and furnish such information as are reasonably requested by the Agent in order for the Agent to ensure compliance with the NASD's "Interpretation Relating to Free Riding and Withholding."
(s) Neither the Company nor the Bank will amend the Plan without notifying the Agent prior thereto.
(t) The Company shall assist the Agent, if necessary, in connection with the allocation of the Shares in the event of an oversubscription and shall provide the Agent with any information necessary to assist the Company in allocating the Shares in such event and such information shall be accurate and reliable in all material respects.
(u) Prior to the Closing Date, the Company and the Bank will inform the Agent of any event or circumstances of which it is aware as a result of which the Registration Statement and/or Prospectus, as then amended or supplemented, would contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading.
(v) Subsequent to the date the Registration Statement is declared effective by the Commission and prior to the Closing Date, except as otherwise may be indicated or contemplated therein or set forth in an amendment or supplement thereto, neither the Company nor the Bank will have: (i) issued any securities or incurred any liability or obligation, direct or contingent, for borrowed money, except borrowings from the same or similar sources indicated in the Prospectus in the ordinary course of its business, or (ii) entered into any transaction which is material in light of the business and properties of the Company and the Bank, taken as a whole.
(w) The Company will promptly take all necessary action to register as a bank savings and loan holding company under the BHC ActHOLA.
(x) The facts and representations provided to Jenkens & Xxxxxxxxx by Elixx, Xatx xx the Bank and the Company and upon which Xxxxxxx & Xxxxxxxxx will Elixx, Xatx xxll base its opinion under Section 8(c)(1) are and will be truthful, accurate and complete.
Appears in 1 contract
Covenants of the Company and the Bank. The Company and the Bank hereby covenant, jointly and severally covenant severally, with the Agent Underwriter as follows:
(a) The Company will notadvise the Underwriter promptly upon receiving notice of the issuance by any regulatory authority of any stop order with respect to the offering of the Securities or of the institution of any proceeding for that purpose, at will use its reasonable best efforts to prevent the issuance of any time after stop order and, should a stop order be issued, to obtain as soon as possible the date lifting thereof. The Company will notify the Registration Statement is declared effective, file Underwriter promptly of any request by any regulatory authority for amendment of or supplement to the Registration Statement without providing the Agent Prospectus or for additional information, and its counsel an opportunity to review such will not file any amendment of or supplement to the Prospectus of which the Underwriter has not been furnished a copy prior to the filing thereof or file any such amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably objectUnderwriter has objected in writing to the Company.
(b) Neither The Company will deliver to the Bank nor Underwriter one signed copy and two conformed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein), and from time to time and without charge such number of copies of the Prospectus as the Underwriter may reasonably request, which Prospectus the Company will, at any time after authorizes the Conversion Application and Holding Company Application are approved by Underwriter to use in connection with the Agencies, file any amendment or supplement to such Applications without providing sale of the Agent and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably objectSecurities.
(c) The Company and the Bank will use their best efforts to cause any post-effective amendment furnish to the Registration Statement to be declared effective Underwriter copies of all written communications by the Commission and any post-approval amendment to the Conversion Application and Holding Company Application to be approved by the Agencies and will immediately upon receipt of any information concerning the events listed below notify the Agent: (i) when the Registration Statement, as amended, has become effective; (ii) when the Conversion Application and Holding Company Application, as amended have been approved by the Agencies; (iii) any comments from the Commission, the Agencies or any other governmental entity with respect to the Offering or the transactions contemplated by this Agreement; (iv) of the request by the Commission, the Agencies or any other governmental entity for any amendment or supplement to the Registration Statement, the Conversion Application and the Holding Company Application or for additional information; (v) of the issuance by the Commission, the Agencies or any other governmental entity of any order or other action suspending the Offering or the use of the Registration Statement or the Prospectus or any other filing on behalf of the Company or the Bank under the Conversion Regulations, BHC Act or other applicable law, or the threat of any such action; (vi) the issuance by the Commission, the Agencies or any authority of any stop order suspending the effectiveness of the Registration Statement or of the initiation or threat of initiation or threat of any proceedings for that purpose; or (vii) of the occurrence of any event mentioned in paragraph (g) below. The Company and the Bank will make every reasonable effort (i) to prevent the issuance by the Commission, the Agencies or any state authority of any such order and, if any such order shall at any time be issued and (ii) to obtain the lifting thereof at the earliest possible time.
(d) The Company and the Bank will deliver to the Agent and to its counsel two conformed copies of the Registration Statement, the Conversion Application and the Holding Company Application, as originally filed, and of each amendment or supplement thereto, including all exhibits. Further, the Company and the Bank will deliver such additional copies of the foregoing documents to counsel to the Agent as may be required for any NASD and "blue sky" filings.
(e) The Company and the Bank will furnish to the Agent, from time to time during the period when the Prospectus (or any later prospectus related to this offering) is required to be delivered under the 1933 Act or the Securities Exchange Act of 1934 (the "1934 Act"), such number of copies of such Prospectus (as amended or supplemented) as the Agent may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the rules and regulations promulgated under the 1934 Act (the "1934 Act Regulations"). The Company authorizes the Agent to use the Prospectus (as amended or supplemented, if amended or supplemented) in any lawful manner contemplated by the Plan in connection with the sale of the Shares by the Agent.
(f) The Company and the Bank will comply with any and all material terms, conditions, requirements and provisions with respect to the Offering, and the transactions contemplated thereby, imposed by the Commission, the Agencies or the Conversion Regulations or the BHC Act, and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations to be complied with prior to or subsequent to the Closing Date and when the Prospectus is required to be delivered, and during such time period the Company and the Bank will comply, at their own expense, with all material requirements imposed upon them by the Commission, the Agencies or the Conversion Regulations, the BHC Act and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulationsregulatory agency, including, without limitation, Rule 10b-5 under the 1934 ActCommission, in each case as from time FDIC or the Department, relating to time in force, so far as necessary to permit the continuance of sales or dealing in the Common Stock during such period in accordance with the provisions hereof Prospectus and the ProspectusSecurities.
(gd) If, at any time during the period when the Prospectus relating to the Shares is required to be delivered, If any event relating to or affecting the Company or the Bank circumstance shall occur, occur as a result of which it is necessary or appropriatenecessary, in the opinion of counsel for the Company and the Bank or in the reasonable opinion of the Agent's counselUnderwriter, to amend or supplement the Registration Statement or Prospectus in order to make the Registration Statement or Prospectus not misleading in the light of the circumstances existing at the time the Prospectus it is delivered to a purchaser, the Company and will forthwith amend or supplement the Bank will immediately so inform the Agent and prepare and file, at their own expense, with the Commission and the Agencies and furnish to the Agent a reasonable number of copies of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or Prospectus (in form and substance reasonably satisfactory to counsel for the Agent and its counsel after a reasonable time for reviewUnderwriter) which will amend or supplement the Registration Statement or Prospectus so that that, as so amended or supplemented it supplemented, the Prospectus will not contain 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 existing at the time the Prospectus it is delivered to a purchaser, not misleading, and the Company will furnish to the Underwriter a reasonable number of copies of such amendment or supplement. For the purpose of this Agreementsubsection, the Company and the Bank each will timely furnish to the Agent such information with respect to itself as the Agent Underwriter may from time to time reasonably request.
(he) The Company and the Bank will take all necessary actionsaction, in cooperating cooperation with the AgentUnderwriter, and furnish to whomever the Agent may direct, such information as may be required to qualify or register the Shares Securities for offering and sale by the Company or to exempt such Shares from registration, or to exempt the Company as a broker-dealer and its officers, directors and employees as broker-dealers or agents under the applicable securities or blue sky laws of such states of the United States and other jurisdictions in which the Shares are required under the Conversion Regulations to be sold or and as the Agent Underwriter and the Company and the Bank may reasonably agree uponhave agreed; provided, however, that the Company shall not be obligated to file any general consent to service of process, to qualify to do business in any jurisdiction in which it is not so qualified, process or to register its directors or officers as brokers, dealers, salesmen or agents in any jurisdiction. In each jurisdiction where any of in which the Shares shall Securities have been qualified or registered as above providedso qualified, the Company will make and file such statements and reports in each fiscal period as are or may be required by the laws of such jurisdictionjurisdiction to continue such qualification in effect for a period of not less than one year from the date of the Prospectus.
(f) The Company will make generally available to its security holders as soon as practicable, but not later than 60 days after the close of the period covered thereby, an earnings statement covering a twelve-month period beginning not later than the first day of the Company's fiscal quarter next following the date of the Prospectus.
(g) During the period ending on the third anniversary of the expiration of the fiscal year during which the closing of the transactions contemplated hereby occurs, the Company will furnish to its stockholders as soon as practicable after the end of each such fiscal year an annual report (including consolidated statements of financial condition and statements of income, stockholders' equity and cash flows of the Company, certified by independent public accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the date of the Prospectus), summary financial information of the Company for such quarter in reasonable detail. In addition, such annual report and quarterly consolidated summary financial information shall be made public through the issuance of appropriate press releases at the same time or prior to the time of the furnishing thereof to stockholders of the Company.
(h) During the period ending on the third anniversary of the expiration of the fiscal year during which the closing of the transactions contemplated hereby occurs, the Company will furnish to the Underwriter (i) as soon as available, a copy of each report or other document of the Company furnished generally to stockholders of the Company or furnished to or filed with any national securities exchange or system on which any class of securities of the Company is listed, and (ii) from time to time, such other information concerning the Company as the Underwriter may reasonably request.
(i) The Bank shall duly establish and maintain Company will use the liquidation account for net proceeds received by it from the benefit of Eligible Account Holders and Supplemental Eligible Account Holders in accordance with the requirements sale of the Conversion Regulations, and such Eligible Account Holders and Supplemental Eligible Account Holders who continue to maintain their savings accounts Securities in the Bank will have an inchoate interest in their pro rata portion of the liquidation account, which shall have a priority superior to that of the holders of the Shares manner specified in the event Prospectus under "Use of a complete liquidation of the BankProceeds."
(j) The Company will file with The Nasdaq Stock Market, Inc. all documents and notices required by the Bank Nasdaq National Market of companies that have issued securities that are traded in the over-the-counter market and quotations for which are reported by the Nasdaq National Market.
(k) The Company will take such actions and furnish such information as are reasonably requested by the Underwriter in order for the Underwriter to ensure compliance with the National Association of Securities Dealers, Inc.'s ("NASD") "Interpretation Relating to Free-Riding and Withholding."
(l) The Company will not sell or issue, contract to sell or otherwise dispose of, for a period of 180 days after the Closing DateTime, without the AgentUnderwriter's prior written consent, any shares of Common Stock other than the Shares Securities or other than in connection with any plan or arrangement described in the Prospectus, including existing stock benefit plans.
(k) The Company shall register its Common Stock under Section 12(g) of the 1934 Act on or prior to the Closing Date pursuant to the Plan and shall request that such registration be effective prior to or upon completion of the Offering. The Company shall maintain the effectiveness of such registration for not less than three years or such shorter period as may be required by the Agencies.
(l) During the period during which the Company's Common Stock is registered under the 1934 Act or for three years from the date hereof, whichever period is greater, the Company will furnish to its shareholders as soon as practicable after the end of each fiscal year an annual report of the Company (including a consolidated balance sheet and statements of consolidated income, shareholders' equity and cash flows of the Company and its subsidiaries as at the end of and for such year, certified by independent public accountants in accordance with Regulation S-X under the 1933 Act and the 1934 Act).
(m) During the period of three years from the date hereof, the Company will furnish to the Agent: (i) as soon as practicable after such information is publicly available, a copy of each report of the Company furnished to or filed with the Commission under the 1934 Act or any national securities exchange or system on which any class of securities of the Company is listed or quoted (including, but not limited to, reports on Forms 10-KSB, 10-QSB and 8-K and all proxy statements and annual reports to stockholders), (ii) a copy of each other non-confidential report of the Company mailed to its stockholders or filed with the Commission, the Agencies or any other supervisory or regulatory authority or any national securities exchange or system on which any class of securities of the Company is listed or quoted, each press release and material news items and additional documents and information with respect to the Company or the Bank as the Agent may reasonably request; and (iii) from time to time, such other nonconfidential information concerning the Company or the Bank as the Agent may reasonably request.
(n) The Company and the Bank will use the net proceeds from the sale of the Shares in the manner set forth in the Prospectus under the caption "How We Intend to Use the Proceeds."
(o) Other than as permitted by the Conversion Regulations, the BHC Act, the 1933 Act, the 1933 Act Regulations, and the laws of any state in which the Shares are registered or qualified for sale or exempt from registration, neither the Company nor the Bank will distribute any prospectus, offering circular or other offering material in connection with the offer and sale of the Shares.
(p) The Company will use its best efforts to (i) encourage and assist a market maker to establish and maintain a market for the Shares and (ii) list and maintain quotation of the Shares on the OTC Bulletin Board effective on or prior to the Closing Date.
(q) The Bank will maintain appropriate arrangements for depositing all funds received from persons mailing subscriptions for or orders to purchase Shares in the Offering on an interest-bearing basis at the rate described in the Prospectus until the Closing Date and satisfaction of all conditions precedent to the release of the Bank's obligation to refund payments received from persons subscribing for or ordering Shares in the Offering in accordance with the Plan and as described in the Prospectus or until refunds of such funds have been made to the persons entitled thereto or withdrawal authorizations canceled in accordance with the Plan and as described in the Prospectus. The Bank will maintain such records of all funds received to permit the funds of each subscriber to be separately insured by the FDIC (to the maximum extent allowable) and to enable the Bank to make the appropriate refunds of such funds in the event that such refunds are required to be made in accordance with the Plan and as described in the Prospectus.
(r) The Company and the Bank will take such actions and furnish such information as are reasonably requested by the Agent in order for the Agent to ensure compliance with the NASD's "Interpretation Relating to Free Riding and Withholding."
(s) Neither the Company nor the Bank will amend the Plan without notifying the Agent prior thereto.
(t) The Company shall assist the Agent, if necessary, in connection with the allocation of the Shares in the event of an oversubscription and shall provide the Agent with any information necessary to assist the Company in allocating the Shares in such event and such information shall be accurate and reliable in all material respects.
(u) Prior to the Closing Date, the Company and the Bank will inform the Agent of any event or circumstances of which it is aware as a result of which the Registration Statement and/or Prospectus, as then amended or supplemented, would contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading.
(v) Subsequent to the date the Registration Statement is declared effective by the Commission and prior to the Closing Date, except as otherwise may be indicated or contemplated therein or set forth in an amendment or supplement thereto, neither the Company nor the Bank will have: (i) issued any securities or incurred any liability or obligation, direct or contingent, for borrowed money, except borrowings from the same or similar sources indicated in the Prospectus in the ordinary course of its business, or (ii) entered into any transaction which is material in light of the business and properties of the Company and the Bank, taken as a whole.
(w) The Company will promptly take all necessary action to register as a bank holding company under the BHC Act.
(x) The facts and representations provided to Jenkens & Xxxxxxxxx by the Bank and the Company and upon which Xxxxxxx & Xxxxxxxxx will base its opinion under Section 8(c)(1) are and will be truthful, accurate and complete.
Appears in 1 contract
Covenants of the Company and the Bank. The Company and the Bank hereby jointly and severally covenant with each of the Agent as follows:
(a) The Company has filed the Registration Statement with the Commission. The Company will not, at any time after the date the Registration Statement is declared effective, file any amendment or supplement to the Registration Statement without providing the Agent and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably object.
(b) Neither The Bank has filed the Conversion Application with the OTS. The Bank nor the Company willwill not, at any time after the Conversion Application and Holding Company Application are is approved by by, the AgenciesOTS, file any amendment or supplement to such Applications Conversion Application without providing the Agent and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably object.
(c) The Company has filed the Holding Company Application with the OTS. The Company will not, at any time before the Holding Company Application is approved by the OTS, file any amendment or 17 18 supplement to such Holding Company Application without providing the Agent and its counsel an opportunity to review the nonconfidential portions of such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably object.
(d) The Company and the Bank will use their best efforts to cause any post-effective amendment to the Registration Statement to be declared effective by the Commission and any post-approval effective amendment to the Conversion Application and Holding Company Application to be approved by the Agencies OTS and will immediately upon receipt of any information concerning the events listed below notify the Agent: (i) when the Registration Statement, as amended, has become effective; (ii) when the Conversion Application and Holding Company Application, as amended have amended, has been approved by the AgenciesOTS; (iii) any comments from the Commission, the Agencies OTS or any other governmental entity with respect to the Offering Conversion or the transactions contemplated by this Agreement; (iv) of the request by the Commission, the Agencies OTS or any other governmental entity for any amendment or supplement to the Registration Statement, the Conversion Application and the Holding Company Application or for additional information; (v) of the issuance by the Commission, the Agencies OTS or any other governmental entity of any order or other action suspending the Offering or the use of the Registration Statement or the Prospectus or any other filing of the Company or the Bank under the Conversion Regulations, BHC Act or other applicable law, or the threat of any such action; (vi) the issuance by the Commission, the Agencies OTS or any authority of any stop order suspending the effectiveness of the Registration Statement or of the initiation or threat of initiation or threat of any proceedings for that purpose; or (vii) of the occurrence of any event mentioned in paragraph (gh) below. The Company and the Bank will make every reasonable effort (i) to prevent the issuance by the Commission, the Agencies OTS or any state authority of any such order and, if any such order shall at any time be issued and issued, (ii) to obtain the lifting thereof at the earliest possible time.
(de) The Company and the Bank will deliver to the Agent and to its counsel two conformed copies of the Registration Statement, the Conversion Application and the Holding Company Application, as originally filed, filed and of each amendment or supplement thereto, including all exhibits. Further, the Company and the Bank will deliver such additional copies of the foregoing documents to counsel to the Agent as may be required for any NASD and "blue sky" filings.
(ef) The Company and the Bank will furnish to the Agent, from time to time during the period when the Prospectus (or any later prospectus related to this offering) is required to be delivered under the 1933 Act or the Securities Exchange Act of 1934 (the "1934 Act"), such number of copies of such Prospectus (as amended or supplemented) as the Agent may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the rules and regulations promulgated under the 1934 Act (the "1934 Act Regulations"). The Company authorizes the Agent to use the Prospectus (as amended or supplemented, if amended or supplemented) in any lawful manner contemplated by the Plan in connection with the sale of the Shares by the Agent.
(fg) The Company and the Bank will comply with any and all material terms, conditions, requirements and provisions with respect to the Offering, Conversion and the transactions contemplated thereby, thereby imposed by the Commission, the Agencies OTS or the Conversion Regulations or the BHC ActRegulations, and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations to be complied with prior to or subsequent to the Closing Date and when the Prospectus is required to be delivered, and during such time period the Company and the Bank will comply, at their own expense, with all material requirements imposed upon them by the Commission, the Agencies OTS or the Conversion Regulations, the BHC Act and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, including, without limitation, Rule 10b-5 under the 1934 Act, in each case as from time to time in force, so far as necessary to permit the continuance of sales or dealing in the shares of Common Stock during such period in accordance with the provisions hereof and the Prospectus.
(gh) If, at any time during the period when the Prospectus relating to the Shares is required to be delivered, any event relating to or affecting the Company or Company, the Bank or its subsidiary shall occur, as a result of which it is necessary or appropriate, in the opinion of counsel for the Company and the Bank or in the reasonable opinion of the Agent's counsel, to amend or supplement the Registration Statement or Prospectus in order to make the Registration Statement or Prospectus not misleading in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, the Company and the Bank will immediately so inform the Agent and prepare and file, at their own expense, with the Commission and the Agencies OTS and furnish to the Agent a reasonable number of copies of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or Prospectus (in form and substance reasonably satisfactory to the Agent and its counsel after a reasonable time for review) which will amend or supplement the Registration Statement or Prospectus so that as amended or supplemented it will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading. For the purpose of this Agreement, the Company and the Bank each will timely furnish to the Agent such information with respect to itself as the Agent may from time to time reasonably request.
(h) The Company and the Bank will take all necessary actions, in cooperating with the Agent, and furnish to whomever the Agent may direct, such information as may be required to qualify or register the Shares for offering and sale by the Company or to exempt such Shares from registration, or to exempt the Company as a broker-dealer and its officers, directors and employees as broker-dealers or agents under the applicable securities or blue sky laws of such jurisdictions in which the Shares are required under the Conversion Regulations to be sold or as the Agent and the Company and the Bank may reasonably agree upon; provided, however, that the Company shall not be obligated to file any general consent to service of process, to qualify to do business in any jurisdiction in which it is not so qualified, or to register its directors or officers as brokers, dealers, salesmen or agents in any jurisdiction. In each jurisdiction where any of the Shares shall have been qualified or registered as above provided, the Company will make and file such statements and reports in each fiscal period as are or may be required by the laws of such jurisdiction.
(i) The Bank shall duly establish and maintain the liquidation account for the benefit of Eligible Account Holders and Supplemental Eligible Account Holders in accordance with the requirements of the Conversion Regulations, and such Eligible Account Holders and Supplemental Eligible Account Holders who continue to maintain their savings accounts in the Bank will have an inchoate interest in their pro rata portion of the liquidation account, which shall have a priority superior to that of the holders of the Shares in the event of a complete liquidation of the Bank.
(j) The Company and the Bank will not sell or issue, contract to sell or otherwise dispose of, for a period of 180 days after the Closing Date, without the Agent's prior written consent, any Common Stock other than the Shares or other than in connection with any plan or arrangement described in the Prospectus, including existing stock benefit plans.
(k) The Company shall register its Common Stock under Section 12(g) of the 1934 Act on or prior to the Closing Date pursuant to the Plan and shall request that such registration be effective prior to or upon completion of the Offering. The Company shall maintain the effectiveness of such registration for not less than three years or such shorter period as may be required by the Agencies.
(l) During the period during which the Company's Common Stock is registered under the 1934 Act or for three years from the date hereof, whichever period is greater, the Company will furnish to its shareholders as soon as practicable after the end of each fiscal year an annual report of the Company (including a consolidated balance sheet and statements of consolidated income, shareholders' equity and cash flows of the Company and its subsidiaries as at the end of and for such year, certified by independent public accountants in accordance with Regulation S-X under the 1933 Act and the 1934 Act).
(m) During the period of three years from the date hereof, the Company will furnish to the Agent: (i) as soon as practicable after such information is publicly available, a copy of each report of the Company furnished to or filed with the Commission under the 1934 Act or any national securities exchange or system on which any class of securities of the Company is listed or quoted (including, but not limited to, reports on Forms 10-KSB, 10-QSB and 8-K and all proxy statements and annual reports to stockholders), (ii) a copy of each other non-confidential report of the Company mailed to its stockholders or filed with the Commission, the Agencies or any other supervisory or regulatory authority or any national securities exchange or system on which any class of securities of the Company is listed or quoted, each press release and material news items and additional documents and information with respect to the Company or the Bank as the Agent may reasonably request; and (iii) from time to time, such other nonconfidential information concerning the Company or the Bank as the Agent may reasonably request.
(n) The Company and the Bank will use the net proceeds from the sale of the Shares in the manner set forth in the Prospectus under the caption "How We Intend to Use the Proceeds."
(o) Other than as permitted by the Conversion Regulations, the BHC Act, the 1933 Act, the 1933 Act Regulations, and the laws of any state in which the Shares are registered or qualified for sale or exempt from registration, neither the Company nor the Bank will distribute any prospectus, offering circular or other offering material in connection with the offer and sale of the Shares.
(p) The Company will use its best efforts to (i) encourage and assist a market maker to establish and maintain a market for the Shares and (ii) list and maintain quotation of the Shares on the OTC Bulletin Board effective on or prior to the Closing Date.
(q) The Bank will maintain appropriate arrangements for depositing all funds received from persons mailing subscriptions for or orders to purchase Shares in the Offering on an interest-bearing basis at the rate described in the Prospectus until the Closing Date and satisfaction of all conditions precedent to the release of the Bank's obligation to refund payments received from persons subscribing for or ordering Shares in the Offering in accordance with the Plan and as described in the Prospectus or until refunds of such funds have been made to the persons entitled thereto or withdrawal authorizations canceled in accordance with the Plan and as described in the Prospectus. The Bank will maintain such records of all funds received to permit the funds of each subscriber to be separately insured by the FDIC (to the maximum extent allowable) and to enable the Bank to make the appropriate refunds of such funds in the event that such refunds are required to be made in accordance with the Plan and as described in the Prospectus.
(r) The Company and the Bank will take such actions and furnish such information as are reasonably requested by the Agent in order for the Agent to ensure compliance with the NASD's "Interpretation Relating to Free Riding and Withholding."
(s) Neither the Company nor the Bank will amend the Plan without notifying the Agent prior thereto.
(t) The Company shall assist the Agent, if necessary, in connection with the allocation of the Shares in the event of an oversubscription and shall provide the Agent with any information necessary to assist the Company in allocating the Shares in such event and such information shall be accurate and reliable in all material respects.
(u) Prior to the Closing Date, the Company and the Bank will inform the Agent of any event or circumstances of which it is aware as a result of which the Registration Statement and/or Prospectus, as then amended or supplemented, would contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading.
(v) Subsequent to the date the Registration Statement is declared effective by the Commission and prior to the Closing Date, except as otherwise may be indicated or contemplated therein or set forth in an amendment or supplement thereto, neither the Company nor the Bank will have: (i) issued any securities or incurred any liability or obligation, direct or contingent, for borrowed money, except borrowings from the same or similar sources indicated in the Prospectus in the ordinary course of its business, or (ii) entered into any transaction which is material in light of the business and properties of the Company and the Bank, taken as a whole.
(w) The Company will promptly take all necessary action to register as a bank holding company under the BHC Act.
(x) The facts and representations provided to Jenkens & Xxxxxxxxx by the Bank and the Company and upon which Xxxxxxx & Xxxxxxxxx will base its opinion under Section 8(c)(1) are and will be truthful, accurate and complete.the
Appears in 1 contract
Covenants of the Company and the Bank. The Company and the Bank hereby jointly and severally covenant with the Agent as follows:
(a) The Company and the Bank will notprepare and file such amendments or supplements to the Registration Statement, at any time after the date Prospectus, the Conversion Application and the Proxy Statement, the Prospectus, the Conversion Application and the Proxy Statement as may hereafter be required by the 1933 Act Regulations or the Conversion Regulations or as may hereafter be reasonably requested by the Agent. Following completion of the Subscription/Community Offering, in the event of a Syndicated Community Offering, the Company and the Bank will (i) promptly prepare and file with the Commission a post-effective amendment to the Registration Statement relating to the results of the Subscription/Community Offering, any additional information with respect to the proposed plan of distribution and any revised pricing information or (ii) if no such post- effective amendment is declared effectiverequired, will file with, or mail for filing to, the Commission a prospectus or prospectus supplement containing information relating to the results of the Subscription/Community Offering and pricing information pursuant to Rule 424(c) of the 1933 Act Regulations, in either case in a form acceptable to the Agent. The Company and the Bank will notify the Agent immediately, and confirm the notice in writing, (i) of the effectiveness of any post-effective amendment of the Registration Statement, the filing of any supplement to the Prospectus or the filing of any amendment to the Conversion Application, (ii) of the receipt of any comments from the Superintendent, the FDIC, the OTS or the Commission with respect to the transactions contemplated by this Agreement or the Plan, (iii) of any request by the Commission, the Superintendent, the FDIC or the OTS for any amendment to the Registration Statement or the Conversion Application or the Holding Company Application or any amendment or supplement to the Prospectus or for additional information, (iv) of the issuance by the Superintendent or the FDIC of any order suspending the Offerings or the use of the Prospectus or the initiation of any proceedings for that purpose, (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement without providing or the initiation of any proceedings for that purpose, and (vi) of the receipt of any notice with respect to the suspension of any qualification of the Securities for offering or sale in any jurisdiction. The Company and the Bank will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) The Company and the Bank will give the Agent notice of its intention to file or prepare any amendment to the Conversion Application, Holding Company Application or Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised prospectus which the Company proposes for use in connection with the Syndicated Community Offering of the Securities which differs from the prospectus on file at the Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the 1933 Act Regulations), will furnish the Agent with copies of any such amendment or supplement a reasonable amount of time prior to such proposed filing or use, as the case may be, and its counsel an opportunity to review will not file any such amendment or supplement or file use any amendment or supplement such prospectus to which amendment or supplement the Agent or its counsel shall reasonably object.
(b) Neither the Bank nor the Company will, at any time after the Conversion Application and Holding Company Application are approved by the Agencies, file any amendment or supplement to such Applications without providing for the Agent and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably may object.
(c) The Company and the Bank will use their best efforts to cause any post-effective amendment deliver to the Registration Statement to be declared effective by the Commission Agent as many signed copies and any post-approval amendment to the Conversion Application and Holding Company Application to be approved by the Agencies and will immediately upon receipt as many conformed copies of any information concerning the events listed below notify the Agent: (i) when the Registration Statement, as amended, has become effective; (ii) when the Conversion Application and Holding Company Application, as amended have been approved by the Agencies; (iii) any comments from the Commission, the Agencies or any other governmental entity with respect to the Offering or the transactions contemplated by this Agreement; (iv) of the request by the Commission, the Agencies or any other governmental entity for any amendment or supplement to the Registration Statement, the Conversion Application and the Holding Company Application or for additional information; (v) of the issuance by the Commission, the Agencies or any other governmental entity of any order or other action suspending the Offering or the use of the Registration Statement or the Prospectus or any other filing of the Company or the Bank under the Conversion Regulations, BHC Act or other applicable law, or the threat of any such action; (vi) the issuance by the Commission, the Agencies or any authority of any stop order suspending the effectiveness of the Registration Statement or of the initiation or threat of initiation or threat of any proceedings for that purpose; or (vii) of the occurrence of any event mentioned in paragraph (g) below. The Company and the Bank will make every reasonable effort (i) to prevent the issuance by the Commission, the Agencies or any state authority of any such order and, if any such order shall at any time be issued and (ii) to obtain the lifting thereof at the earliest possible time.
(d) The Company and the Bank will deliver to the Agent and to its counsel two conformed copies of the Registration Statement, the Conversion Application and the Holding Company Application, as originally filed, filed and of each amendment thereto (including exhibits filed therewith or supplement thereto, including all exhibits. Further, the Company and the Bank will deliver such additional copies of the foregoing documents to counsel to the Agent as may be required for any NASD and "blue sky" filings.
(e) The Company and the Bank will furnish to the Agent, from time to time during the period when the Prospectus (or any later prospectus related to this offering) is required to be delivered under the 1933 Act or the Securities Exchange Act of 1934 (the "1934 Act"), such number of copies of such Prospectus (as amended or supplementedincorporated by reference therein) as the Agent may reasonably request for request, and from time to time such number of copies of the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the rules and regulations promulgated under the 1934 Act (the "1934 Act Regulations"). The Company authorizes Prospectus as the Agent to use the Prospectus (as amended or supplemented, if amended or supplemented) in any lawful manner contemplated by the Plan in connection with the sale of the Shares by the Agentmay reasonably request.
(fd) The Company and During the Bank will comply with any and all material terms, conditions, requirements and provisions with respect to the Offering, and the transactions contemplated thereby, imposed by the Commission, the Agencies or the Conversion Regulations or the BHC Act, and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations to be complied with prior to or subsequent to the Closing Date and period when the Prospectus is required to be delivered, and during such time period the Company and the Bank will comply, at their own expense, with all material requirements imposed upon them by the CommissionSuperintendent and the FDIC, by the Agencies or the applicable Conversion Regulations, the BHC Act as from time to time in force, and by the 1933 Act, the 1933 Act Regulations, the Securities Exchange Act of 1934, as amended (the "1934 Act Act") and the 1934 Act Regulationsrules and regulations of the Commission promulgated thereunder, including, without limitation, Rule 10b-5 10b-6 under the 1934 Act, in each case as from time to time in force, so far as necessary to permit the continuance of sales or dealing in the shares of Common Stock during such period in accordance with the provisions hereof and the Prospectus.
(ge) If, at any time during the period when the Prospectus relating to the Shares is required to be delivered, If any event relating to or affecting the Company or the Bank circumstance shall occur, occur as a result of which it is necessary or appropriatenecessary, in the opinion of counsel for the Company and the Bank or in the reasonable opinion of the Agent's counsel, to amend or supplement the Registration Statement or Prospectus in order to make the Registration Statement or Prospectus not misleading in the light of the circumstances existing at the time the Prospectus it is delivered to a purchaser, the Company and the Bank will immediately so inform forthwith amend or supplement the Agent and prepare and file, at their own expense, with the Commission and the Agencies and furnish to the Agent a reasonable number of copies of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or Prospectus (in form and substance reasonably satisfactory to counsel for the Agent and its counsel after a reasonable time for reviewAgent) which will amend or supplement the Registration Statement or Prospectus so that that, as so amended or supplemented it supplemented, the Prospectus will not contain 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 existing at the time the Prospectus it is delivered to a purchaser, not misleading, and the Company and the Bank will furnish to the Agent a reasonable number of copies of such amendment or supplement. For the purpose of this Agreementsubsection, the Company and the Bank will each will timely furnish to the Agent such information with respect to itself as the Agent may from time to time reasonably request.
(hf) The Company and the Bank will take all necessary actionsaction, in cooperating cooperation with the Agent, and furnish to whomever the Agent may direct, such information as may be required to qualify or register the Shares Securities for offering and sale by the Company or to exempt such Shares from registration, or to exempt the Company as a broker-dealer and its officers, directors and employees as broker-dealers or agents under the applicable securities or blue sky laws of such states of the United States and other jurisdictions in which the Shares are required under as the Conversion Regulations to be sold or may require and as the Agent and the Company and the Bank may reasonably agree uponhave agreed; provided, however, that neither the Company nor the Bank shall not be obligated to file any general consent to service of process, process or to qualify to do business as a foreign corporation in any jurisdiction in which it is not so qualified, or to register its directors or officers as brokers, dealers, salesmen or agents in any jurisdiction. In each jurisdiction where any of in which the Shares shall Securities have been qualified or registered as above providedso qualified, the Company and the Bank will make and file such statements and reports in each fiscal period as are or may be required by the laws of such jurisdictionjurisdiction to continue such qualification in effect for a period of not less than one year from the effective date of the Registration Statement.
(g) The Company authorizes Sandler X'Xxxxx and any Selected Dealer to act as agent of the Company in distributing the Prospectus to persons entitled to receive subscription rights and other persons having record addresses in the states or jurisdictions set forth in a survey of the securities or "blue sky" laws of the various jurisdictions in which the Offerings will be made (the "Blue Sky Survey").
(h) The Company will make generally available to its security holders as soon as practicable, but not later than 60 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering a twelve-month period beginning not later than the first day of the Company's fiscal quarter next following the "effective date" (as defined in said Rule 158) of the Registration Statement.
(i) The Bank shall duly establish and maintain the liquidation account for the benefit of Eligible Account Holders and Supplemental Eligible Account Holders in accordance with the requirements of the Conversion Regulations, and such Eligible Account Holders and Supplemental Eligible Account Holders who continue to maintain their savings accounts in the Bank will have an inchoate interest in their pro rata portion of the liquidation account, which shall have a priority superior to that of the holders of the Shares in the event of a complete liquidation of the Bank.
(j) The Company and the Bank will not sell or issue, contract to sell or otherwise dispose of, for a period of 180 days after the Closing Date, without the Agent's prior written consent, any Common Stock other than the Shares or other than in connection with any plan or arrangement described in the Prospectus, including existing stock benefit plans.
(k) The Company shall register its Common Stock under Section 12(g) of the 1934 Act on or prior to the Closing Date pursuant to the Plan and shall request that such registration be effective prior to or upon completion of the Offering. The Company shall maintain the effectiveness of such registration for not less than three years or such shorter period as may be required by the Agencies.
(l) During the period ending on the third anniversary of the expiration of the fiscal year during which the Company's Common Stock is registered under closing of the 1934 Act or for three years from the date hereof, whichever period is greatertransactions contemplated hereby occurs, the Company will furnish to its shareholders stockholders as soon as practicable after the end of each fiscal year in such period an annual report of the Company (including a consolidated balance sheet and statements of financial condition and consolidated statements of income, shareholdersstockholders' equity and cash flows of the Company Company, the Bank and its subsidiaries as at the end of and for such yearSubsidiaries, certified by independent public accountants accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year in accordance such period (beginning with Regulation S-X under the 1933 Act fiscal quarter ending after the effective date of the Registration Statement), consolidated summary financial information of the Company, the Bank and the 1934 Act)Subsidiaries for such quarter in reasonable detail. In addition, such annual report and quarterly consolidated summary financial information shall be made public through the issuance of appropriate press releases at the same time or prior to the time of the furnishing thereof to stockholders of the Company.
(mj) During the period ending on the third anniversary of three years from the date hereofexpiration of the fiscal year during which the closing of the transactions contemplated hereby occurs, the Company will furnish to the Agent: Agent (i) as soon as practicable after such information is publicly available, a copy of each report or other document of the Company furnished generally to stockholders of the Company or furnished to or filed with the Commission under the 1934 Act or any national securities exchange or system on which any class of securities of the Company is listed or quoted (including, but not limited to, reports on Forms 10-KSB, 10-QSB and 8-K and all proxy statements and annual reports to stockholders), (ii) a copy of each other non-confidential report of the Company mailed to its stockholders or filed with the Commission, the Agencies or any other supervisory or regulatory authority or any national securities exchange or system on which any class of securities of the Company is listed or quoted, each press release and material news items and additional documents and information with respect to the Company or the Bank as the Agent may reasonably request; and (iii) from time to time, such other nonconfidential information concerning the Company or the Bank as the Agent may reasonably request.
(nk) The Each of the Company and the Bank will use the net proceeds received by it from the sale of the Shares Securities and the purchase of the Common Stock by the Company, as the case may be, in the manner set forth specified in the Prospectus under the caption "How We Intend to Use the of Proceeds."" The Company and the Bank will conduct the Conversion (including the formation and operation of the Foundation) in all material respects in accordance with the Plan, the Conversion Regulations and all other applicable regulations, decisions and orders thereunder, including all applicable terms, requirements and conditions precedent to the Conversion imposed upon the Company or the Bank by the Superintendent, the FDIC or the OTS.
(ol) Other than The Company will file with the Commission such reports on Form SR as permitted by the Conversion Regulations, the BHC Act, the 1933 Act, may be required pursuant to Rule 463 of the 1933 Act Regulations.
(m) The Company will file a registration statement for the Common Stock under Section 12(g) of the 1934 Act prior to completion of the Offerings and will request that such registration statement be effective upon completion of the Conversion. The Company will maintain the effectiveness of such registration for not less than three years. The Company will file with the Nasdaq Stock Market, Inc. all documents and notices required by the laws Nasdaq Stock Market, Inc. of companies that have issued securities that are traded in the over-the-counter market and quotations for which are reported by the Nasdaq National Market.
(n) During the period beginning on the date hereof and ending on the later of the third anniversary of the Closing Time or the date on which the Agent receives full payment in satisfaction of any state in claim for indemnification or contribution to which the Shares are registered it may be entitled pursuant to Sections 6 or qualified for sale or exempt from registration7, respectively, neither the Company nor the Bank will distribute any prospectusshall, offering circular or other offering material in connection with without the offer and sale prior written consent of the SharesAgent, which consent shall not be unreasonably withheld, take or permit to be taken any action that could result in the Bank Common Stock or Bank Preferred Stock becoming subject to any security interest, mortgage, pledge, lien or encumbrance; provided, however, that this covenant shall be null and -------- ------- void if the Board of Governors of the Federal Reserve System, or any other federal agency having jurisdiction over the Bank, by regulation, policy statement or general or specific interpretive release or letter, permits indemnification of the Agent by the Bank as contemplated by Section 6(a) hereof.
(p) The Company will use its best efforts to (i) encourage and assist a market maker to establish and maintain a market for the Shares and (ii) list and maintain quotation of the Shares on the OTC Bulletin Board effective on or prior to the Closing Date.
(q) The Bank will maintain appropriate arrangements for depositing all funds received from persons mailing subscriptions for or orders to purchase Shares in the Offering on an interest-bearing basis at the rate described in the Prospectus until the Closing Date and satisfaction of all conditions precedent to the release of the Bank's obligation to refund payments received from persons subscribing for or ordering Shares in the Offering in accordance with the Plan and as described in the Prospectus or until refunds of such funds have been made to the persons entitled thereto or withdrawal authorizations canceled in accordance with the Plan and as described in the Prospectus. The Bank will maintain such records of all funds received to permit the funds of each subscriber to be separately insured by the FDIC (to the maximum extent allowable) and to enable the Bank to make the appropriate refunds of such funds in the event that such refunds are required to be made in accordance with the Plan and as described in the Prospectus.
(ro) The Company and the Bank will take such actions and furnish such information as are reasonably requested by the Agent in order for the Agent to ensure compliance with the NASDNational Association of Securities Dealers, Inc.'s "Interpretation Relating to Free Free-Riding and Withholding."
(sp) Neither The Company or the Bank will furnish to Sandler X'Xxxxx as early as practicable prior to the Closing Date, but no later than two (2) full business days prior thereto, a copy of the latest available unaudited interim consolidated financial statements of the Bank and the Subsidiaries which have been read by KPMG Peat Marwick, LLP, as stated in their letters to be furnished pursuant to subsections (e) and (f) of Section 5 hereof.
(q) The Company and the Bank will comply with the conditions imposed by or agreed to with the OTS in connection with its approval of the Holding Company Application and with the Superintendent or the FDIC in connection with their approval of the Conversion Application including those conditions relating to the establishment and the operation of the Foundation; the Company and the Bank shall use their best efforts to ensure that the Foundation submits within the time frames required by applicable law a request to Internal Revenue Service to be recognized as a tax-exempt organization under Section 501(c)(3) of the Internal Revenue Code of 1986, as amended (the "Code"); the Company and the Bank will take no action which will result in the possible loss of the Foundation's tax-exempt status; and neither the Company nor the Bank will amend contribute any additional assets to the Plan Foundation until such time that such additional contributions will be deductible for federal and state income tax purposes.
(r) During the period ending on the first anniversary of the Closing Time, the Bank will comply with all applicable law and regulation necessary for the Bank to continue to be a "qualified thrift lender" within the meaning of 12 U.S.C. (S) 1467a(m).
(s) Other than in connection with any employee benefit plan or arrangement described in the Prospectus, the Company will not, without notifying the Agent prior theretowritten consent of the Agent, sell or issue, contract to sell or otherwise dispose of, any shares of Common Stock other than the Securities or the Foundation Shares for a period of 180 days following the Closing Time.
(t) The Company shall assist not deliver the Agent, if necessary, in connection with the allocation of the Shares in the event of an oversubscription and shall provide the Agent with any information necessary to assist the Company in allocating the Shares in such event and such information shall be accurate and reliable in all material respects.
(u) Prior to the Closing Date, Securities until the Company and the Bank will inform the Agent of any event have satisfied or circumstances of which it is aware as a result of which the Registration Statement and/or Prospectus, as then amended or supplemented, would contain an untrue statement of a material fact or omit caused to state a material fact necessary in order to make the statements therein not misleading.
(v) Subsequent to the date the Registration Statement is declared effective by the Commission and prior to the Closing Date, except as otherwise may be indicated or contemplated therein or satisfied each condition set forth in an amendment or supplement theretoSection 5 hereof, neither the Company nor the Bank will have: (i) issued any securities or incurred any liability or obligation, direct or contingent, for borrowed money, except borrowings from the same or similar sources indicated in the Prospectus in the ordinary course of its business, or (ii) entered into any transaction which unless such condition is material in light of the business and properties of the Company and the Bank, taken as a whole.
(w) The Company will promptly take all necessary action to register as a bank holding company under the BHC Act.
(x) The facts and representations provided to Jenkens & Xxxxxxxxx waived by the Bank and the Company and upon which Xxxxxxx & Xxxxxxxxx will base its opinion under Section 8(c)(1) are and will be truthful, accurate and completeAgent.
Appears in 1 contract
Covenants of the Company and the Bank. The Company and the Bank hereby jointly and severally covenant with the Agent Xxxx as follows:
(a) The Company will not, at any time after the date the Registration Statement is declared effective, file any amendment or supplement to the Registration Statement without providing the Agent Xxxx and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent Xxxx or its counsel shall reasonably object.
(b) Neither the The Bank nor the Company willwill not, at any time after the Conversion Application and Holding Company Application are is approved by the AgenciesOTS, file any amendment or supplement to such Applications Conversion Application without providing the Agent Xxxx and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent Xxxx or its counsel shall reasonably object.
(c) The Company will not, at any time before the Holding Company Application is approved by the OTS, file any amendment or supplement to such Holding Company Application without providing Xxxx and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement Xxxx or its counsel shall reasonably object.
(d) The Company and the Bank will use their best efforts to cause any post-effective amendment to the Registration Statement to be declared effective by the Commission and any post-approval effective amendment to the Conversion Application and Holding Company Application to be approved by the Agencies OTS and will immediately upon receipt of any information concerning the events listed below notify the AgentXxxx: (i) when the Registration Statement, as amended, has become effective; (ii) when the Conversion Application and Application, as amended, has been approved by the OTS; (iii) when the Holding Company Application, as amended have amended, has been approved by the AgenciesOTS; (iiiiv) of any comments from the Commission, Commission or the Agencies OTS or any other governmental entity with respect to the Offering Conversion or the transactions contemplated by this Agreement; (ivv) of the request by the Commission, Commission or the Agencies OTS or any other governmental entity for any amendment or supplement to the Registration Statement, the Conversion Application and Application, the Holding Company Application or for additional information; (vvi) of the issuance by the Commission, Commission or the Agencies OTS or any other governmental entity of any order or other action suspending the Offering or the use of the Registration Statement or the Prospectus or any other filing of the Company or the Bank under the Conversion Regulations, BHC Act or other applicable law, or the threat of any such action; (vivii) the issuance by the Commission, the Agencies Commission or any authority OTS of any stop order suspending the effectiveness of the Registration Statement or the approval of the Conversion Application or Holding Company Application, or of the initiation or threat of initiation or threat of any proceedings for that any such purpose; or (viiviii) of the occurrence of any event mentioned in paragraph (gh) below. The Company and the Bank will make every reasonable effort (i) to prevent the issuance by the Commission, Commission or the Agencies or any state authority OTS of any such order and, if any such order shall at any time be issued and issued, (ii) to obtain the lifting thereof at the earliest possible time.
(de) The Company and the Bank will deliver to the Agent Xxxx and to its counsel two conformed copies of the Registration Statement, the Conversion Application and Application, the Holding Company Application and Merger Application, as originally filed, filed and of each amendment or supplement thereto, including all exhibits. Further, the Company and the Bank will deliver such additional copies of the foregoing documents to counsel to the Agent Xxxx as may be required for any NASD and "blue sky" filings.
(ef) The Company and the Bank will furnish to the AgentXxxx, from time to time during the period when the Prospectus (or any later prospectus related to this offering) is required to be delivered under the 1933 Act or the Securities Exchange Act of 1934 1934, (the "1934 Act"), such number of copies of such Prospectus (as amended or supplemented) as the Agent Xxxx may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the rules and regulations promulgated under the 1934 Act (the "1934 Act Regulations"). The Company authorizes the Agent Xxxx to use the Prospectus (as amended or supplemented, if amended or supplemented) in any lawful manner contemplated by the Plan in connection with the sale of the Shares by the AgentXxxx.
(fg) The Company and the Bank will prepare and file such amendments or supplements to the Merger Application as may be appropriate in order to receive all necessary regulatory approvals of the Merger. The Company will notify Xxxx immediately and confirm notice in writing of the receipt of any comments from the OTS with respect to the transactions described in the Merger Application, of any request for supplemental information to the Merger Application, or issuance of any order regarding the Merger or the initiation of any proceedings regarding the Merger.
(h) The Company and the Bank will comply with any and all material terms, conditions, requirements and provisions with respect to the Offering, Conversion and the transactions contemplated thereby, Merger imposed by the Commission, the Agencies or OTS, the Conversion Regulations or the BHC ActHOLA and regulations promulgated thereunder, and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations to be complied with prior to or subsequent to the Closing Date and when the Prospectus is required to be delivered, and during such time period the Company and the Bank will comply, at their own expense, with all material requirements imposed upon them by the Commission, the Agencies or OTS, the Conversion Regulations, the BHC Act HOLA, and by the 1933 1993 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, including, without limitation, Rule 10b-5 under the 1934 Act, in each case as from time to time in force, so far as necessary to permit the continuance of sales or dealing in the shares of Common Stock during such period in accordance with the provisions hereof and the Prospectus.
(gi) If, at any time during the period when the Prospectus relating to the Shares is required to be delivered, any event relating to or affecting the Company or Company, the Bank or a Subsidiary shall occur, as a result of which it is necessary or appropriate, in the opinion of counsel for the Company and the Bank or in the reasonable opinion of the Agent's counsel, to amend or supplement the Registration Statement or Prospectus in order to make the Registration Statement or Prospectus not misleading in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, the Company and the Bank will immediately so inform the Agent and prepare and filewill, at their own expense, prepare and file with the Commission and the Agencies OTS, and furnish to the Agent Xxxx a reasonable number of copies of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or and Prospectus (in form and substance reasonably satisfactory to the Agent Xxxx and its counsel after a reasonable time for review) which will amend or supplement the Registration Statement or and Prospectus so that as amended or supplemented it will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading. For the purpose of this Agreement, the Company and the Bank each will timely furnish to the Agent Xxxx such information with respect to itself as the Agent Xxxx may from time to time reasonably request.
(hj) At the Closing Date referred to in Section 2, the Plan and Merger Agreement will have been adopted by the Board of Directors of the Company and the Board of Directors of the Bank and the offer and sale of the Shares and exchange of Exchange Shares will have been conducted in all material respects in accordance with the Plan, Merger Agreement, the Conversion Regulations, and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion and Merger imposed upon the Company or the Bank by the Commission, the OTS, or any other regulatory authority and in the manner described in the Prospectus.
(k) Upon completion of the sale by the Company of the Shares contemplated by the Prospectus, (i) the Bank will be converted pursuant to the Plan to a federally chartered stock savings bank, (ii) all of the authorized and outstanding capital stock of the Bank will be owned by the Company, and (iii) the Company will have no direct subsidiaries other than the Bank. The Conversion will have been effected in all material respects in accordance with all applicable statutes, regulations, decisions and orders; and, except with respect to the filing of certain post-sale, post-Conversion reports, and documents in compliance with the 1933 Act Regulations, and all terms, conditions, requirements and provisions with respect to the Conversion (except those that are conditions subsequent) imposed by the Commission and the OTS, if any, will have been complied with by the Company and the Bank in all material respects or appropriate waivers will have been obtained and all material notice and waiting periods will have been satisfied, waived or elapsed.
(l) The Company and the Bank will take all necessary actions, in cooperating cooperation with the AgentXxxx, and furnish to whomever the Agent Xxxx may direct, such information as may be required to qualify or register the Shares for offering and sale by the Company or to exempt such Shares from registration, or to exempt the Company as a broker-dealer and its officers, directors and employees as broker-dealers or agents under the applicable securities or blue sky laws of such jurisdictions in which the Shares are required under the Conversion Regulations to be offered and sold or as the Agent Xxxx and the Company and the Bank may reasonably agree upon; provided, however, that the Company shall not be obligated to file any general consent to service of process, process or to qualify to do business in any jurisdiction in which it is not so qualified, or to register its directors or officers as brokers, dealers, salesmen or agents in any jurisdiction. In each jurisdiction where any of the Shares shall have been qualified or registered as above provided, the Company will make and file such statements and reports in each fiscal period as are or may be required by the laws of such jurisdiction.
(im) The Bank shall duly establish and maintain the liquidation account for the benefit of Eligible Account Holders and Supplemental Eligible Account Holders will be duly established and maintained in accordance with the requirements of the Conversion Regulations, and such Eligible Account Holders and Supplemental Eligible Account Holders who continue to maintain their savings accounts in the Bank will have an inchoate interest in their pro rata portion of the liquidation account, which shall have a priority superior to that of the holders of the Shares in the event of a complete liquidation of the BankOTS.
(jn) The Company and the Bank will not sell or issue, contract to sell or otherwise dispose of, for a period of 180 days after the Closing Date, without the Agent's Xxxx'x prior written consent, any shares of Common Stock other than the Shares or other than in connection with any plan or arrangement described in the Prospectus, including existing stock benefit plans.
(ko) The Company shall register its Common Stock under Section 12(g) of the 1934 Act on or prior to concurrent with the Closing Date Offering pursuant to the Plan and shall request that such registration be effective prior to or no later than upon completion of the OfferingConversion. The Company shall maintain the effectiveness of such registration for not less than three (3) years or such shorter period as may be required by the AgenciesOTS.
(lp) During the period during which the Company's Common Stock is registered under the 1934 Act or for three years from the date hereof, whichever period is greater, the Company will furnish to its shareholders stockholders as soon as practicable after the end of each fiscal year an annual report of the Company (including a consolidated balance sheet and statements of consolidated income, shareholdersstockholders' equity and cash flows of the Company and its subsidiaries as at the end of and for such year, certified by independent public accountants in accordance with Regulation S-X under the 1933 Act and the 1934 Act).
(mq) During the period of three years from the date hereof, the Company will furnish to the AgentXxxx: (i) as soon as practicable after such information is publicly available, a copy of each report of the Company furnished to or filed with the Commission under the 1934 Act or any national securities exchange or system on which any class of securities of the Company is listed or quoted (including, but not limited to, reports on Forms 10-KSBK, 10-QSB Q and 8-K and all proxy statements and annual reports to stockholders), (ii) a copy of each other non-confidential report of the Company mailed to its stockholders or filed with the CommissionCommission or OTS, the Agencies or any other supervisory or regulatory authority or any national securities exchange or system on which any class of securities of the Company is listed or quoted, each press release and material news items and additional documents and information with respect to the Company or the Bank as the Agent Xxxx may reasonably request; and (iii) from time to time, such other nonconfidential information concerning the Company or the Bank as the Agent Xxxx may reasonably request.
(nr) The Company and the Bank will use the net proceeds from the sale of the Shares in the manner set forth in the Prospectus under the caption "How We Intend to Use the of Proceeds."
(os) Other than as permitted by the Conversion Regulations, the BHC ActHOLA, the 1933 Act, the 1933 Act Regulations, and the laws of any state in which the Shares are registered or qualified for sale or exempt from registration, neither the Company nor the Bank will distribute any prospectus, offering circular prospectus or other offering material in connection with the offer and sale of the Shares.
(pt) The Company will use its best efforts to (i) encourage and assist a three market maker makers to establish and maintain a market for the Shares and (ii) list and maintain quotation of the Shares on a national or regional securities exchange or on the OTC Bulletin Board Nasdaq National Market of the Nasdaq Stock Market effective on or prior to the Closing Date.
(qu) The Bank will maintain appropriate arrangements for depositing all funds received from persons mailing subscriptions for or orders to purchase Shares in the Offering on an interest-interest bearing basis at the rate described in the Prospectus until the Closing Date and satisfaction of all conditions precedent to the release of the Bank's obligation to refund payments received from persons subscribing for or ordering Shares in the Offering in accordance with the Plan and as described in the Prospectus or until refunds of such funds have been made to the persons entitled thereto or withdrawal authorizations canceled cancelled in accordance with the Plan and as described in the Prospectus. The Bank will maintain such records of all funds received to permit the funds of each subscriber to be separately insured by the FDIC (to the maximum extent allowable) and to enable the Bank to make the appropriate refunds of such funds in the event that such refunds are required to be made in accordance with the Plan and as described in the Prospectus.
(rv) Prior to the Closing Date, the Merger Application shall have been approved and all applicable waiting periods shall have expired, the Holding Company Application shall have been approved by the OTS. The Company will promptly take all necessary action to register as a savings and loan holding company under the HOLA within 90 days of the Closing Date.
(w) The Company and the Bank will take such actions and furnish such information as are reasonably requested by the Agent Xxxx in order for the Agent Xxxx to ensure compliance with the NASD's "Interpretation Relating to Free Riding and Withholding."
(sx) Neither the Company nor the The Bank will not amend the Plan of Conversion without notifying the Agent Xxxx prior thereto.
(ty) The Company shall assist the AgentXxxx, if necessary, in connection with the allocation of the Shares in the event of an oversubscription and shall provide the Agent Xxxx with any information necessary to assist the Company in allocating the Shares in such event and such information shall be accurate and reliable in all material respectsevent.
(uz) Prior to the Closing Date, the Company and the Bank will inform the Agent Xxxx of any event or circumstances of which it is aware as a result of which the Registration Statement Statement, the Conversion Application and/or Prospectus, as then amended or supplemented, would contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading.
(v) Subsequent to the date the Registration Statement is declared effective by the Commission and prior to the Closing Date, except as otherwise may be indicated or contemplated therein or set forth in an amendment or supplement thereto, neither the Company nor the Bank will have: (i) issued any securities or incurred any liability or obligation, direct or contingent, for borrowed money, except borrowings from the same or similar sources indicated in the Prospectus in the ordinary course of its business, or (ii) entered into any transaction which is material in light of the business and properties of the Company and the Bank, taken as a whole.
(w) The Company will promptly take all necessary action to register as a bank holding company under the BHC Act.
(x) The facts and representations provided to Jenkens & Xxxxxxxxx by the Bank and the Company and upon which Xxxxxxx & Xxxxxxxxx will base its opinion under Section 8(c)(1) are and will be truthful, accurate and complete.
Appears in 1 contract
Samples: Agency Agreement (CFS Bancorp Inc)
Covenants of the Company and the Bank. The Company and the Bank hereby jointly and severally covenant with the Agent Xxxx as follows:
(a) The Company will not, at any time after the date the Registration Statement is declared effective, file any amendment or supplement to the Registration Statement without providing the Agent Xxxx and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent Xxxx or its counsel shall reasonably object.
(b) Neither the The Bank nor the Company willwill not, at any time after the Conversion Application and Holding Company Application are is approved by the AgenciesOTS, file any amendment or supplement to such Applications Conversion Application without providing the Agent Xxxx and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent Xxxx or its counsel shall reasonably object.
(c) The Company will not, at any time before the Holding Company Application is approved by the OTS, file any amendment or supplement to such Holding Company Application without providing Xxxx and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement Xxxx or its counsel shall reasonably object.
(d) The Company and the Bank will use their best efforts to cause any post-effective amendment to the Registration Statement to be declared effective by the Commission and any post-approval effective amendment to the Conversion Application and Holding Company Application to be approved by the Agencies OTS and will immediately upon receipt of any information concerning the events listed below notify the AgentXxxx: (i) when the Registration Statement, as amended, has become effective; (ii) when the Conversion Application and Application, as amended, has been approved by the OTS; (iii) when the Holding Company Application, as amended have amended, has been approved by the AgenciesOTS; (iiiiv) of any comments from the Commission, the Agencies OTS or any other governmental entity with respect to the Offering Conversion or the transactions contemplated by this Agreement; (ivv) of the request by the Commission, the Agencies OTS or any other governmental entity for any amendment or supplement to the Registration Statement, the Conversion Application and or the Holding Company Application or for additional information; (vvi) of the issuance by the Commission, the Agencies OTS or any other governmental entity of any order or other action suspending the Offering or the use of the Registration Statement or the Prospectus or any other filing of the Company or the Bank under the Conversion Regulations, BHC Act or other applicable law, or the threat of any such action; (vivii) the issuance by the Commission, the Agencies OTS or any state authority of any stop order suspending the effectiveness of the Registration Statement or the approval of the Conversion Application or Holding Company Application, or of the initiation or threat of initiation or threat of any proceedings for that any such purpose; or (viiviii) of the occurrence of any event mentioned in paragraph (gh) below. The Company and the Bank will make every reasonable effort (i) to prevent the issuance by the Commission, the Agencies OTS or any state authority of any such order and, if any such order shall at any time be issued and issued, (ii) to obtain the lifting thereof at the earliest possible time.
(de) The Company and the Bank will deliver to the Agent Xxxx and to its counsel two conformed copies of the Registration Statement, the Conversion Application and the Holding Company Application, as originally filed, filed and of each amendment or supplement thereto, including all exhibits. Further, the Company and the Bank will deliver such additional copies of the foregoing documents to counsel to the Agent Xxxx as may be required for any NASD and "blue sky" filings.
(ef) The Company and the Bank will furnish to the AgentXxxx, from time to time during the period when the Prospectus (or any later prospectus related to this offering) is required to be delivered under the 1933 Act or the Securities Exchange Act of 1934 1934, (the "1934 Act"), such number of copies of such Prospectus (as amended or supplemented) as the Agent Xxxx may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the rules and regulations promulgated under the 1934 Act (the "1934 Act Regulations"). The Company authorizes the Agent Xxxx to use the Prospectus (as amended or supplemented, if amended or supplemented) in any lawful manner contemplated by the Plan in connection with the sale of the Shares by the AgentXxxx.
(fg) The Company and the Bank will comply with any and all material terms, conditions, requirements and provisions with respect to the Offering, and the transactions contemplated thereby, Conversion imposed by the Commission, the Agencies or OTS, the Conversion Regulations or the BHC ActSLHCA, and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations to be complied with prior to or subsequent to the Closing Date and when the Prospectus is required to be delivered, and during such time period the Company and the Bank will comply, at their own expense, with all material requirements imposed upon them by the Commission, the Agencies OTS, the Conversion Regulations or the Conversion RegulationsSLHCA, the BHC Act and by the 1933 1993 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, including, without limitation, Rule 10b-5 under the 1934 Act, in each case as from time to time in force, so far as necessary to permit the continuance of sales or dealing in the shares of Common Stock during such period in accordance with the provisions hereof and the Prospectus.
(gh) If, at any time during the period when the Prospectus relating to the Shares is required to be delivered, any event relating to or affecting the Company Company, the Bank or the Bank Subsidiaries shall occur, as a result of which it is necessary or appropriate, in the opinion of counsel for the Company and the Bank or in the reasonable opinion of the Agent's counsel, to amend or supplement the Registration Statement or Prospectus in order to make the Registration Statement or Prospectus not misleading in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, the Company and the Bank will immediately so inform the Agent and prepare and filewill, at their own expense, prepare and file with the Commission and the Agencies OTS and furnish to the Agent Xxxx a reasonable number of copies of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or and Prospectus (in form and substance reasonably satisfactory to the Agent Xxxx and its counsel after a reasonable time for review) which will amend or supplement the Registration Statement or and Prospectus so that as amended or supplemented it will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading. For the purpose of this Agreement, the Company and the Bank each will timely furnish to the Agent Xxxx such information with respect to itself as the Agent Xxxx may from time to time reasonably request.
(hi) At the Closing Date referred to in Section 2, the Plan will have been adopted by the Boards of Directors of both the Company and the Bank and the offer and sale of the Shares will have been conducted in all material respects in accordance with the Plan, the Conversion Regulations, and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Company or the Bank by the OTS, the Commission or any other regulatory authority and in the manner described in the Prospectus.
(j) Upon completion of the sale by the Company of the Shares contemplated by the Prospectus, (i) the Bank will be converted pursuant to the Plan to a federally chartered stock savings bank, (ii) all of the authorized and outstanding capital stock of the Bank will be owned by the Company, and (iii) the Company will have no direct subsidiaries other than the Bank. The Conversion will have been effected in all material respects in accordance with all applicable statutes, regulations, decisions and orders; and, except with respect to the filing of certain post-sale, post-Conversion reports, and documents in compliance with the 1933 Act Regulations or the OTS's letters of approval, all terms, conditions, requirements and provisions with respect to the Conversion (except those that are conditions subsequent) imposed by the Commission and the OTS, if any, will have been complied with by the Company and the Bank in all material respects or appropriate waivers will have been obtained and all material notice and waiting periods will have been satisfied, waived or elapsed.
(k) The Company and the Bank will take all necessary actions, in cooperating cooperation with the AgentXxxx, and furnish to whomever the Agent Xxxx may direct, such information as may be required to qualify or register the Shares for offering and sale by the Company or to exempt such Shares from registration, or to exempt the Company as a broker-dealer and its officers, directors and employees as broker-dealers or agents under the applicable securities or blue sky laws of such jurisdictions in which the Shares are required under the Conversion Regulations to be offered and sold or as the Agent Xxxx and the Company and the Bank may reasonably agree upon; provided, however, that the Company shall not be obligated to file any general consent to service of process, process or to qualify to do business in any jurisdiction in which it is not so qualified, or to register its directors or officers as brokers, dealers, salesmen or agents in any jurisdiction. In each jurisdiction where any of the Shares shall have been qualified or registered as above provided, the Company will make and file such statements and reports in each fiscal period as are or may be required by the laws of such jurisdiction.
(il) The Bank shall duly establish and maintain the liquidation account for the benefit of Eligible Account Holders and Supplemental Eligible Account Holders will be duly established and maintained in accordance with the requirements of the Conversion RegulationsOTS, and such Eligible Account Holders and Supplemental Eligible Account Holders who continue to maintain their savings accounts in the Bank will have an inchoate interest in their pro rata portion of the liquidation account, account which shall have a priority superior to that of the holders of the Shares shares of Common Stock in the event of a complete liquidation of the Bank.
(jm) The Company and the Bank will not sell or issue, contract to sell or otherwise dispose of, for a period of 180 90 days after the Closing Date, without the Agent's Xxxx'x prior written consent, any shares of Common Stock other than the Shares or other than in connection with any plan or arrangement described in the Prospectus, including existing stock benefit plans.
(kn) The Company shall register its Common Stock under Section 12(g) of the 1934 Act on or prior to concurrent with the Closing Date Offering pursuant to the Plan and shall request that such registration be effective prior to or upon completion of the OfferingConversion. The Company shall maintain the effectiveness of such registration for not less than three (3) years or such shorter period as may be required by the AgenciesOTS.
(lo) During the period during which the Company's Common Stock is registered under the 1934 Act or for three years from the date hereof, whichever period is greater, the Company will furnish to its shareholders stockholders as soon as practicable after the end of each fiscal year an annual report of the Company (including a consolidated balance sheet and statements of consolidated income, shareholdersstockholders' equity and cash flows of the Company and its subsidiaries as at the end of and for such year, certified by independent public accountants in accordance with Regulation S-X under the 1933 Act and the 1934 Act).
(mp) During the period of three years from the date hereof, the Company will furnish to the AgentXxxx: (i) as soon as practicable after such information is publicly available, a copy of each report of the Company furnished to or filed with the Commission under the 1934 Act or any national securities exchange or system on which any class of securities of the Company is listed or quoted (including, but not limited to, reports on Forms 10-KSBK, 10-QSB Q and 8-K and all proxy statements and annual reports to stockholders), (ii) a copy of each other non-confidential report of the Company mailed to its stockholders or filed with the Commission, the Agencies OTS or any other supervisory or regulatory authority or any national securities exchange or system on which any class of securities of the Company is listed or quoted, each press release and material news items and additional documents and information with respect to the Company or the Bank as the Agent Xxxx may reasonably request; and (iii) from time to time, such other nonconfidential information concerning the Company or the Bank as the Agent Xxxx may reasonably request.
(nq) The Company and the Bank will use the net proceeds from the sale of the Shares in the manner set forth in the Prospectus under the caption "How We Intend to Use the of Proceeds."
(or) Other than as permitted by the Conversion Regulations, the BHC ActSLHCA, the 1933 Act, the 1933 Act Regulations, and the laws of any state in which the Shares are registered or qualified for sale or exempt from registration, neither the Company nor the Bank will distribute any prospectus, offering circular or other offering material in connection with the offer and sale of the Shares.
(ps) The Company will use its best efforts to (i) encourage and assist a two market maker makers to establish and maintain a market for the Shares and (ii) list and maintain quotation of the Shares on a national or regional securities exchange or on the OTC Bulletin Board Nasdaq National Market effective on or prior to the Closing Date.
(qt) The Bank will maintain appropriate arrangements for depositing all funds received from persons mailing subscriptions for or orders to purchase Shares in the Offering on an interest-interest bearing basis at the rate described in the Prospectus until the Closing Date and satisfaction of all conditions precedent to the release of the Bank's obligation to refund payments received from persons subscribing for or ordering Shares in the Offering in accordance with the Plan and as described in the Prospectus or until refunds of such funds have been made to the persons entitled thereto or withdrawal authorizations canceled cancelled in accordance with the Plan and as described in the Prospectus. The Bank will maintain such records of all funds received to permit the funds of each subscriber to be separately insured by the FDIC (to the maximum extent allowable) and to enable the Bank to make the appropriate refunds of such funds in the event that such refunds are required to be made in accordance with the Plan and as described in the Prospectus.
(ru) Prior to the Closing Date, the Holding Company Application shall have been approved by the OTS. The Company will promptly take all necessary action to register as a savings and loan holding company under the SLHCA within 90 days of the Closing Date.
(v) The Company and the Bank will take such actions and furnish such information as are reasonably requested by the Agent Xxxx in order for the Agent Xxxx to ensure compliance with the NASD's "Interpretation Relating to Free Riding and Withholding."
(sw) Neither the Company nor the The Bank will not amend the Plan of Conversion without notifying the Agent Xxxx prior thereto.
(tx) The Company shall assist the AgentXxxx, if necessary, in connection with the allocation of the Shares in the event of an oversubscription and shall provide the Agent Xxxx with any information necessary to assist the Company in allocating the Shares in such event and such information shall be accurate and reliable in all material respectsevent.
(uy) Prior to the Closing Date, the Company and the Bank will inform the Agent Xxxx of any event or circumstances of which it is aware as a result of which the Registration Statement Statement, the Conversion Application and/or Prospectus, as then amended or supplemented, would contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading.
(v) Subsequent to the date the Registration Statement is declared effective by the Commission and prior to the Closing Date, except as otherwise may be indicated or contemplated therein or set forth in an amendment or supplement thereto, neither the Company nor the Bank will have: (i) issued any securities or incurred any liability or obligation, direct or contingent, for borrowed money, except borrowings from the same or similar sources indicated in the Prospectus in the ordinary course of its business, or (ii) entered into any transaction which is material in light of the business and properties of the Company and the Bank, taken as a whole.
(w) The Company will promptly take all necessary action to register as a bank holding company under the BHC Act.
(x) The facts and representations provided to Jenkens & Xxxxxxxxx by the Bank and the Company and upon which Xxxxxxx & Xxxxxxxxx will base its opinion under Section 8(c)(1) are and will be truthful, accurate and complete.
Appears in 1 contract
Covenants of the Company and the Bank. The Each of the Company and the Bank hereby jointly and severally covenant covenants with the Agent you as follows:
(a) The Company will not, at any time after the date the Registration Statement is declared effective, file any amendment or supplement to the such Registration Statement without providing the Agent and Xxxx, Xxxx or its counsel an opportunity to review such amendment or supplement or file any amendment or supplement and to which amendment or supplement the Agent or its counsel shall reasonably objectobject in writing.
(b) Neither the Bank nor the Company will, at any time after the Conversion Application and Holding Company Application are approved by the Agencies, file any amendment or supplement to such Applications without providing the Agent and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably object.
(c) The Company and the Bank will use their best efforts to cause any post-effective amendment to the Registration Statement to be declared effective by the Commission and any post-approval amendment to the Conversion Application and Holding Company Application Applications to be approved by the Agencies OTS and the FDIC and will immediately upon receipt of any information concerning the events listed below notify the AgentXxxx, Xxxx: (i) when the Registration Statement, as amended, has become effective; (ii) when the Conversion Application and Holding Company Application, as amended have been approved by the Agencies; (iii) of receipt of any comments from the CommissionOTS, the Agencies FDIC or any other governmental entity with respect to the Offering Applications or the any transactions contemplated by this Agreement; (iv) of the request by the Commission, the Agencies or any other governmental entity for any amendment or supplement to the Registration Statement, the Conversion Application and the Holding Company Application or for additional information; (vii) of the issuance by the CommissionSEC, the Agencies OTS or any other governmental entity of any order or other action suspending the Offering Prospectus or the use of the Registration Statement or the Prospectus or any other filing of the Company or the Bank under the Conversion Regulations, BHC Act or other applicable law, or the threat of any such action; (viiii) the issuance by the CommissionSEC, the Agencies OTS or any other governmental authority of any stop order suspending the effectiveness of the Registration Statement or of the initiation or threat of initiation or threat of any proceedings for that purpose; or (vii) of the occurrence of any event mentioned in paragraph (g) belowsuch purposes. The Company and the Bank will make every reasonable effort (i) to prevent the issuance by the Commission, the Agencies SEC or any state authority other governmental agency of any such order and, if any such order shall at any time be issued and (ii) issued, to obtain the lifting thereof at the earliest possible time.
(c) The Company and the Bank will give you notice of its intention to file and reasonable time to review any amendment or supplement to the Applications which contains
(d) The Company and the Bank has or will deliver to the Agent and to its counsel you no less than two (2) conformed copies of tly to you and one to your counsel: the Registration Statement, the Conversion Application and the Holding Company Application, Applications as originally filed, filed and of each amendment or supplement thereto, including all exhibits. Further, the Company and the Bank will deliver such additional copies of the foregoing documents to counsel to the Agent Registration Statement as may be required for any NASD originally filed, and "blue sky" filingseach amendment thereto or correspondence in connection thereunder.
(e) The Company and the Bank will furnish to the Agent, you from time to time during the period when the Prospectus (or any later prospectus related to this offering) is required to be delivered under the 1933 Act or the Securities Exchange Act of 1934 (the "1934 Act"), such number of copies of such the Prospectus (as amended or supplemented) as the Agent you may reasonably request for the purposes contemplated by the 1933 Actrespective applicable rules and regulations of the Commission applicable to the Agent, the 1933 Act Regulations, the 1934 Act or by the rules and regulations promulgated under the 1934 Act (the "1934 Act Regulations"). The Company authorizes the Agent to use the Prospectus (as amended or supplemented, if amended or supplemented) in any lawful manner contemplated by the Plan in connection with the sale of the Shares by the AgentNASD.
(f) The Company and During the Bank will comply with any and all material terms, conditions, requirements and provisions with respect to the Offering, and the transactions contemplated thereby, imposed by the Commission, the Agencies or the Conversion Regulations or the BHC Act, and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations to be complied with prior to or subsequent to the Closing Date and period when the Prospectus is required to be delivered, and during such time period the Company and the Bank will comply, comply at their its own expense, expense with all material requirements imposed upon them it by the Commission, the Agencies or the Conversion Regulations, the BHC Act Commission by applicable state law and regulations and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, including, without limitation, Rule 10b-5 under the 1934 Actother applicable law, in each case as from time to time in force, so far as necessary to permit the continuance of sales or dealing in the Shares of Common Stock during such period in accordance with the provisions hereof and the Prospectus.
(g) If, at any time during the period when the Prospectus relating to the Shares is required to be delivered, If any event relating to or affecting the Company or the Bank shall occur, as a result of which it is necessary or appropriatenecessary, in the reasonable opinion of counsel for the Company and the Bank or in the reasonable opinion of the Agent's your counsel, to amend or supplement the Registration Statement or Prospectus in order to make the Registration Statement or Prospectus not misleading in light of the circumstances existing at the time the Prospectus it is delivered to a purchaser, the Company and the Bank will immediately so inform the Agent and forthwith prepare and file, at their own expense, with the Commission and the Agencies and furnish to the Agent you a reasonable number of copies of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or Prospectus (in form and substance reasonably satisfactory to the Agent each of Company's and its Bank's counsel after a reasonable time for reviewand your counsel) which will amend or supplement the Registration Statement or Prospectus so that that, as amended or supplemented supplemented, it will not contain an any untrue statement of a any material fact or omit to state a material fact necessary in order to make the statements therein, in light any mateht of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading. For the purpose of this Agreement, the Company and the Bank each will timely furnish to the Agent such information with respect to itself as the Agent may from time to time reasonably request.prospective
(h) The Company and the Bank will take all necessary actionsendeavor in good faith, in cooperating cooperation with the Agentyou, and furnish to whomever the Agent may direct, such information as may be required to qualify or register the Shares Shares, if necessary, for offering offer and sale by the Company or to exempt such Shares from registration, or to exempt the Company as a broker-dealer and its officers, directors and employees as broker-dealers or agents under the applicable securities or blue sky laws of such jurisdictions in which the Shares are required under the Conversion Regulations to be sold or as the Agent and the Company and the Bank you may reasonably agree upondesignate; provided, however, that the Company or the Bank shall not be obligated to file any general consent to service of process, process or to qualify to do business in any jurisdiction in which it is not so qualified, or to register its directors or officers as brokers, dealers, salesmen or agents qualified (except for the limited purpose of qualifying the Shares for offer and sale in any such jurisdiction). In each jurisdiction where any of the Shares shall have been qualified or registered as above provided, the Company and the Bank will make and file such statements and reports in each fiscal period year as are or may be reasonably required by the laws of such jurisdiction.
(i) The Bank shall duly establish and maintain the liquidation account for the benefit of Eligible Account Holders and Supplemental Eligible Account Holders in accordance with the requirements of the Conversion Regulations, and such Eligible Account Holders and Supplemental Eligible Account Holders who continue to maintain their savings accounts in the Bank will have an inchoate interest in their pro rata portion of the liquidation account, which shall have a priority superior to that of the holders of the Shares in the event of a complete liquidation of the Bank.
(j) The Company and the Bank will not sell or issue, contract to sell or otherwise dispose of, for a period of 180 days after the Closing Date, without the Agent's prior written consent, any Common Stock other than the Shares or other than in connection with any plan or arrangement described in the Prospectus, including existing stock benefit plans.
(k) The Company shall register its Common Stock under Section 12(g) of the 1934 Act on or prior to the Closing Date pursuant to the Plan and shall request that such registration be effective prior to or upon completion of the Offering. The Company shall maintain the effectiveness of such registration for not less than three years or such shorter period as may be required by the Agencies.
(l) During the period during which the Company's Common Stock is registered under the Securities Exchange Act of 1934 Act or for three years from (the date hereof, whichever period is greater"1934 Act"), the Company will furnish to its shareholders stockholders as soon as practicable after the end of each fiscal year year, an annual report as required by Rule 14a-3 of the Company (including a consolidated balance sheet and statements of consolidated income, shareholders' equity and cash flows of the Company and its subsidiaries as at the end of and for such year, certified by independent public accountants in accordance with Regulation S-X under the 1933 Act and the 1934 Act).
(mj) During the period of three years eighteen (18) months from the date hereofClosing Date, the Company will furnish to the Agent: (i) Xxxx, Xxxx as soon as practicable after such information is publicly available, a copy of each report of the Company furnished generally to shareholders of the Company or furnished to or filed with the Commission SEC under the 1934 Act Act, or any national securities exchange or system on which any class of securities of the Company is may be listed or quoted quoted, if any (including, but not limited to, reports on Forms Form 10-KSBK, 10-QSB and Q or 8-K or their equivalents, and all proxy statements and annual reports to stockholdersstatements), (ii) a copy of each other non-confidential report of the Company mailed to its stockholders or filed with the Commission, the Agencies or any other supervisory or regulatory authority or any national securities exchange or system on which any class of securities of the Company is listed or quoted, each press release and material news items and additional documents and information with respect to the Company or the Bank as the Agent may reasonably request; and (iii) from time to time, such other nonconfidential information concerning the Company or the Bank as the Agent may reasonably request.
(nk) The Company and the Bank will use the net proceeds from the sale of the Shares in the manner set forth in the Prospectus under the caption "How We Intend to Use the of Proceeds."
(ol) Other than the Prospectus and other than as permitted by the Conversion Regulationsapplicable law, the BHC Act, the 1933 Act, the 1933 Act Regulations, and the laws of any state in which the Shares are registered or qualified for sale or exempt from registration, neither the Company nor the Bank will not distribute any prospectus, offering circular Prospectus or other offering material in connection with the offer and sale of the SharesShares and will not publish any writing which constitutes an offer or prospectus.
(pm) The Company will use its best all reasonable efforts to comply with such requirements imposed by law (i) encourage and assist a market maker including the 1934 Act), regulation or the NASD as may be necessary for Agent or other brokerage firms to establish and maintain a make an active market for the Shares and (ii) list and maintain quotation of the Shares on the OTC Bulletin Board effective on or prior to the Closing DateCommon Stock.
(qn) The Bank Company will maintain appropriate arrangements for depositing all funds received from persons mailing subscriptions for or orders to purchase Shares in with the Offering on an interest-bearing basis at the rate described in the Prospectus until the Closing Date and satisfaction of all conditions precedent to the release of the Bank's obligation to refund payments received from persons subscribing for or ordering Shares in the Offering Escrow Agent, in accordance with the Plan and as described in the Prospectus or until refunds of such funds have been made pursuant to the persons entitled thereto or withdrawal authorizations canceled in accordance with terms of the Plan Escrow Agreement by and between the Company and Summit Bank, dated as described in the Prospectus. The Bank of _________________, as it may be amended from time to time and will maintain such records of all funds received to permit the funds of each subscriber to be separately insured by the FDIC (submitted to the maximum extent allowable) and Escrow Agent as necessary to enable the Bank Escrow Agent (i) to make the appropriate refunds of such funds in the event that such refunds are required to be made in accordance with the Plan Offering as described in the Prospectus and (ii) to pay interest on certain of such funds to certain of such subscribers as described in the Prospectus, if such refunds are required. In addition, Company will comply with the SEC's interpretation of Rule 15c2-4 promulgated under the Securities Exchange Act of 1934, as amended, with regard to the timely transmission of subscription funds to the Escrow Agent.
(o) The Company shall not be deemed to have accepted any subscription offer accompanied by a check or comparable instrument until final payment has been made on such check or instrument.
(p) The Company shall concurrently deliver to you copies of all notices and reports given by the Company to the Escrow Agent or received by the Company from the Escrow Agent.
(q) The Company will not sell or issue, contract to sell or otherwise dispose of, for a period of 90 days after the date hereof any shares of Common Stock, without the Agent's prior written consent, which consent shall not be unreasonably withheld, other than in connection with any plan or arrangement described in the Prospectus.
(r) The Company and will report the Bank use of proceeds of the Offering in accordance with Rule 463 under the Securities Act. (s) The Company will take such actions and furnish such information as are reasonably requested by the Agent in order for the Agent to ensure compliance with the NASD's "Interpretation Relating to of the Board of Governors of the NASD on Free Riding and Withholding."
(s) Neither the Company nor the Bank will amend the Plan without notifying the Agent prior thereto.
(t) The Company will make generally available to its security holders as soon as practicable, but in any event not later than 15 months after the end of the Company's current fiscal year quarter, an earnings statement (which need not be audited) covering 12-month period beginning after the date of this Agreement that shall assist the Agent, if necessary, in connection comply with the allocation provisions of Section 11(a) of the Shares in the event of an oversubscription Act and shall provide the Agent with any information necessary to assist the Company in allocating the Shares in such event and such information shall be accurate and reliable in all material respects.
(u) Prior to the Closing Date, the Company and the Bank will inform the Agent of any event or circumstances of which it is aware as a result of which the Registration Statement and/or Prospectus, as then amended or supplemented, would contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading.
(v) Subsequent to the date the Registration Statement is declared effective by the Commission and prior to the Closing Date, except as otherwise may be indicated or contemplated therein or set forth in an amendment or supplement thereto, neither the Company nor the Bank will have: (i) issued any securities or incurred any liability or obligation, direct or contingent, for borrowed money, except borrowings from the same or similar sources indicated in the Prospectus in the ordinary course of its business, or (ii) entered into any transaction which is material in light of the business and properties of the Company and the Bank, taken as a whole.
(w) The Company will promptly take all necessary action to register as a bank holding company Rule 158 promulgated under the BHC Act.
(x) The facts and representations provided to Jenkens & Xxxxxxxxx by the Bank and the Company and upon which Xxxxxxx & Xxxxxxxxx will base its opinion under Section 8(c)(1) are and will be truthful, accurate and complete.
Appears in 1 contract
Covenants of the Company and the Bank. The Company and the Bank hereby jointly and severally covenant with the Agent Xxxx as follows:
(a) The Company will not, at any time after the date the Registration Statement is declared effective, file any amendment or supplement to the Registration Statement without providing the Agent Xxxx and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent Xxxx or its counsel shall reasonably object.
(b) Neither the The Bank nor the Company willwill not, at any time after the Conversion Application and Holding Company Application are is approved by the AgenciesOTS, file any amendment or supplement to such Applications Conversion Application without providing the Agent Xxxx and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent Xxxx or its counsel shall reasonably object.
(c) The Company will not, at any time before the Holding Company Application is approved by the OTS, file any amendment or supplement to such Holding Company Application without providing Xxxx and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement Xxxx or its counsel shall reasonably object.
(d) The Company and the Bank will use their best efforts to cause the Registration Statement and any post-effective amendment to the Registration Statement to be declared effective by the Commission and any post-approval amendment to the Conversion Application and Holding Company Application to be approved by the Agencies OTS and will immediately upon receipt of any information concerning the events listed below notify the AgentXxxx: (i) when the Registration Statement, as amended, has become effective; (ii) when the Conversion Application and Application, as amended, has been approved by the OTS; (iii) when the Holding Company Application, as amended have amended, has been approved by the AgenciesOTS; (iiiiv) any comments from the Commission, Commission or the Agencies OTS or any other governmental entity with respect to the Offering Conversion or the transactions contemplated by this Agreement; (ivv) of the request by the Commission, Commission or the Agencies OTS or any other governmental entity for any amendment or supplement to the Registration Statement, the Conversion Application and Application, the Holding Company Application or for additional information; (vvi) of the issuance by the Commission, Commission or the Agencies OTS or any other governmental governmental. entity of any order or other action suspending the Offering or the use of the Registration Statement or the Prospectus or any other filing of the Company or the Bank under the Conversion Regulations, BHC Act or other applicable law, or the threat of any such action; (vivii) the issuance by the Commission, the Agencies Commission or any authority OTS of any stop order suspending the effectiveness of the Registration Statement or the approval of the Conversion Application or Holding Company Application, or of the initiation or threat of initiation or threat of any proceedings for that any such purpose; or (viiviii) of the occurrence of any event mentioned in paragraph (gh) below. The Company and the Bank will make every reasonable effort (i) to prevent the issuance by the Commission, Commission or the Agencies or any state authority OTS of any such order and, if any such order shall at any time be issued and issued, (ii) to obtain the lifting thereof at the earliest possible time.
(de) The Company and the Bank will deliver to the Agent Xxxx and to its counsel two conformed copies of the Registration Statement, the Conversion Application and Application, the Holding Company Application and Merger Application, as originally filed, filed and of each amendment or supplement thereto, including all exhibits. Further, the Company and the Bank will deliver such additional copies of the foregoing documents to counsel to the Agent Xxxx as may be required for any NASD and "blue sky" filings.
(ef) The Company and the Bank will furnish to the AgentXxxx, from time to time during the period when the Prospectus (or any later prospectus related to this offering) is required to be delivered under the 1933 Act or the Securities Exchange Act of 1934 1934, (the "1934 Act"), such number of copies of such Prospectus (as amended or supplemented) as the Agent Xxxx may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the rules and regulations promulgated under the 1934 Act (the "1934 Act Regulations"). The Company authorizes the Agent Xxxx to use the Prospectus (as amended or supplemented, if amended or supplemented) in any lawful manner contemplated by the Plan in connection with the sale of the Shares by the AgentXxxx.
(fg) The Company and the Bank will prepare and file such amendments or supplements to the Merger Application as may be appropriate in order to receive all necessary regulatory approvals of the Mergers. The Company will notify Xxxx immediately and confirm notice in writing of the receipt of any comments from the OTS with respect to the transactions described in the Merger Application, of any request for supplemental information to the Merger Application, or issuance of any order regarding the Mergers or the initiation of any proceedings regarding the Mergers.
(h) The Company and the Bank will comply with any and all material terms, conditions, requirements and provisions with respect to the Offering, Conversion and the transactions contemplated thereby, Mergers imposed by the Commission, the Agencies or OTS, the Conversion Regulations or the BHC ActHOLA and regulations promulgated thereunder, and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations to be complied with prior to or subsequent to the Closing Date and when the Prospectus is required to be delivered, and during such time period the Company and the Bank will comply, at their own expense, with all material requirements imposed upon them by the Commission, the Agencies or OTS, the Conversion Regulations, the BHC Act HOLA, and by the 1933 1993 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, including, without limitation, Rule 10b-5 under the 1934 Act, in each case as from time to time in force, so far as necessary to permit the continuance of sales or dealing in the shares of Common Stock during such period in accordance with the provisions hereof and the Prospectus.
(gi) If, at any time during the period when the Prospectus relating to the Shares is required to be delivered, any event relating to or affecting the Company or the Bank shall occur, as a result of which it is necessary or appropriate, in the opinion of counsel for the Company and the Bank or in the reasonable opinion of the Agent's counsel, to amend or supplement the Registration Statement or Prospectus in order to make the Registration Statement or Prospectus not misleading in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, the Company and the Bank will immediately so inform the Agent and prepare and filewill, at their own expense, prepare and file with the Commission and the Agencies OTS, and furnish to the Agent Xxxx a reasonable number of copies of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or and Prospectus (in form and substance reasonably satisfactory to the Agent Xxxx and its counsel after a reasonable time for review) which will amend or supplement the Registration Statement or and Prospectus so that as amended or supplemented it will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading. For the purpose of this Agreement, the Company and the Bank each will timely furnish to the Agent Xxxx such information with respect to itself as the Agent Xxxx may from time to time reasonably request.
(hj) At the Closing Time referred to in Section 2, the Plan and Merger Agreements will have been adopted by the Board of Directors of the Company and the Board of Directors of the Bank and the Oakley Merger will have been completed, and the offer and sale of the Shares and exchange of Exchange Shares will have been conducted in all material respects in accordance with the Plan, Merger Agreements, the Conversion Regulations, and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion and Merger imposed upon the Company or the Bank by the Commission, the OTS, or any other regulatory authority and in the manner described in the Prospectus.
(k) Upon completion of the sale by the Company of the Shares contemplated by the Prospectus, (i) the Bank will be converted pursuant to the Plan to a federally chartered stock savings bank, (ii) all of the authorized and outstanding capital stock of the Bank will be owned by the Company, and (iii) the Company will have no direct subsidiaries other than the Bank. The Conversion will have been effected in all material respects in accordance with all applicable statutes, regulations, decisions and orders; and, except with respect to the filing of certain post-sale, post-Conversion reports, and documents in compliance with the 1933 Act Regulations, and all terms, conditions, requirements and provisions with respect to the Conversion (except those that are conditions subsequent) imposed by the Commission and the OTS, if any, will have been complied with by the Company and the Bank in all material respects or appropriate waivers will have been obtained and all material notice and waiting periods will have been satisfied, waived or elapsed.
(l) The Company and the Bank will take all necessary actions, in cooperating cooperation with the AgentXxxx, and furnish to whomever the Agent Xxxx may direct, such information as may be required to qualify or register the Shares for offering and sale by the Company or to exempt such Shares from registration, or to exempt the Company as a broker-dealer and its officers, directors and employees as broker-dealers or agents under the applicable securities or blue sky laws of such jurisdictions in which the Shares are required under the Conversion Regulations to be offered and sold or as the Agent Xxxx and the Company and the Bank may reasonably agree upon; provided, however, that the Company shall not be obligated to file any general consent to service of process, process or to qualify to do business in any jurisdiction in which it is not so qualified, or to register its directors or officers as brokers, dealers, salesmen or agents in any jurisdiction. In each jurisdiction where any of the Shares shall have been qualified or registered as above provided, the Company will make and file such statements and reports in each fiscal period as are or may be required by the laws of such jurisdiction.
(im) The Bank shall duly establish and maintain the liquidation account for the benefit of Eligible Account Holders and Supplemental Eligible Account Holders will be duly established and maintained in accordance with the requirements of the Conversion Regulations, and such Eligible Account Holders and Supplemental Eligible Account Holders who continue to maintain their savings accounts in the Bank will have an inchoate interest in their pro rata portion of the liquidation account, which shall have a priority superior to that of the holders of the Shares in the event of a complete liquidation of the BankOTS.
(jn) The Company and the Bank will not sell or issue, contract to sell or otherwise dispose of, for a period of 180 days after the Closing Date, without the Agent's Xxxx'x prior written consent, any shares of Common Stock other than the Shares or other than in connection with any plan or arrangement described in the Prospectus, including existing stock benefit plans.
(ko) The Company shall register its Common Stock under Section 12(g) of the 1934 Act on or prior to the Closing Date consummation of the Offering pursuant to the Plan and shall request that such registration be effective prior to or no later than upon completion of the OfferingConversion. The Company shall maintain the effectiveness of such registration for not less than three years or such shorter period as may be required by the AgenciesOTS.
(lp) During the period during which the Company's Common Stock is registered under the 1934 Act or for three years from the date hereof, whichever period is greater, the Company will furnish to its shareholders stockholders as soon as practicable after the end of each fiscal year an annual report of the Company (including a consolidated balance sheet and statements of consolidated income, shareholdersstockholders' equity and cash flows of the Company and its subsidiaries as at the end of and for such year, certified by independent public accountants in accordance with Regulation S-X under the 1933 Act and the 1934 Act).
(mq) During the period of three years from the date hereof, the Company will furnish to the AgentXxxx: (i) as soon as practicable after such information is publicly available, a copy of each report of the Company furnished to or filed with the Commission under the 1934 Act or any national securities exchange or system on which any class of securities of the Company is listed or quoted (including, but not limited to, reports on Forms 10-KSBK, 10-QSB Q and 8-K and all proxy statements and annual reports to stockholders), (ii) a copy of each other non-confidential report of the Company mailed to its stockholders or filed with the CommissionCommission or OTS, the Agencies or any other supervisory or regulatory authority or any national securities exchange or system on which any class of securities of the Company is listed or quoted, each press release and material news items and additional documents and information with respect to the Company or the Bank as the Agent Xxxx may reasonably request; and (iii) from time to time, such other nonconfidential information concerning the Company or the Bank as the Agent Xxxx may reasonably request.
(nr) The Company and the Bank will use the net proceeds from the sale of the Shares in the manner set forth in the Prospectus under the caption "How We Intend to Use the ProceedsOur Net Proceeds Will Be Used."
(os) Other than as permitted by the Conversion Regulations, the BHC ActHOLA, the 1933 Act, the 1933 Act Regulations, and the laws of any state in which the Shares are registered or qualified for sale or exempt from registration, neither the Company nor the Bank will distribute any prospectus, offering circular prospectus or other offering material in connection with the offer and sale of the Shares.
(pt) The Company will use its best efforts to (i) encourage and assist a three market maker makers to establish and maintain a market for the Shares and (ii) list and maintain quotation of the Shares on a national or regional securities exchange or on the OTC Bulletin Board Nasdaq National Market of the Nasdaq Stock Market effective on or prior to the Closing Date.
(qu) The Bank will maintain appropriate arrangements for depositing all funds received from persons mailing subscriptions for or orders to purchase Shares in the Offering on an interest-interest bearing basis at the rate described in the Prospectus until the Closing Date and satisfaction of all conditions precedent to the release of the Bank's obligation to refund payments received from persons subscribing for or ordering Shares in the Offering in accordance with the Plan and as described in the Prospectus or until refunds of such funds have been made to the persons entitled thereto or withdrawal authorizations canceled cancelled in accordance with the Plan and as described in the Prospectus. The Bank will maintain such records of all funds received to permit the funds of each subscriber to be separately insured by the FDIC (to the maximum extent allowable) and to enable the Bank to make the appropriate refunds of such funds in the event that such refunds are required to be made in accordance with the Plan and as described in the Prospectus.
(rv) Prior to the Closing Date, the Merger Application shall have been approved and all applicable waiting periods shall have expired, the Holding Company Application shall have been approved by the OTS. The Company will promptly take all necessary action to register as a savings and loan holding company under the HOLA within 90 days of the Closing Date.
(w) The Company and the Bank will take such actions and furnish such information as are reasonably requested by the Agent Xxxx in order for the Agent Xxxx to ensure compliance with the NASD's "Interpretation Relating to Free Riding and Withholding."
(sx) Neither the Company nor the The Bank will not amend the Plan without notifying the Agent Xxxx prior thereto.
(ty) The Company shall assist the AgentXxxx, if necessary, in connection with the allocation of the Shares in the event of an oversubscription and shall provide the Agent Xxxx with any information necessary to assist the Company in allocating the Shares in such event and such information shall be accurate and reliable in all material respectsevent.
(uz) Prior to the Closing Date, the Company and the Bank will inform the Agent Xxxx of any event or circumstances of which it is aware as a result of which the Registration Statement Statement, the Conversion Application and/or Prospectus, as then amended or supplemented, would contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading.
(v) Subsequent to the date the Registration Statement is declared effective by the Commission and prior to the Closing Date, except as otherwise may be indicated or contemplated therein or set forth in an amendment or supplement thereto, neither the Company nor the Bank will have: (i) issued any securities or incurred any liability or obligation, direct or contingent, for borrowed money, except borrowings from the same or similar sources indicated in the Prospectus in the ordinary course of its business, or (ii) entered into any transaction which is material in light of the business and properties of the Company and the Bank, taken as a whole.
(w) The Company will promptly take all necessary action to register as a bank holding company under the BHC Act.
(x) The facts and representations provided to Jenkens & Xxxxxxxxx by the Bank and the Company and upon which Xxxxxxx & Xxxxxxxxx will base its opinion under Section 8(c)(1) are and will be truthful, accurate and complete.
Appears in 1 contract
Samples: Agency Agreement (Peoples Community Bancorp Inc /De/)
Covenants of the Company and the Bank. The Company and the Bank hereby jointly and severally covenant with the Agent as follows:
(a) The Company will not, at any time after the date the Registration Statement is declared effective, file any amendment or supplement to the Registration Statement without providing the Agent and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably object.
(b) Neither the The Bank nor the Company willwill not, at any time after the Conversion Application and Holding Company Application are is approved by the AgenciesOTS, file any amendment or supplement to such Applications Conversion Application without providing the Agent and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably object.
(c) The Company will not, at any time before the Holding Company Application is approved by the OTS, file any amendment or supplement to such Holding Company Application without providing the Agent and its counsel an opportunity to review the nonconfidential portions of such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably object.
(d) The Company and the Bank will use their best efforts to cause any post-effective amendment to the Registration Statement to be declared effective by the Commission and any post-approval effective amendment to the Conversion Application and Holding Company Application to be approved by the Agencies OTS and will immediately upon receipt of any information concerning the events listed below notify the Agent: (i) when the Registration Statement, as amended, has become effective; (ii) when the Conversion Application and Holding Company Application, as amended have amended, has been approved by the AgenciesOTS; (iii) any comments from the Commission, the Agencies OTS, or any other governmental entity with respect to the Offering Conversion or the transactions contemplated by this Agreement; (iv) of the request by the Commission, the Agencies OTS, or any other governmental entity for any amendment or supplement to the Registration Statement, the Conversion Application and the Holding Company Application or for additional information; (v) of the issuance by the Commission, the Agencies OTS, or any other governmental entity of any order or other action suspending the Offering or the use of the Registration Statement or the Prospectus or any other filing of the Company or the Bank under the Conversion Regulations, BHC Act or other applicable law, or the threat of any such action; (vi) the issuance by the Commission, the Agencies OTS, or any authority of any stop order suspending the effectiveness of the Registration Statement or of the initiation or threat of initiation or threat of any proceedings for that purpose; or (vii) of the occurrence of any event mentioned in paragraph (gh) below. The Company and the Bank will make every reasonable effort (i) to prevent the issuance by the Commission, the Agencies OTS, or any other state authority of any such order and, if any such order shall at any time be issued and issued, (ii) to obtain the lifting thereof at the earliest possible time.
(de) The Company and the Bank will deliver to the Agent and to its counsel two conformed copies of the Registration Statement, the Conversion Application and the Holding Company Application, as originally filed, filed and of each amendment or supplement thereto, including all exhibits. Further, the Company and the Bank will deliver such additional copies of the foregoing documents to counsel to the Agent as may be required for any NASD and "blue sky" filings.
(ef) The Company and the Bank will furnish to the Agent, from time to time during the period when the Prospectus (or any later prospectus related to this offering) is required to be delivered under the 1933 Act or the Securities Exchange Act of 1934 (the "1934 Act"), such number of copies of such Prospectus (as amended or supplemented) as the Agent may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the rules and regulations promulgated under the 1934 Act (the "1934 Act Regulations"). The Company authorizes the Agent to use the Prospectus (as amended or supplemented, if amended or supplemented) in any lawful manner contemplated by the Plan in connection with the sale of the Shares by the Agent.
(fg) The Company and the Bank will comply with any and all material terms, conditions, requirements and provisions with respect to the Offering, Conversion and the transactions contemplated thereby, thereby imposed by the Commission, the Agencies OTS or the Conversion Regulations or the BHC ActRegulations, and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations to be complied with prior to or subsequent to the Closing Date and when the Prospectus is required to be delivered, and during such time period the Company and the Bank will comply, at their own expense, with all material requirements imposed upon them by the Commission, the Agencies OTS or the Conversion Regulations, the BHC Act and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, including, without limitation, Rule 10b-5 under the 1934 Act, in each case as from time to time in force, so far as necessary to permit the continuance of sales or dealing in the Common Stock Shares during such period in accordance with the provisions hereof and the Prospectus.
(gh) If, at any time during the period when the Prospectus relating to the Shares is required to be delivered, any event relating to or affecting the Company or the Bank shall occur, as a result of which it is necessary or appropriate, in the opinion of counsel for the Company and the Bank or in the reasonable opinion of the Agent's counsel, to amend or supplement the Registration Statement or Prospectus in order to make the Registration Statement or Prospectus not misleading in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, the Company and the Bank will immediately so inform the Agent and prepare and file, at their own expense, with the Commission Commission, and the Agencies OTS and furnish to the Agent a reasonable number of copies of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or Prospectus (in form and substance reasonably satisfactory to the Agent and its counsel after a reasonable time for review) which will amend or supplement the Registration Statement or Prospectus so that as amended or supplemented it will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading. For the purpose of this Agreement, the Company and the Bank each will timely furnish to the Agent such information with respect to itself as the Agent may from time to time reasonably request.
(hi) The Company and the Bank will take all necessary actions, actions in cooperating with the Agent, Agent and furnish to whomever the Agent may direct, direct such information as may be required to qualify or register the Shares for offering and sale by the Company or to exempt such Shares from registration, or to exempt the Company as a broker-dealer and its officers, directors and employees as broker-dealers or agents under the applicable securities or blue sky laws of such jurisdictions in which the Shares are required under the Conversion Regulations to be sold or as the Agent and the Company and the Bank may reasonably agree upon; provided, however, that the Company shall not be obligated to file any general consent to service of process, to qualify to do business in any jurisdiction in which it is not so qualified, or to register its directors or officers as brokers, dealers, salesmen or agents in any jurisdiction. In each jurisdiction where any of the Shares shall have been qualified or registered as above provided, the Company will make and file such statements and reports in each fiscal period as are or may be required by the laws of such jurisdiction.
(ij) The Bank shall duly establish and maintain the liquidation account for the benefit of Eligible Account Holders and Supplemental Eligible Account Holders will be duly established and maintained in accordance with the requirements of the Conversion RegulationsOTS, and such Eligible Account Holders and Supplemental Eligible Account Holders who continue to maintain their savings accounts in the Bank will have an inchoate interest in their pro rata portion of the liquidation account, which shall have a priority superior to that of the holders of the Common Shares in the event of a complete liquidation of the Bank.
(jk) The Company and the Bank will not sell or issue, contract to sell or otherwise dispose of, for a period of 180 90 days after the Closing Date, without the Agent's prior written consent, any Common Stock of their common shares, other than the Shares or other than in connection with any plan or arrangement described in the Prospectus, including existing stock benefit plans.
(kl) The Company shall register its Common Stock Shares under Section 12(g) of the 1934 Act on or prior to concurrently with the Closing Date pursuant to the Plan Offering and shall request that such registration be effective prior to or upon completion of the OfferingConversion. The Company shall maintain the effectiveness of such registration for not less than three years or such shorter period as may be required by the AgenciesOTS.
(lm) During the period during which the Company's Common Stock is Shares are registered under the 1934 Act or for three (3) years from the date hereof, whichever period is greater, the Company will furnish to its shareholders as soon as practicable after the end of each fiscal year an annual report of the Company (including a consolidated balance sheet and statements of consolidated income, shareholders' equity and cash flows of the Company and its subsidiaries as at the end of and for such year, certified by independent public accountants in accordance with Regulation S-X under the 1933 Act and the 1934 Act).
(mn) During the period of three years from the date hereof, the Company will furnish to the Agent: (i) as soon as practicable after such information is publicly available, a copy of each report of the Company furnished to or filed with the Commission under the 1934 Act or any national securities exchange or system on which any class of securities of the Company is listed or quoted (including, but not limited to, reports on Forms 10-KSBK, 10-QSB Q and 8-K and all proxy statements and annual reports to stockholders), (ii) a copy of each other non-confidential report of the Company mailed to its stockholders shareholders or filed with the Commission, the Agencies OTS or any other supervisory or regulatory authority or any national securities exchange or system on which any class of securities of the Company is listed or quoted, each press release and material news items and additional documents and information with respect to the Company or the Bank as the Agent may reasonably request; and (iii) from time to time, such other nonconfidential information concerning the Company or the Bank as the Agent may reasonably request.
(no) The Company and the Bank will use the net proceeds from the sale of the Shares in the manner set forth in the Prospectus under the caption "How We Intend to Use the of Proceeds."
(op) Other than as permitted by the Conversion Regulations, the BHC ActHOLA, the 1933 Act, the 1933 Act Regulations, Regulations and its rules and regulations and the laws of any state in which the Shares are registered or qualified for sale or exempt from registration, neither the Company nor the Bank will distribute any prospectus, offering circular or other offering material in connection with the offer and sale of the Shares.
(pq) The Company will use its best efforts to (i) encourage and assist a market maker to establish and maintain a market for the Shares and (ii) list and maintain quotation of the Shares on the OTC Bulletin Board a national or regional securities exchange or on The Nasdaq Stock Market effective on or prior to the Closing Date.
(qr) The Bank will maintain appropriate arrangements for depositing all funds received from persons mailing subscriptions for or orders to purchase Shares in the Offering on an interest-bearing basis at the rate described in the Prospectus until the Closing Date and satisfaction of all conditions precedent to the release of the Bank's obligation to refund payments received from persons subscribing for or ordering Shares in the Offering in accordance with the Plan and as described in the Prospectus or until refunds of such funds have been made to the persons entitled thereto or withdrawal authorizations canceled in accordance with the Plan and as described in the Prospectus. The Bank will maintain such records of all funds received to permit the funds of each subscriber to be separately insured by the FDIC (to the maximum extent allowable) and to enable the Bank to make the appropriate refunds of such funds in the event that such refunds are required to be made in accordance with the Plan and as described in the Prospectus.
(rs) The Company will promptly take all necessary action to register as a savings and loan holding company under the HOLA.
(t) The Company and the Bank will take such actions and furnish such information as are reasonably requested by the Agent in order for the Agent to ensure compliance with the NASD's "Interpretation Relating to Free Riding and Withholding."
(su) Neither the Company nor the Bank will amend the Plan of Conversion without notifying the Agent prior thereto.
(tv) The Company shall assist the Agent, if necessary, in connection with the allocation of the Shares in the event of an oversubscription and shall provide the Agent with any information necessary to assist the Company in allocating the Shares in such event and such information shall be accurate and reliable in all material respects.
(uw) Prior to the Closing Date, the Company and the Bank will inform the Agent of any event or circumstances of which it is aware as a result of which the Registration Statement and/or Prospectus, as then amended or supplemented, would contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading.
(vx) Subsequent to the date the Registration Statement is declared effective by the Commission and prior to the Closing Date, except as otherwise may be indicated or contemplated therein or set forth in an amendment or supplement thereto, neither the Company nor the Bank will have: (i) issued any securities or incurred any liability or obligation, direct or contingent, for borrowed money, except borrowings from the same or similar sources indicated in the Prospectus in the ordinary course of its business, or (ii) entered into any transaction which is material in light of the business and properties of the Company and the Bank, taken as a whole.
(w) The Company will promptly take all necessary action to register as a bank holding company under the BHC Act.
(xy) The facts and representations provided to Jenkens Xxxxx, Xxxx, Xxxxxxx & Xxxxxxxxx Xxxxxxx L.L.P. by the Bank and the Company and upon which Xxxxx, Xxxx, Xxxxxxx & Xxxxxxxxx Xxxxxxx L.L.P. will base its opinion under Section 8(c)(17(c)(1) are and will be truthful, accurate and complete.
Appears in 1 contract
Samples: Agency Agreement (PFS Bancorp Inc)
Covenants of the Company and the Bank. The Company and the Bank hereby jointly and severally covenant with the Agent as follows:
(a) The Company will not, at any time after the date the Registration Statement is declared effective, not file any amendment or supplement to the Registration Statement without providing the Agent and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably object.
(b) Neither the The Bank nor the Company will, at any time after the Conversion Application and Holding Company Application are approved by the Agencies, will not file any amendment or supplement to such Applications the Conversion Application without providing the Agent and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably object.
(c) The Company will not file any amendment or supplement to the Holding Company Application without providing the Agent and its counsel an opportunity to review the nonconfidential portions of such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably object.
(d) The Company and the Bank will use their best efforts to cause any post-post effective amendment to the Registration Statement to be declared effective by the Commission and any post-approval amendment to the Conversion Application and Holding Company Application to be approved by the Agencies OTS and will immediately upon receipt of any information concerning the events listed below notify the Agent: (i) when the Registration Statement, as amended, has become effective; (ii) when the Conversion Application and Holding Company Application, as amended have amended, has been approved by the AgenciesOTS; (iii) when the Bank or the Company receives any comments from the Commission, the Agencies OTS, or any other governmental entity with respect to the Offering Conversion or the transactions contemplated by this Agreement; (iv) of the request by when the Commission, the Agencies OTS, or any other governmental entity for requests any amendment or supplement to the Registration Statement, the Conversion Application and the Holding Company Application or for any additional information; (v) of the issuance by the Commission, the Agencies OTS, or any other governmental entity of any order or other action suspending the Offering or the use of the Registration Statement or the Prospectus or any other filing of the Company or the Bank under the Conversion Regulations, BHC Act or other applicable law, or the threat of any such action; (vi) the issuance by the Commission, the Agencies OTS, or any authority of any stop order suspending the effectiveness of the Registration Statement or of the initiation or threat of initiation or threat of any proceedings for that purpose; or (vii) of the occurrence of any event mentioned in paragraph (gh) below. The Company and the Bank will make every reasonable effort (i) to prevent the issuance by the Commission, the Agencies OTS, or any other state authority of any such order and, if any such order shall at any time be issued and issued, (ii) to obtain the lifting thereof at the earliest possible time.
(de) The Company and the Bank will deliver to the Agent and to its counsel two conformed copies of the Registration Statement, the Conversion Application and the Holding Company Application, as originally filed, filed and of each amendment or supplement thereto, including all exhibits. Further, the Company and the Bank will deliver such additional copies of the foregoing documents to counsel to the Agent as may be required for any NASD and "blue sky" filings.
(ef) The Company and the Bank will furnish to the Agent, from time to time during the period when the Prospectus (or any later prospectus related to this offering) is required to be delivered under the 1933 Act or the Securities Exchange Act of 1934 (the "1934 Act"), such number of copies of such Prospectus (as amended or supplemented) as the Agent may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the rules and regulations promulgated under the 1934 Act (the "1934 Act Regulations"). The Company authorizes the Agent to use the Prospectus (as amended or supplemented, if amended or supplemented) in any lawful manner contemplated by the Plan in connection with the sale of the Shares by the Agent.
(fg) The Company and the Bank will comply with any and all material terms, conditions, requirements and provisions with respect to the Offering, Conversion and the transactions contemplated thereby, thereby (including those conditions relating to the establishment and operations of the Foundation) imposed by the Commission, the Agencies OTS or the Conversion Regulations or the BHC ActRegulations, and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations to be complied with prior to or subsequent to the Closing Date and when the Prospectus is required to be delivered, and during such time period the Company and the Bank will comply, at their own expense, with all material requirements imposed upon them by the Commission, the Agencies OTS or the Conversion Regulations, the BHC Act and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, including, without limitation, Rule 10b-5 under the 1934 Act, in each case as from time to time in force, so far as necessary to permit the continuance of sales or dealing in the Common Stock Shares during such period in accordance with the provisions hereof and the Prospectus.
(gh) If, at any time during the period when the Prospectus relating to the Shares is required to be delivered, any event relating to or affecting the Company or the Bank shall occur, as a result of which it is necessary or appropriate, in the opinion of counsel for the Company and the Bank or in the reasonable opinion of the Agent's counsel, to amend or supplement the Registration Statement or Prospectus in order to make the Registration Statement or Prospectus not misleading in light of the circumstances existing at the time the Prospectus is delivered to a purchaserdelivered, the Company and the Bank will immediately so inform the Agent and prepare and file, at their own expense, prepare and file with the Commission Commission, and the Agencies OTS and furnish to the Agent a reasonable number of copies of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or Prospectus (in form and substance reasonably satisfactory to the Agent and its counsel after a reasonable time for review) which will amend or supplement the Registration Statement or Prospectus so that as amended or supplemented it will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading. For the purpose of this Agreement, the Company and the Bank each will timely furnish to the Agent such information with respect to itself as the Agent may from time to time reasonably request.
(hi) The Company and the Bank will take all necessary actions, actions in cooperating with the Agent, Agent and furnish to whomever the Agent may direct, direct such information as may be required to qualify or register the Shares for offering and sale by the Company or to exempt such Shares from registration, or to exempt the Company as a broker-dealer and its officers, directors and employees as broker-dealers or agents under the applicable securities or blue sky laws of such jurisdictions in which the Shares are required under the Conversion Regulations to be sold or as the Agent and the Company and the Bank may reasonably agree upon; provided, however, that the Company shall not be obligated to file any general consent to service of process, to qualify to do business in any jurisdiction in which it is not so qualified, or to register its directors or officers as brokers, dealers, salesmen or agents in any jurisdiction. In each jurisdiction where any of the Shares shall have been qualified or registered as above provided, the Company will make and file such statements and reports in each fiscal period as are or may be required by the laws of such jurisdiction.
(ij) The Bank shall duly establish and maintain the liquidation account for the benefit of Eligible Account Holders and Supplemental Eligible Account Holders in accordance with the requirements of the Conversion RegulationsOTS, and such Eligible Account Holders and Supplemental Eligible Account Holders who continue to maintain their savings accounts in the Bank will have an inchoate interest in their pro rata portion of the liquidation account, which shall have a priority superior to that of the holders of the Common Shares in the event of a complete liquidation of the Bank.
(jk) The Company and the Bank will not sell or issue, contract to sell or otherwise dispose of, for a period of 180 days after the Closing Date, without the Agent's prior written consent, any Common Stock other than the Shares or of their capital stock, other than in connection with any plan or arrangement described in the Prospectus, including existing stock benefit plans.
(kl) The Company shall register its Common Stock Shares under Section 12(g) of the 1934 Act on or prior to concurrently with the Closing Date pursuant to the Plan Offering and shall request that such registration be effective prior to or upon completion of the OfferingConversion. The Company shall maintain the effectiveness of such registration for not less than three years or such shorter period as may be required by the AgenciesOTS.
(lm) During the period during which the Company's Common Stock is Shares are registered under the 1934 Act or for three (3) years from the date hereof, whichever period is greater, the Company will furnish to its shareholders as soon as practicable after the end of each fiscal year an annual report of the Company in accordance with the 1934 Act Regulations (including a consolidated balance sheet and statements of consolidated income, shareholders' equity and cash flows of the Company and its subsidiaries as at the end of and for such year, certified by independent public accountants in accordance with Regulation S-X under the 1933 Act and the 1934 Act).
(mn) During the period of three years from the date hereof, the Company will furnish to the Agent: (i) as soon as practicable after such information is publicly available, a copy of each report of the Company furnished to or filed with the Commission under the 1934 Act or any national securities exchange or system on which any class of securities of the Company is listed or quoted (including, but not limited to, reports on Forms 10-KSBK, 10-QSB Q and 8-K and all proxy statements and annual reports to stockholders), (ii) a copy of each other non-confidential report of the Company mailed to its stockholders shareholders or filed with the Commission, the Agencies OTS or any other supervisory or regulatory authority or any national securities exchange or system on which any class of securities of the Company is listed or quoted, each press release and material news items and additional documents and information with respect to the Company or the Bank as the Agent may reasonably request; and (iii) from time to time, such other nonconfidential information concerning the Company or the Bank as the Agent may reasonably request.
(no) The Company and the Bank will use the net proceeds from the sale of the Shares in the manner set forth in the Prospectus under the caption "How We Intend to Use the Proceeds."
(op) Other than as permitted by the Conversion Regulations, the BHC ActHOLA, the 1933 Act, the 1933 Act Regulations, Regulations and its rules and regulations and the laws of any state in which the Shares are registered or qualified for sale or exempt from registration, neither the Company nor the Bank will distribute any prospectus, offering circular or other offering material in connection with the offer and sale of the Shares.
(pq) The Company will use its best efforts to (i) encourage and assist a three market maker makers to establish and maintain a market for the Shares and (ii) list and maintain quotation of the Shares on the OTC Bulletin Board a national or regional securities exchange or on The Nasdaq Stock Market effective on or prior to the Closing Date.
(qr) The Bank will maintain appropriate arrangements for depositing all funds received from persons mailing subscriptions for or orders to purchase Shares in the Offering on an interest-bearing basis at the rate described in the Prospectus until the Closing Date and satisfaction of all conditions precedent to the release of the Bank's obligation to refund payments received from persons subscribing for or ordering Shares in the Offering in accordance with the Plan and as described in the Prospectus or until refunds of such funds have been made to the persons entitled thereto or withdrawal authorizations canceled in accordance with the Plan and as described in the Prospectus. The Bank will maintain such records of all funds received to permit the funds of each subscriber to be separately insured by the FDIC (to the maximum extent allowable) and to enable the Bank to make the appropriate refunds of such funds in the event that such refunds are required to be made in accordance with the Plan and as described in the Prospectus.
(rs) The Company will promptly take all necessary action to register as a savings and loan holding company under the HOLA.
(t) The Company and the Bank will take such actions and furnish such information as are reasonably requested by the Agent in order for the Agent to ensure compliance with the NASD's "Interpretation Relating to Free Riding and Withholding."
(su) Neither the Company nor the Bank will amend the Plan of Conversion without notifying the Agent prior thereto.
(tv) The Company shall assist the Agent, if necessary, in connection with the allocation of the Shares in the event of an oversubscription and shall provide the Agent with any information necessary to assist the Company in allocating the Shares in such event and such information shall be accurate and reliable in all material respects.
(uw) Prior to the Closing Date, the Company and the Bank will inform the Agent of any event or circumstances of which it is aware as a result of which the Registration Statement and/or Prospectus, as then amended or supplemented, would contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading.
(vx) Subsequent to the date the Registration Statement is declared effective by the Commission and prior to the Closing Date, except as otherwise may be indicated or contemplated therein or set forth in an amendment or supplement thereto, neither the Company nor the Bank will have: (i) issued any securities or incurred any liability or obligation, direct or contingent, for borrowed money, except borrowings from the same or similar sources indicated in the Prospectus in the ordinary course of its business, or (ii) entered into any transaction which is material in light of the business and properties of the Company and the Bank, taken as a whole.
(wy) The Company will promptly take all necessary action to register as a bank holding company under the BHC Act.
(x) The facts and representations provided to Jenkens & Xxxxxxxxx by the Bank will take no action which will result in the possible loss of the Foundation's tax-exempt status; and neither the Company and upon which Xxxxxxx & Xxxxxxxxx nor the Bank will base its opinion under Section 8(c)(1) are and contribute any additional assets to the Foundation until such time that such additional contributions will be truthful, accurate deductible for federal and completestate income tax purposes.
Appears in 1 contract
Samples: Agency Agreement (MFS Financial Inc)
Covenants of the Company and the Bank. The Company and the Bank hereby jointly and severally covenant and agree with the Agent as followsXxxxx that:
(a) The Company will not, at any time after the date the Registration Statement is declared effective, file any amendment or supplement to the Registration Statement without providing the Agent and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably object.
(b) Neither the Bank nor the Company will, at any time after the Conversion Application and Holding Company Application are approved by the Agencies, file any amendment or supplement to such Applications without providing the Agent and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably object.
(c) The Company and the Bank will use their best efforts to cause any post-effective amendment to the Registration Statement to be declared effective by the Commission and any post-approval amendment to the Conversion Application and Holding Company Application to be approved by the Agencies and will immediately upon the receipt of any information concerning the events listed below notify Xxxxx and promptly confirm the Agentnotice in writing: (i) when any post-effective amendment to the Registration Statement, as amended, Statement or any supplement to the Prospectus has become effectivebeen filed; (ii) when the Conversion Application and Holding Company Application, as amended have been approved by the Agencies; (iii) any comments from the Commission, the Agencies or any other governmental entity with respect to the Offering or the transactions contemplated by this Agreement; (iv) of the request by the Commission, the Agencies or any other governmental entity for any amendment or supplement to the Registration Statement, the Conversion Application and the Holding Company Application or for additional information; (v) of the issuance by the Commission, the Agencies or any other governmental entity Commission of any order or other action suspending the Offering or the use of the Registration Statement or the Prospectus or any other filing of the Company or the Bank under the Conversion Regulations, BHC Act or other applicable law, initiation or the threat of any such action; (vi) the issuance by the Commission, the Agencies or any authority of any stop order suspending the effectiveness of the Registration Statement or of the initiation or threat of initiation or threat of any proceedings for that purpose; or (viiiii) of the occurrence receipt of any event mentioned notice with respect to the suspension of the qualification of the Shares for offering or sale in paragraph any jurisdiction; and (giv) belowof the receipt of any comments or requests for additional information or any amendment or supplement from the staff of the Commission relating to the Registration Statement. The Company will use its reasonable, good faith and the Bank will make every reasonable effort (i) diligent efforts to prevent the issuance by the Commission, the Agencies Commission or any state other governmental authority of any such order and, if any such order shall at any time be issued and (ii) issued, to obtain the lifting lifting, termination or withdrawal thereof at the earliest possible time.
(db) The Company and During the Bank will deliver to the Agent and to its counsel two conformed copies of the Registration Statement, the Conversion Application and the Holding Company Application, as originally filed, and of each amendment or supplement thereto, including all exhibits. Further, the Company and the Bank will deliver such additional copies of the foregoing documents to counsel to the Agent as may be required for any NASD and "blue sky" filings.
(e) The Company and the Bank will furnish to the Agent, from time to time during the period when the Prospectus (or any later a prospectus related to this offering) is required to be delivered under the 1933 Act or Act, the Securities Exchange Act of 1934 (the "1934 Act"), such number of copies of such Prospectus (as amended or supplemented) as the Agent may reasonably request for the purposes contemplated Company will comply with all requirements imposed upon it by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the rules as now in effect and regulations promulgated under the 1934 Act (the "1934 Act Regulations"). The Company authorizes the Agent to use the Prospectus (as amended or supplemented, if amended or supplemented) in any lawful manner contemplated by the Plan in connection with the sale of the Shares by the Agent.
(f) The Company and the Bank will comply with any and all material terms, conditions, requirements and provisions with respect to the Offering, and the transactions contemplated thereby, imposed by the Commission, the Agencies or the Conversion Regulations or the BHC Acthereafter amended, and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations to be complied with prior to or subsequent to the Closing Date and when the Prospectus is required to be delivered, and during such time period the Company and the Bank will comply, at their own expense, with all material requirements imposed upon them by the Commission, the Agencies or the Conversion Regulations, the BHC Act and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, including, without limitation, Rule 10b-5 under the 1934 Act, in each case as from time to time in force, so far as necessary to permit the continuance of offers and sales of or dealing dealings in the Common Stock during such period Shares in accordance with the provisions hereof and the Prospectus.
(g) . If, at any time during the period when the Prospectus relating to the Shares is required to be delivereddelivered under the 1933 Act, any event relating to or affecting the Company or the Bank shall occur, have occurred as a result of which it is necessary or appropriatewhich, in the opinion of counsel for the Company and the Bank or in the reasonable opinion of the Agent's counselcounsel for Xxxxx, to amend or supplement the Registration Statement or Prospectus in order to make the Registration Statement or Prospectus not misleading in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, the Company and the Bank will immediately so inform the Agent and prepare and file, at their own expense, with the Commission and the Agencies and furnish to the Agent a reasonable number of copies of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or Prospectus (in form and substance reasonably satisfactory to the Agent and its counsel after a reasonable time for review) which will amend or supplement the Registration Statement or Prospectus so that as then amended or supplemented it will not contain includes an untrue statement of a material fact or omit omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with the 1933 Act, the Company shall promptly notify Xxxxx in writing and prepare and file with the Commission an appropriate amendment or supplement. The Company shall provide Xxxxx and Xxxxx'x counsel notice of the Company's intention to file any amendment or supplement to the Registration Statement or the Prospectus and shall not file or use any amendment or supplement to the Registration Statement or the Prospectus of which Xxxxx has not first been furnished a copy and given a reasonable amount of time to review such copy or to which Xxxxx shall reasonably object. For the purposes of and during the time frame contemplated by this subsection (b), each of the Company and the Bank shall timely furnish such information with respect to itself as Xxxxx may from time to time reasonably request. The Bank shall not amend, without Xxxxx'x prior written consent (which consent shall not be unreasonably withheld), the Plan of Conversion in any manner that, in the reasonable opinion of Xxxxx, would materially and adversely affect the sale of the Shares or the terms of this Agreement. Prior to the Closing Date, neither the Company nor the Bank shall issue any press release or other public communication with respect to the Company or the Bank or the Conversion without first providing to Xxxxx a copy of such release or other communication and allowing Xxxxx a reasonable amount of time to review such copy. Except as otherwise required by law, neither the Company nor the Bank shall issue any release or other communication prior to the Closing Date to which Xxxxx shall reasonably object.
(c) The Bank shall not file any amendment or supplement to the Form AC, including the Bank's Proxy Statement and Prospectus contained therein, without notifying Xxxxx and without providing Xxxxx and Xxxxx'x counsel an opportunity to review such amendment. The Bank shall not file any amendment or supplement to the Form AC to which Xxxxx shall reasonably object. Xxxxx shall have a reasonable amount of time to review any amendment or supplement to the Form AC.
(d) The Company or the Bank shall immediately upon receipt of any information concerning the events listed below notify Xxxxx and promptly confirm the notice in writing: (i) of the request by the OTS, or any other governmental entity, for any amendment or supplement to the Form AC or for additional information relating to the Form AC or the holding Company Application; or (ii) of the issuance by the OTS, or any other governmental entity, of any order or other action suspending the use of the Prospectus, Proxy Statement or any other filing of the Bank under the HOLA or other applicable law or regulations, or the initiation or threat of any such action. The Company and the Bank will each use its reasonable, good faith and diligent efforts to prevent the issuance by the OTS, or any other governmental entity, of any such order and, if any such order shall at any time be issued, to obtain the lifting, termination or withdrawal thereof at the earliest possible time.
(e) During the time when the Proxy Statement is required to be delivered under the Conversion Regulations, the Bank will comply with all requirements imposed upon it by the Conversion Regulations. If, at any time prior to the date of the Special Meeting (as defined in the Prospectus) of the Bank's members with respect to which the Proxy Statement is delivered, any event shall have occurred as a result of which, in the opinion of counsel for the Bank or counsel for Xxxxx, the Proxy Statement includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaserunder which they were made, not misleading, or if it is necessary at any time to amend or supplement the Proxy Statement to comply with the Conversion Regulations, the Bank shall notify Xxxxx in writing and prepare and file with the OTS, at the Bank's expense, an appropriate amendment or supplement. The Bank shall not file or use any amendment or supplement to the Proxy Statement of which Xxxxx has not first been furnished a copy or to which Xxxxx shall reasonably object. For the purpose of and during the time frame contemplated by this Agreementsubsection (e), the Company and the Bank each will shall timely furnish to the Agent such information with respect to itself as the Agent Xxxxx may from time to time reasonably request.
(hf) The Company and the Bank shall deliver to Xxxxx, without charge, such number of copies of the Registration Statement (including all exhibits), the Holding Company Application (including all exhibits) and the Form AC (including all exhibits) as originally filed and each amendment, including, without limitation, any post-effective amendment, thereto as Xxxxx may reasonably request. The Company will furnish to Xxxxx, from time to time during such period as the Prospectus is required by law to be delivered in connection with offers and sales of the Shares, such number of copies of the Prospectus (as amended or supplemented, if amended or supplemented) as Xxxxx may reasonably request. The Company authorizes Xxxxx, all members of any selling group which may be formed in connection with the distribution of the Shares, and all dealers to whom any of the Shares may be sold by members of the selling group, to use the Prospectus (as amended or supplemented, if amended or supplemented) in connection with the sale of the Shares.
(g) The Company and the Bank have taken or shall take all necessary actionsaction, in cooperating cooperation with the AgentXxxxx, and furnish to whomever the Agent may direct, such information as may be required to qualify or register the Shares for offering offer and sale by the Company or to exempt such Shares from registration, or to exempt the Company as a broker-dealer and its officers, directors and employees as broker-dealers or agents under the applicable securities or blue sky "Blue Sky" laws of such jurisdictions in which the Shares are required under by the Conversion Regulations to be sold offered or as the Agent Xxxxx and the Company and the Bank may shall reasonably agree uponto designate; provided, however, that neither the Company nor the Bank shall not be obligated to qualify as a foreign corporation to do business under the laws of any such jurisdiction or to file any general consent to service of process.
(h) The Company shall make generally available to its security holders as soon as practicable, to qualify to do business in any jurisdiction in which it is but not so qualified, or to register its directors or officers as brokers, dealers, salesmen or agents in any jurisdiction. In each jurisdiction where any later than the first day of the Shares shall have been qualified or registered as above provided15th full calendar month following the effective date of the Registration Statement, an earnings statement of the Company will make and file such statements and reports in each fiscal period as are or may its consolidated subsidiaries (which need not be certified by independent certified public accountants unless required by the laws 1933 Act or the Regulations, but which shall satisfy the provisions of such jurisdictionRule 158 under the 1933 Act) covering a period of at least 12 months beginning after the effective date of the Registration Statement.
(i) Title Company shall file a registration statement for the Common Stock under Section 12(g) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), prior to completion of the stock offering pursuant to the Plan of Conversion and will request that such registration statement be effective upon completion of the Conversion. The Bank shall duly establish Company will maintain the effectiveness of such registration for not less than three years. The Company will use its reasonable, good faith and diligent efforts to obtain approval for and maintain the liquidation account for the benefit of Eligible Account Holders and Supplemental Eligible Account Holders in accordance with the requirements of the Conversion Regulations, and such Eligible Account Holders and Supplemental Eligible Account Holders who continue to maintain their savings accounts in the Bank will have an inchoate interest in their pro rata portion of the liquidation account, which shall have a priority superior to that of the holders quotation of the Shares in on The Nasdaq National Market effective on or prior to the event of a complete liquidation of the Bank.
(j) Closing Date. The Company and the Bank will not sell or issue, contract to sell or otherwise dispose of, for a period of 180 90 days after the Closing Date, without the Agent's Xxxxx'x prior written consent, which consent shall not be unreasonably withheld, any shares of Common Stock other than the Shares or other than in connection with any plan or arrangement described in the ProspectusProspectus (and the Company shall notify Xxxxx of any such sale, including existing stock benefit plansissuance, contract or disposition pursuant to such plan or arrangement).
(k) The Company shall register its Common Stock under Section 12(g) of the 1934 Act on or prior to the Closing Date pursuant to the Plan and shall request that such registration be effective prior to or upon completion of the Offering. The Company shall maintain the effectiveness of such registration for not less than three years or such shorter period as may be required by the Agencies.
(lj) During the period during which the Company's Common Stock is registered under the 1934 Act or for of three years from the date hereof, whichever period is greaterhereafter, the Company will furnish shall furnish: (i) to its shareholders security holders and to Xxxxx, as soon as practicable after the end of each fiscal year an annual report of the Company (including a consolidated Company, an audited balance sheet and statements of consolidated incomeoperations, shareholdersstockholders' equity and cash flows of the Company and its subsidiaries changes in financial position as at the end of and for such year; (ii) to Xxxxx, certified by independent public accountants in accordance with Regulation S-X under the 1933 Act and the 1934 Act).
(m) During the period of three years from the date hereof, the Company will furnish to the Agent: (i) as soon as practicable after the end of each of the first three quarters of each fiscal year, a balance sheet and statement of operations of the Company (which need not be audited) as at the end of and for such information is publicly quarter and the year to date and as at the end of and for the corresponding periods of the preceding fiscal year; (iii) to Xxxxx, as soon as available, a copy of each report of the Company furnished to or filed with the Commission under the 1934 Act or any national securities exchange or system on which any class of securities of the Company is listed or quoted (including, but not limited to, reports on Forms 10-KSB, 10-QSB and 8-K and all proxy statements and annual reports to stockholders), (ii) a copy of each other non-confidential report of the Company mailed to its stockholders or filed with the CommissionCommission pursuant to the Exchange Act or otherwise (including, without limitation, reports on Forms 10-K, 10-Q and 8-K, and all proxy statements and annual reports to stockholders), or the Agencies OTS or any other supervisory or regulatory authority or any national securities exchange or system on which any class of securities of the Company is listed or quoted, including, but not limited to, the Nasdaq National Market, other than on a confidential basis; (iv) to Xxxxx, each press release and material news items item and article released by the Company or the Bank; and (v) such additional publicly available documents and information with respect to and issued or prepared by the Company or and the Bank as the Agent Xxxxx may reasonably request; and (iii) from time to time. During any period when the Company has an active subsidiary or subsidiaries, such other nonconfidential information concerning financial statements will be on a consolidated basis to the extent the accounts of the Company and its subsidiary or the Bank as the Agent may reasonably requestsubsidiaries are consolidated.
(nk) The Company shall furnish to Xxxxx as early as practicable prior to the Closing Date, but no later than two full business days prior thereto, a copy of the latest available unaudited interim financial statements of the Bank which have been read by KPMG Peat Marwick LLP, as stated in their letters to be furnished pursuant to subsections (g) and (h) of Section 7 hereof.
(l) The Company and the Bank shall take such actions and furnish such information as are reasonably requested by Xxxxx in order for Xxxxx to ensure compliance with the NASD's "Interpretation Relating to Free-Riding and Withholding."
(m) The Company shall not deliver the Shares until the Company and the Bank each have satisfied or caused to be satisfied each condition set forth in Section 7 hereof unless such condition is waived. The Company and the Bank shall use their reasonable, good faith and diligent efforts to comply with or cause to be complied with the conditions precedent to the obligations of Xxxxx as specified in Section 7 hereof.
(n) Prior to the Closing Date, the Company and the Bank shall conduct their respective businesses in compliance with, in all material respects, all applicable federal and state laws, rules, regulations, decisions, directives and orders, including all decisions, directives and orders of the FDIC and the OTS and consistent with prior business practices of the Company and the Bank.
(o) The Company and the Bank shall comply with any and all terms, conditions, requirements and provisions with respect to the Conversion and the transactions contemplated thereby imposed by the OTS, the HOLA, the Commission, the 1933 Act, the Regulations (including, without limitation, the filing of reports on Form SR pursuant to Rule 463 of the Regulations or any successor provision), the Exchange Act and the regulations promulgated by the Commission pursuant to the Exchange Act to be complied with subsequent to the Closing Date. The Company will use comply with all provisions of all undertakings contained in the net Registration Statement. The liquidation account for the benefit of Eligible Account Holders and Supplemental Eligible Account Holders (as defined in the Prospectus) of the Bank shall be duly established and maintained in accordance with the requirements of the OTS.
(p) The Company shall apply the proceeds from the sale of the Shares in the manner set forth in the Prospectus under the caption "How We Intend to Use the of Proceeds."
(o) Other than as permitted by the Conversion Regulations, the BHC Act, the 1933 Act, the 1933 Act Regulations, and the laws of any state in which the Shares are registered or qualified for sale or exempt from registration, neither the Company nor the Bank will distribute any prospectus, offering circular or other offering material in connection with the offer and sale of the Shares.
(p) The Company will use its best efforts to (i) encourage and assist a market maker to establish and maintain a market for the Shares and (ii) list and maintain quotation of the Shares on the OTC Bulletin Board effective on or prior to the Closing Date.
(q) The Bank will maintain appropriate arrangements for depositing all funds received from persons mailing subscriptions for or orders to purchase Shares in the Offering on an interest-bearing basis at the rate described in the Prospectus until the Closing Date and satisfaction of all conditions precedent to the release of the Bank's obligation to refund payments received from persons subscribing for or ordering Shares in the Offering in accordance with the Plan and as described in the Prospectus or until refunds of such funds have been made to the persons entitled thereto or withdrawal authorizations canceled in accordance with the Plan and as described in the Prospectus. The Bank will maintain such records of all funds received to permit the funds of each subscriber to be separately insured by the FDIC (to the maximum extent allowable) and to enable the Bank to make the appropriate refunds of such funds in the event that such refunds are required to be made in accordance with the Plan and as described in the Prospectus.
(r) The Company and the Bank will take such actions and furnish such information as are reasonably requested by the Agent in order for the Agent to ensure compliance with the NASD's "Interpretation Relating to Free Riding and Withholding."
(s) Neither the Company nor the Bank will amend the Plan without notifying the Agent prior thereto.
(t) The Company shall assist the Agent, if necessary, in connection with the allocation of the Shares in the event of an oversubscription and shall provide the Agent with any information necessary to assist the Company in allocating the Shares in such event and such information shall be accurate and reliable in all material respects.
(u) Prior to the Closing Date, the Company and the Bank will inform the Agent of any event or circumstances of which it is aware as a result of which the Registration Statement and/or Prospectus, as then amended or supplemented, would contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading.
(v) Subsequent to the date the Registration Statement is declared effective by the Commission and prior to the Closing Date, except as otherwise may be indicated or contemplated therein or set forth in an amendment or supplement thereto, neither the Company nor the Bank will have: (i) issued any securities or incurred any liability or obligation, direct or contingent, for borrowed money, except borrowings from the same or similar sources indicated in the Prospectus in the ordinary course of its business, or (ii) entered into any transaction which is material in light of the business and properties of the Company and the Bank, taken as a whole.
(w) The Company will promptly take all necessary action to register as a bank holding company under the BHC Act.
(x) The facts and representations provided to Jenkens & Xxxxxxxxx by the Bank and the Company and upon which Xxxxxxx & Xxxxxxxxx will base its opinion under Section 8(c)(1) are and will be truthful, accurate and complete.
Appears in 1 contract
Covenants of the Company and the Bank. The Company and the Bank hereby jointly and severally covenant with the Agent as follows:
(a) The Company will not, at any time after the date the Registration Statement is declared effective, file any amendment or supplement to the Registration Statement without providing the Agent and its counsel an opportunity to review and comment on such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably object. The Company will furnish promptly to the Agent and its counsel copies of all correspondence from the Commission with respect to the Registration Statement and the Company’s responses thereto.
(b) Neither The Company represents and agrees that, unless it obtains the Bank nor prior consent of Agent, and Agent represents and agrees that, unless it obtains the prior consent of the Company, it has not made and will not make any offer relating to the offered Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433, or that would constitute a “free writing prospectus,” as defined in Rule 405, required to be filed with the Commission. Any such free writing prospectus consented to by the Company willand Agent is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, at including timely Commission filing where required, legending and record keeping. The Company need not treat any time after communication as a free writing prospectus if it is exempt from the Conversion Application and Holding Company Application are approved by definition of prospectus pursuant to Clause (a) of Section 2(a)(10) of the Agencies, file any amendment Securities Act without regard to Rule 172 or supplement to such Applications without providing the Agent and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably object173.
(c) The Company Company, subject to Section 7(a), will comply with the requirements of Rule 430A of the Securities Act Regulations and will notify the Bank will use their best efforts to cause Agent immediately, and confirm the notice in writing, (i) when any post-effective amendment to the Registration Statement to be declared effective by the Commission and shall become effective, or any post-approval amendment supplement to the Conversion Application and Holding Company Application to be approved by the Agencies and will immediately upon receipt of Prospectus or any information concerning the events listed below notify the Agent: (i) when the Registration Statementamended Prospectus shall have been filed, as amended, has become effective; (ii) when of the Conversion Application and Holding Company Application, as amended have been approved by the Agencies; (iii) receipt of any comments from the Commission, the Agencies or any other governmental entity with respect to the Offering or the transactions contemplated by this Agreement; (iviii) of the any request by the Commission, Commission for any amendment to the Agencies Registration Statement or any other governmental entity for any amendment or supplement to the Registration Statement, the Conversion Application and the Holding Company Application Prospectus or for additional information; , and (viv) of the issuance by the Commission, the Agencies or any other governmental entity of any order or other action suspending the Offering or the use of the Registration Statement or the Prospectus or any other filing of the Company or the Bank under the Conversion Regulations, BHC Act or other applicable law, or the threat of any such action; (vi) the issuance by the Commission, the Agencies or any authority Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threat of initiation or threat threatening of any proceedings for that purpose; any of such purposes or (viiof any examination pursuant to Section 8(e) of the occurrence Securities Act concerning the Registration Statement and (v) if the Company becomes the subject of any event mentioned a proceeding under Section 8A of the Securities Act in paragraph (g) belowconnection with the offering of the Securities. The Company will promptly effect the filings necessary pursuant to Rule 424(b) in the manner and within the Bank time period required by Rule 424(b) (without reliance on Rule 424(b)(8)) and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort (i) to prevent the issuance by the Commission, the Agencies or any state authority of any such stop order and, if any such stop order shall at any time be issued and (ii) is issued, to obtain the lifting thereof at the earliest possible timemoment.)
(d) The Company and the Bank will deliver to the Agent and to its counsel two conformed copies of Agent, as soon as the Registration Statement, the Conversion Application Statement becomes effective and the Holding Company Application, as originally filed, and of each amendment or supplement thereto, including all exhibits. Further, the Company and the Bank will deliver such additional copies of the foregoing documents to counsel to the Agent as may be required for any NASD and "blue sky" filings.
(e) The Company and the Bank will furnish to the Agent, from time to time during the period thereafter when the Prospectus (or any later prospectus related to this offering) is required to be delivered under the 1933 Securities Act, as many copies of the Prospectus and as many conformed copies of the Registration Statement originally filed and of each amendment to the Registration Statement (including exhibits filed with the Registration Statement or incorporated by reference in the Registration Statement) as the Agent may reasonably request. The copies of the Registration Statement and each amendment thereto furnished to the Agent will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(e) The Company has delivered to the Agent, without charge, as many copies of each preliminary prospectus as the Agent reasonably requested, and the Company hereby consents to the use of such copies for purposes permitted by the Securities Act. The Company will furnish to the Agent, without charge, during the period when the Prospectus is required to be delivered under the Securities Act or the Securities Exchange Act of 1934 (the "1934 Act"), such number of copies of such the Prospectus (as amended or supplemented) as the Agent may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the rules and regulations promulgated under the 1934 Act (the "1934 Act Regulations")request. The Company authorizes Prospectus and any amendments or supplements thereto furnished to the Agent will be identical to use the Prospectus (as amended or supplemented, if amended or supplemented) in any lawful manner contemplated by the Plan in connection electronically transmitted copies thereof filed with the sale of Commission pursuant to XXXXX, except to the Shares extent permitted by the Agent.Regulation S-T.
(f) The Company and the Bank will comply with any and all material terms, conditions, requirements and provisions with respect to the Offering, and the transactions contemplated thereby, imposed any agreement entered into by the Commission, the Agencies or the Conversion Regulations or the BHC Act, and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations to be complied with prior to or subsequent to the Closing Date and when the Prospectus is required to be delivered, and during such time period the Company and each of the Bank will comply, at their own expense, with all material requirements imposed upon them by the Commission, the Agencies or the Conversion Regulations, the BHC Act and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, including, without limitation, Rule 10b-5 under the 1934 Act, in each case as from time to time in force, so far as necessary to permit the continuance of sales or dealing in the Common Stock during such period in accordance with the provisions hereof and the ProspectusStandby Purchasers.
(g) If, The Company will comply with the Securities Act and the Securities Act Regulations and the Exchange Act and the Exchange Act Regulations so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If at any time during the period when the Prospectus relating to the Shares a prospectus is required by the Securities Act to be delivereddelivered in connection with sales of the Securities, any event relating to shall occur or affecting the Company or the Bank condition shall occur, exist as a result of which it is necessary or appropriatenecessary, in the opinion of counsel for the Company and Agent or for the Bank or in the reasonable opinion of the Agent's counselCompany, to amend the Registration Statement or amend or supplement the Registration Statement or Prospectus in order to make the Registration Statement or Prospectus not misleading in light of the circumstances existing at the time that the Prospectus is delivered to a purchaser, the Company and the Bank will immediately so inform the Agent and prepare and file, at their own expense, with the Commission and the Agencies and furnish to the Agent a reasonable number of copies of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or Prospectus (in form and substance reasonably satisfactory to the Agent and its counsel after a reasonable time for review) which will amend or supplement the Registration Statement or Prospectus so that as amended or supplemented it will not contain an include any untrue statement statements of a material fact or omit to state a material fact necessary in order to make the statements therein, therein not misleading in the light of the circumstances existing at the time the Prospectus it is delivered to a purchaser, not misleading. For or if it shall be necessary, in the purpose opinion of this Agreementsuch counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the Securities Act or the Securities Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 9(a), such amendment or supplement as may be necessary to correct such statement or omission or to make the Registration Statement or the Prospectus comply with such requirements, and the Bank each Company will timely furnish to the Agent such information with respect to itself number of copies of such amendment or supplement as the Agent may from time to time reasonably request.
(h) The Company and the Bank will take all necessary actionsuse its best efforts, in cooperating cooperation with the Agent, and furnish to whomever the Agent may direct, such information as may be required to qualify or register the Shares Securities for offering and sale by the Company or to exempt such Shares from registration, or to exempt the Company as a broker-dealer and its officers, directors and employees as broker-dealers or agents under the applicable securities or blue sky laws of such states and other jurisdictions in which the Shares are required under the Conversion Regulations to be sold (domestic or foreign) as the Agent may designate and to maintain such qualifications in effect for a period of not less than one year from the Company and effective date of the Bank may reasonably agree uponRegistration Statement; provided, however, that the Company shall not be obligated to file any general consent to service of process, process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to do subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so qualified, or to register its directors or officers as brokers, dealers, salesmen or agents in any jurisdictionsubject. In each jurisdiction where any of in which the Shares shall Securities have been qualified or registered as above providedso qualified, the Company will make and file such statements and reports in each fiscal period as are or may be required by the laws of such jurisdictionjurisdiction to continue such qualification in effect for a period of not less than one year from the effective date of the Registration Statement. The Company will also supply the Agent with such information as is necessary for the determination of the legality of the Securities for investment under the laws of such jurisdiction as the Agent may request.
(i) The Bank shall duly establish and maintain Company will refrain during a period of 180 days after the liquidation account date of the Prospectus, without the prior written consent of the Agent, from (i) offering, pledging, selling, contracting to sell, or selling any option, warrant, or contract to purchase, purchasing any option, warrant, or contract to sell, granting any option for the benefit sale of, or otherwise disposing of Eligible Account Holders and Supplemental Eligible Account Holders in accordance or transferring, directly or indirectly, any Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or filing any registration statement under the Securities Act with the requirements respect to any of the Conversion Regulationsforegoing or (ii) entering into any swap or any other agreement or transaction that transfers, and such Eligible Account Holders and Supplemental Eligible Account Holders who continue to maintain their savings accounts in whole or in part, directly or indirectly, the Bank will have an inchoate interest in their pro rata portion economic consequence of ownership of the liquidation accountCommon Stock or any security convertible into or exchangeable for Common Stock, which whether any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The Company shall have a priority superior to that also cause each Standby Purchaser, executive officer and director and five percent (5.0%) or greater shareholder and certain other shareholders of the holders of Company to furnish to the Shares Agent, on or prior to the date hereof, a letter or letters, in form and substance satisfactory to counsel for the event of a complete liquidation of Agent, pursuant to which each such person or entity shall agree to abide by the Bank.
(j) The Company and aforementioned restrictions, unless they have received prior written consent from the Bank will not sell or issue, contract to sell or otherwise dispose ofAgent, for a period of 180 days after from the Closing Date, without date of the Agent's prior written consent, Prospectus. The foregoing sentence shall not apply to (y) any shares of Common Stock other than issued by the Shares Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus; or other than (z) any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock issued in connection with a merger, acquisition of another entity, acquisition of assets or any plan or arrangement described in the Prospectus, including existing stock benefit plansother similar transaction.
(kj) The Company shall register its Common Stock under Section 12(g) of the 1934 Act on or prior to the Closing Date pursuant to the Plan and shall request that such registration be effective prior to or upon completion of the Offering. The Company shall maintain the effectiveness of such registration for not less than three years or such shorter period as may be required by the Agencies.
(l) During the period during which the Company's Common Stock is registered under the 1934 Act or for three years from the date hereof, whichever period is greater, the Company will furnish to its shareholders as soon as practicable after the end of each fiscal year an annual report of the Company (including a consolidated balance sheet and statements of consolidated income, shareholders' equity and cash flows of the Company and its subsidiaries as at the end of and for such year, certified by independent public accountants in accordance with Regulation S-X under the 1933 Act and the 1934 Act).
(m) During For the period of three years from the date hereofof this Agreement, the Company will furnish to the Agent: Agent upon request (i) as soon as practicable after such information is publicly available, a copy of each report of the Company furnished to or filed with the Commission under the 1934 Exchange Act or any national securities exchange or system on which any class of securities of the Company is listed or quoted (including, but not limited to, reports on Forms 10-KSB, 10-QSB and 8-K and all proxy statements and annual reports to stockholders), (ii) a copy of each other non-confidential report of the Company mailed to its stockholders or filed with the Commission, the Agencies or any other supervisory or regulatory authority or any national securities exchange or system on which any class of securities of the Company is listed or quoted, (ii) a copy of each report of the Company mailed to holders of Common Stock or non-confidential report filed with the Commission, the FDIC, the Florida Division of Financial Institutions, the OTS, the FRB or any other supervisory or regulatory authority or any national securities exchange or system on which any class of the securities of the Company is listed or quoted, (iii) each press release and material news items item and additional documents and information with respect to article released by the Company or the Bank as the Agent may reasonably request; and/or Bank, and (iiiiv) from time to time-to-time, such other nonconfidential publicly available information concerning the Company or the Bank as the Agent may reasonably request.
(nk) The Company and the Bank will use the net proceeds from the sale of the Shares Common Stock in the manner set forth in the Prospectus under the caption "How We Intend to “Use the of Proceeds."”
(ol) Other than as permitted by The Company will distribute the Conversion Regulations, Prospectus or other offering materials in connection with the BHC Act, offering and sale of the 1933 Act, Common Stock only in accordance with the 1933 Securities Act Regulationsand the Exchange Act and the rules and regulations promulgated under such statutes, and the laws of any state in which the Shares shares are registered or qualified for sale or exempt from registrationsale.
(m) During the time when a prospectus is required to be delivered under the Securities Act, neither the Company nor shall at all times comply, in all material respects, with all applicable provisions of the Bank Xxxxxxxx-Xxxxx Act, including the related rules and regulations promulgated thereunder by the Commission and the American Stock Exchange, in effect from time to time.
(n) The Company will distribute any prospectus, offering circular or other offering material timely file an “Additional Listing Application” with the American Stock Exchange in connection with the offer and sale of the Shares.
(p) Securities. The Company will use its best efforts to (i) encourage and assist a market maker to establish obtain, effect and maintain a market for the Shares and (ii) list and maintain quotation listing of the Shares Securities on the OTC Bulletin Board effective American Stock Exchange and will file with the American Stock Exchange all documents and notices required by the American Stock Exchange of companies that have securities that are listed on or prior the American Stock Exchange.
(o) For so long as the Common Stock is registered under the Exchange Act, the Company will furnish to its stockholders after the Closing Dateend of each fiscal year, in the time periods prescribed by applicable law and regulations, such reports and other information as are required to be furnished to its stockholders under the Exchange Act (including consolidated financial statements of the Company and its subsidiaries, certified by independent public accountants).
(p) The Company and the Bank will conduct their businesses in compliance in all material respects with all applicable federal and state laws, rules, regulations, decisions, directives and orders including, all decisions, directives and orders of the Commission, the FDIC, the Department of Banking, the OTS and the FRB.
(q) The Company and the Bank shall comply with any and all terms, conditions, requirements and provisions imposed by the FDIC, the OTS, the FRB, the HOLA, the Commission, the Securities Act, the Securities Act Regulations, the Exchange Act and the Exchange Act Regulations. The Company will maintain appropriate arrangements for depositing comply with all funds received from persons mailing subscriptions for or orders to purchase Shares provisions of all undertakings contained in the Offering on an interest-bearing basis at the rate described in the Prospectus until the Closing Date and satisfaction of all conditions precedent to the release of the Bank's obligation to refund payments received from persons subscribing for or ordering Shares in the Offering in accordance with the Plan and as described in the Prospectus or until refunds of such funds have been made to the persons entitled thereto or withdrawal authorizations canceled in accordance with the Plan and as described in the Prospectus. The Bank will maintain such records of all funds received to permit the funds of each subscriber to be separately insured by the FDIC (to the maximum extent allowable) and to enable the Bank to make the appropriate refunds of such funds in the event that such refunds are required to be made in accordance with the Plan and as described in the ProspectusRegistration Statement.
(r) The Company agrees to furnish, or cause to be furnished, to the Agent, lists, or copies of those lists, showing the names and addresses of, and number of shares of Common Stock held, Record Date Shareholders as of the Bank will take Record Date, and to the extent available to the Company, similar information regarding any beneficial owners of the Company’s Common Stock for whom such actions and furnish such information Record Date Shareholders act as are reasonably requested by the Agent in order for the Agent to ensure compliance with the NASD's "Interpretation Relating to Free Riding and Withholdingnominees."
(s) Neither The Company will, and will arrange for the Subscription Agent to, inform the Agent, on each Business Day during the Subscription Period (to be followed by written confirmation), as to the name, phone number, shareholder status and amount of Common Stock held by any individual who calls the Company nor or the Bank will amend Subscription Agent, and the Plan without notifying number of Rights that have been exercised since its previous daily report to the Agent prior theretounder the provision of this Section 7( ) including the name of Right Holder and the amount of Common Stock subscribed for, and, not later than 10:00 a.m., Eastern Time, on the first Business Day after the Expiration Date, to provide the Agent with a written statement as to the total number of Rights exercised (separately setting forth the number of Rights exercised by Record Date Shareholders).
(t) The Company shall assist provide the Agent, if necessary, Agent with any other information necessary to allow the Agent to manage the allocation process in connection with order to permit the Company to carry out the allocation of the Shares Common Stock in the event of an oversubscription over-subscription, and shall provide the Agent with any information necessary to assist the Company in allocating the Shares in such event and all such information shall be accurate and reliable in all material respects.
(u) Prior to The Company will not deliver the Closing Date, Common Stock until the Company and the Bank will inform the Agent of any event has satisfied or circumstances of which it is aware as a result of which the Registration Statement and/or Prospectus, as then amended or supplemented, would contain an untrue statement of a material fact or omit caused to state a material fact necessary in order to make the statements therein not misleading.
(v) Subsequent to the date the Registration Statement is declared effective by the Commission and prior to the Closing Date, except as otherwise may be indicated or contemplated therein or satisfied each condition set forth in an amendment or supplement theretoSection 9 hereof, neither the Company nor the Bank will have: (i) issued any securities or incurred any liability or obligation, direct or contingent, for borrowed money, except borrowings from the same or similar sources indicated unless such condition is waived in the Prospectus in the ordinary course of its business, or (ii) entered into any transaction which is material in light of the business and properties of the Company and the Bank, taken as a whole.
(w) The Company will promptly take all necessary action to register as a bank holding company under the BHC Act.
(x) The facts and representations provided to Jenkens & Xxxxxxxxx writing by the Bank and the Company and upon which Xxxxxxx & Xxxxxxxxx will base its opinion under Section 8(c)(1) are and will be truthful, accurate and completeAgent.
Appears in 1 contract
Covenants of the Company and the Bank. The Company and the ------------------------------------- Bank hereby jointly and severally covenant with the Agent Xxxx, Xxxx as follows:
(a) The None of the Company, the Bank and the Mutual Company will not, at any time after the date the Registration Statement is declared effective, file any amendment or supplement to the Registration Statement or any Reorganization Application without notifying Xxxx, Xxxx of its intention to do so and providing the Agent Xxxx, Xxxx and its counsel an opportunity to review such amendment or supplement or supplement, nor will any of the Company, the Bank and the Mutual Company file any such amendment or supplement to which amendment or supplement the Agent Xxxx, Xxxx or its counsel shall reasonably object.
(b) Neither the Bank nor the Company will, at any time after the Conversion Application and Holding Company Application are approved by the Agencies, file any amendment or supplement to such Applications without providing the Agent and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably object.
(c) The Company and the Bank will use their best efforts to cause any post-effective amendment to the Registration Statement to be declared effective by the Commission and any post-approval amendment to the Conversion each Reorganization Application and Holding Company Application not heretofore approved to be approved by the Agencies applicable regulatory authority and will immediately upon receipt of any information concerning the events listed below notify the AgentXxxx, Xxxx: (i) when of the Registration Statement, as amended, has become effectiveapproval of any Reorganization Application not heretofore approved; (ii) when of the Conversion Application and Holding Company Application, as amended have been approved by the Agencies; (iii) receipt of any comments from the Commission, the Agencies Division, the Bank Board, the FDIC, the FRB or any other governmental entity with respect to the Offering Reorganization or the transactions contemplated by this Agreement; (iviii) of the request by the Commission, the Agencies Division, the Bank Board, the FDIC, the FRB or any other governmental entity for any amendment or supplement to the Registration Statement, the Conversion Application and the Holding Company Prospectus or any Reorganization Application or for additional information; (viv) of the issuance by the Commission, the Agencies Division, the Bank Board, the FDIC, the FRB or any other governmental entity of any order or other action suspending the Offering Reorganization or the use of the Registration Statement or the Prospectus or any other filing of the Company or and the Bank under the Conversion Reorganization Regulations, BHC the 1933 Act, 1933 Act Regulations or other applicable law, or the threat of any such action; (viv) of the issuance by the Commission, the Agencies Division, the Bank Board, the FDIC, the FRB or any other state governmental authority of any stop order suspending the effectiveness of the Registration Statement or any Reorganization Application or of the initiation or threat of initiation or threat of any proceedings for that such purpose; or (viivi) of the occurrence of any event mentioned in paragraph (gf) below. The Company and the Bank will make every reasonable effort (i) to prevent the issuance by the Commission, the Agencies Division, the Bank Board, the FDIC, the FRB or any state other governmental authority of any such order and, if any such order shall at any time be issued and (ii) issued, to obtain the lifting thereof at the earliest possible time. The Company and the Bank will provide copies of the foregoing comments, requests and orders to Xxxx, Xxxx upon receipt of such items.
(dc) The Company and the Bank will deliver to the Agent Xxxx, Xxxx and to its counsel two conformed copies of each of the Registration Statementfollowing documents, the Conversion with all exhibits: each Reorganization Application and the Holding Company Application, as originally filed, filed and of each amendment or supplement thereto and the Registration Statement as originally filed and each amendment thereto, including all exhibits. FurtherIn addition, the Company and the Bank will also deliver to Xxxx, Xxxx such additional number of copies of the foregoing closing documents to counsel with respect to the Agent Reorganization and the Offering as Xxxx, Xxxx may be required for any NASD and "blue sky" filingsreasonably request.
(ed) The Company and the Bank will furnish to the AgentRyan, Beck, from time to time during the period when the Prospectus (or any later prospectus related to this offering) is required to be delivered under federal or state securities laws or regulations or the applicable rules and regulations of any other governmental entity, such number of copies of the Prospectus (as amended or supplemented) as Xxxx, Xxxx may reasonably request for the purposes contemplated by such federal or state securities laws or regulations or the applicable rules and regulations of any other governmental entity. The Company authorizes Xxxx, Xxxx to use the Prospectus (as amended or supplemented) for any lawful manner in connection with the sale of the Shares.
(e) The Company, the Bank and the Mutual Company will comply with any and all terms, conditions, requirements and provisions with respect to the Reorganization and the transactions contemplated thereby imposed by the Commission, the Division, the Bank Board, the FDIC, the FRB, any state regulatory or Blue Sky authority or any other governmental entity, including the terms, conditions, requirements and provisions contained in the Registration Regulations, the 1933 Act, the 1933 Act or Regulations, the Securities Exchange Act of 1934 (the "1934 Act"), such number of copies of such Prospectus (as amended or supplemented) as the Agent may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or and the rules and regulations of the Commission promulgated under the 1934 Act (the "1934 Act Regulations"). The Company authorizes the Agent to use the Prospectus (as amended or supplemented, if amended or supplemented) in any lawful manner contemplated by the Plan in connection with the sale of the Shares by the Agent.
(f) The Company and the Bank will comply with any and all material terms, conditions, requirements and provisions with respect to the Offering, and the transactions contemplated thereby, imposed by the Commission, the Agencies or the Conversion Regulations or the BHC Act, and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations to be complied with prior to or subsequent to the Closing Date and when the Prospectus is required to be delivered, and during such time period the Company and the Bank will comply, at their own expense, with all material requirements imposed upon them by the Commission, the Agencies or the Conversion Regulations, the BHC Act and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, including, without limitation, Rule 10b-5 under the 1934 Act, in each case as from time to time in force, so far as necessary to permit the continuance of sales or dealing in the Common Stock during such period in accordance with the provisions hereof and the Prospectus.
(g) If, at any time during the period when the Prospectus relating to the Shares is required to be delivered, any event relating to or affecting the Company or the Bank shall occur, as a result of which it is necessary or appropriate, in the opinion of counsel for the Company and the Bank or in the reasonable opinion of the Agent's counselBank, to amend or supplement the Registration Statement or the Prospectus in order to make the Registration Statement or Prospectus not misleading in light of the circumstances existing at the time the Prospectus it is delivered to a purchaser, the Company and the Bank will immediately so inform the Agent and prepare and filewill, at their own expense, forthwith prepare, file with the Commission and the Agencies and furnish to the Agent Xxxx, Xxxx a reasonable number of copies of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or Prospectus (in form and substance reasonably satisfactory to the Agent Xxxx, Xxxx and its counsel after a reasonable time for review) which will amend or supplement the Registration Statement or Prospectus so that as amended or supplemented it will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading. For the purpose of this Agreement, the Company and the Bank each will timely furnish to the Agent such information with respect to itself as the Agent may from time to time reasonably request.
(hg) The Company and the Bank will take all necessary actions, in cooperating cooperation with the AgentRyan, Beck, and furnish to whomever the Agent Xxxx, Xxxx may direct, direct such information as may be required to qualify or register the Shares for offering the Offering and sale by the Company or to exempt such Shares from registration, or to exempt the Company as a broker-dealer and its officers, directors and employees as broker-dealers or agents under the applicable securities or blue sky Blue Sky laws of such jurisdictions in which the Shares are required under the Conversion Regulations to be sold or as the Agent and the Company and the Bank Xxxx, Xxxx may reasonably agree upondesignate; provided, however, that the Company shall not be obligated to file any general consent to service of process, process or to qualify to do business in any jurisdiction in which it is not otherwise required to be so qualified, or to register its directors or officers as brokers, dealers, salesmen or agents in any jurisdiction. In each jurisdiction where any of the Shares shall have been so qualified or registered as above providedregistered, the Company will make and file such statements and reports in each fiscal period as are or may be required by the laws of such jurisdiction.
(i) The Bank shall duly establish and maintain the liquidation account for the benefit of Eligible Account Holders and Supplemental Eligible Account Holders in accordance with the requirements of the Conversion Regulations, and such Eligible Account Holders and Supplemental Eligible Account Holders who continue to maintain their savings accounts in the Bank will have an inchoate interest in their pro rata portion of the liquidation account, which shall have a priority superior to that of the holders of the Shares in the event of a complete liquidation of the Bank.
(jh) The Company and the Bank will not sell or issue, contract to sell or otherwise dispose of, for a period of 180 90 days after the Closing Date, without the Agent's prior written consentconsent of Ryan, Beck, any shares of, or any securities convertible into or exercisable for shares of, Common Stock other than the Shares or other than in connection with any plan or arrangement described in the Prospectus, including existing stock benefit plans.
(k) The Company shall register its Common Stock under Section 12(g) of the 1934 Act on or prior to the Closing Date pursuant to the Plan and shall request that such registration be effective prior to or upon completion of the Offering. The Company shall maintain the effectiveness of such registration for not less than three years or such shorter period as may be required by the Agencies.
(li) During the period during in which the Company's Common Stock is registered under the 1934 Act or for three years from the date hereof, whichever period is greaterAct, the Company will furnish to its shareholders stockholders as soon as practicable after the end of each fiscal year an annual report of the Company (including a consolidated balance sheet and statements of consolidated income, shareholdersstockholders' equity and cash flows flow of the Company and its subsidiaries the Bank as at the end of and for such year, certified by independent public accountants in accordance with Regulation S-X under the 1933 Act 0000 Xxx) and make available as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with the first fiscal quarter ending after the Closing Date) financial information of the Company and the 1934 Act)Bank for such quarter in reasonable detail. In addition, the Company's annual results and quarterly results shall be made public through the issuance of appropriate press releases.
(mj) During the period of three five years from the date hereof, the Company will furnish to the AgentXxxx, Xxxx: (i) as soon as practicable after such information is publicly available, a copy of each report of the Company furnished generally to stockholders of the Company or furnished to or filed with the Commission under the 1934 Act or any national securities exchange or system on which any class of securities of the Company is listed or quoted (including, but not limited to, reports on of Forms 10-KSBK, 10-QSB Q and 8-K and all proxy statements and annual reports to stockholders), (ii) a copy of each other non-confidential report of the Company mailed to its stockholders or filed with the Commission, the Agencies Commission or any other supervisory or regulatory authority or any national securities exchange or system on which any class of securities of the Company is listed or quoted, quoted and each press release and material news items item and additional documents and information with respect to article released by the Company or the Bank as the Agent may reasonably request; Bank, and (iiiii) from time to time, such other nonconfidential public information concerning the Company or and the Bank as the Agent Xxxx, Xxxx may reasonably request.
(nk) The Company and the Bank will use the net proceeds from the sale of the Shares substantially in the manner set forth in the Prospectus under the caption "How We Intend to Use the of Proceeds."
(ol) Other than as permitted by the Conversion Reorganization Regulations, the BHC Actlaws of the Commonwealth of Massachusetts, the 1933 Act, the 1933 Act Regulations, Regulations and the laws of any state jurisdiction in which the Shares are registered or qualified for sale or exempt from registrationsale, neither the Company nor the Bank will distribute any prospectus, offering circular Prospectus or other offering material Sales Information in connection with the offer and sale of the Shares.
(pm) The Company will use make generally available to its best efforts to (i) encourage and assist a market maker to establish and maintain a market for security holders as soon as practicable, but not later than 60 days after the Shares and (ii) list and maintain quotation close of the Shares period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering a twelve-month period beginning not later than the first day of the Company's fiscal quarter next following the effective date (as defined in such Rule 158) of the Registration Statement.
(n) The Company will file with the Commission such reports on Form SR as may be required pursuant to Rule 463 of the OTC Bulletin Board 1933 Act Regulations and the Company, the Bank and the Mutual Company will file with the applicable regulatory authorities such post-Reorganization reports as may be required pursuant to the Reorganization Regulations or such authorities' approval of the Reorganization Applications.
(o) The Company will register the Common Stock under Section 12(g) of the 1934 Act effective on or prior to the Closing Date.
(p) The Company will use its best efforts to obtain approval for, effective on or prior to the Closing Date, and maintain quotation of the Common Stock on the Nasdaq National Market System.
(q) The Bank Company will maintain appropriate arrangements for depositing all funds received from persons mailing subscriptions for or delivering orders to purchase Shares in the Offering Subscription and Community Offerings on an interest-bearing basis at the rate described in the Prospectus until the Closing Date and satisfaction of all conditions precedent to the release of the Bank's obligation to refund payments received from persons subscribing for or ordering Shares in until the Offering in accordance with the Plan and as described in the Prospectus or until refunds of such funds have been made to the persons entitled thereto or withdrawal authorizations canceled is terminated in accordance with the Plan and as described in the Prospectus. The Bank Company will maintain such records of all funds received to permit the funds of each subscriber to be separately insured by the FDIC BIF and the DIF (to the maximum extent allowable) and to enable the Bank Company to make the appropriate refunds of such funds in the event that such refunds are required to be made in accordance with the Plan and as described in the Prospectus.
(r) The Company and the Bank will take such actions and furnish such information as are reasonably requested by the Agent Xxxx, Xxxx in order for the Agent Xxxx, Xxxx to ensure compliance with Article III, Section 1, of the NASD's Rules of Fair Practice and the NASD's "Interpretation Relating to Free Riding and Withholding."
(s) Neither the The Company nor and the Bank will amend conduct their respective businesses in compliance in all material respects with all applicable federal and state laws, rules, regulations, decisions, directives and orders including, all decisions, directives and orders of the Plan without notifying Division, the Agent prior theretoFDIC and the FRB.
(t) The Company shall assist Bank will not amend the AgentPlan without Xxxx, if necessaryXxxx'x prior written consent in any manner that, in connection with the allocation opinion of Ryan, Beck, would affect the sale of the Shares in or the event terms of an oversubscription and this Agreement, which approval shall provide the Agent with any information necessary to assist the Company in allocating the Shares in such event and such information shall not be accurate and reliable in all material respectsunreasonably withheld.
(u) Prior In each quarter in which the Company determines to pay a dividend on the Closing DateCommon Stock and the Mutual Company determines to waive the receipt of such dividend, the Mutual Company will notify the appropriate regulatory authorities of its intention to waive such receipt.
(v) The Company and the Bank will inform use all reasonable efforts to comply with, or cause to be complied with, the Agent of any event or circumstances of which it is aware as a result of which the Registration Statement and/or Prospectus, as then amended or supplemented, would contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading.
(v) Subsequent conditions precedent to the date the Registration Statement is declared effective by the Commission and prior to the Closing Dateseveral obligations of Xxxx, except as otherwise may be indicated or contemplated therein or set forth Xxxx specified in an amendment or supplement thereto, neither the Company nor the Bank will have: (i) issued any securities or incurred any liability or obligation, direct or contingent, for borrowed money, except borrowings from the same or similar sources indicated in the Prospectus in the ordinary course of its business, or (ii) entered into any transaction which is material in light of the business and properties of the Company and the Bank, taken as a wholeSection 9 hereof.
(w) The Company will promptly take all necessary action to register as a bank holding company under the BHC Act.
(x) The facts and representations provided to Jenkens & Xxxxxxxxx by the Bank and the Company and upon which Xxxxxxx & Xxxxxxxxx will base its opinion under Section 8(c)(1) are and will be truthful, accurate and complete.
Appears in 1 contract
Covenants of the Company and the Bank. The Company and the Bank hereby jointly and severally covenant with the Agent as follows:
(a) The Neither the Company will notnor the Bank will, at any time after the date the Registration Statement is declared effective, file any amendment or supplement to the Registration Statement without providing the Agent and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably object.
(b) Neither the Bank nor the The Company willwill not, at any time after the Conversion MHC-2 Application and Holding Company Application are is approved by the AgenciesOTS, file any amendment or supplement to such Applications MHC-2 Application without providing the Agent and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably object.
(c) The Company and the Bank will use their best efforts to cause any post-effective amendment to the Registration Statement to be declared effective by the Commission and any post-approval effective amendment to the Conversion Application and Holding Company MHC-2 Application to be approved by the Agencies OTS and will immediately upon receipt of any information concerning the events listed below notify the Agent: (i) when the Registration Statement, as amended, has become effective; (ii) when the Conversion Application and Holding Company MHC-2 Application, as amended have amended, has been approved by the AgenciesOTS; (iii) of any comments from the Commission, the Agencies OTS or any other governmental entity with respect to the Offering or the transactions contemplated by this Agreement; (iv) of the request by the Commission, the Agencies OTS or any other governmental entity for any amendment or supplement to the Registration Statement, the Conversion Application and the Holding Company MHC-2 Application or for additional information; (v) of the issuance by the Commission, the Agencies OTS or any other governmental entity of any order or other action suspending the Offering or the use of the Registration Statement or the Prospectus or any other filing of the Company or the Bank under the Conversion Reorganization Regulations, BHC Act or other applicable law, or the threat of any such action; (vi) of the issuance by the Commission, the Agencies OTS or any authority of any stop order suspending the effectiveness of the Registration Statement or of the initiation or threat of initiation or threat of any proceedings for that purpose; or (vii) of the occurrence of any event mentioned in paragraph (gh) below. The Company Company, the MHC and the Bank will make every reasonable effort (i) to prevent the issuance by the Commission, the Agencies OTS or any other state authority of any such order and, (ii) if any such order shall at any time be issued and (ii) issued, to obtain the lifting thereof at the earliest possible time.
(d) The Company and the Bank will deliver to the Agent and to its counsel two conformed copies of the Registration Statement, the Conversion Application Statement and the Holding Company MHC-2 Application, as originally filed, filed and of each amendment or supplement thereto, including all exhibits. Further, the Company and the Bank will deliver such additional copies of the foregoing documents to counsel to the Agent as may be required for any NASD and "blue sky" filings.
(e) The Company and the Bank will furnish to the Agent, from time to time during the period when the Prospectus (or any later prospectus related to this offering) is required to be delivered under the 1933 Act or the Securities Exchange Act of 1934 (the "“1934 Act"”), such number of copies of such Prospectus (as amended or supplemented) as the Agent may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the rules and regulations promulgated under the 1934 Act (the "“1934 Act Regulations"”). The Company authorizes the Agent to use the Prospectus (as amended or supplemented, if amended or supplemented) in any lawful manner contemplated by the Plan in connection with the sale of the Shares by the Agent.
(f) The Company Company, the MHC and the Bank will comply with any and all material terms, conditions, requirements and provisions with respect to the Offering, and the transactions contemplated thereby, Offering imposed by the Commission, the Agencies OTS or the Conversion Regulations or the BHC ActReorganization Regulations, and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations to be complied with prior to or subsequent to the Closing Date and when the Prospectus is required to be delivered, and during such time period the Company and the Bank will comply, at their own expense, with all material requirements imposed upon them by the Commission, the Agencies OTS or the Conversion Reorganization Regulations, the BHC Act and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, including, without limitation, Rule 10b-5 under the 1934 Act, in each case as from time to time in force, so far as necessary to permit the continuance of sales or dealing in the Common Stock Shares during such period in accordance with the provisions hereof and the Prospectus.
(g) If, at any time during the period when the Prospectus relating to the Shares is required to be delivered, any event relating to or affecting the Company or the Bank shall occur, as a result of which it is necessary or appropriate, in the opinion of counsel for the Company and the Bank or in the reasonable opinion of the Agent's counsel, to amend or supplement the Registration Statement or Prospectus in order to make the Registration Statement or Prospectus not misleading in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, the Company and the Bank will immediately so inform the Agent and prepare and file, at their own expense, with the Commission and the Agencies and furnish to the Agent a reasonable number of copies of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or Prospectus (in form and substance reasonably satisfactory to the Agent and its counsel after a reasonable time for review) which will amend or supplement the Registration Statement or Prospectus so that as amended or supplemented it will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading. For the purpose of this Agreement, the Company and the Bank each will timely furnish to the Agent such information with respect to itself as the Agent may from time to time reasonably request.
(h) The Company and the Bank will take all necessary actions, in cooperating with the Agent, and furnish to whomever the Agent may direct, such information as may be required to qualify or register the Shares for offering and sale by the Company or to exempt such Shares from registration, or to exempt the Company as a broker-dealer and its officers, directors and employees as broker-dealers or agents under the applicable securities or blue sky laws of such jurisdictions in which the Shares are required under the Conversion Regulations to be sold or as the Agent and the Company and the Bank may reasonably agree upon; provided, however, that the Company shall not be obligated to file any general consent to service of process, to qualify to do business in any jurisdiction in which it is not so qualified, or to register its directors or officers as brokers, dealers, salesmen or agents in any jurisdiction. In each jurisdiction where any of the Shares shall have been qualified or registered as above provided, the Company will make and file such statements and reports in each fiscal period as are or may be required by the laws of such jurisdiction.
(i) The Bank shall duly establish and maintain the liquidation account for the benefit of Eligible Account Holders and Supplemental Eligible Account Holders in accordance with the requirements of the Conversion Regulations, and such Eligible Account Holders and Supplemental Eligible Account Holders who continue to maintain their savings accounts in the Bank will have an inchoate interest in their pro rata portion of the liquidation account, which shall have a priority superior to that of the holders of the Shares in the event of a complete liquidation of the Bank.
(j) The Company and the Bank will not sell or issue, contract to sell or otherwise dispose of, for a period of 180 days after the Closing Date, without the Agent's prior written consent, any Common Stock other than the Shares or other than in connection with any plan or arrangement described in the Prospectus, including existing stock benefit plans.
(k) The Company shall register its Common Stock under Section 12(g) of the 1934 Act on or prior to the Closing Date pursuant to the Plan and shall request that such registration be effective prior to or upon completion of the Offering. The Company shall maintain the effectiveness of such registration for not less than three years or such shorter period as may be required by the Agencies.
(l) During the period during which the Company's Common Stock is registered under the 1934 Act or for three years from the date hereof, whichever period is greater, the Company will furnish to its shareholders as soon as practicable after the end of each fiscal year an annual report of the Company (including a consolidated balance sheet and statements of consolidated income, shareholders' equity and cash flows of the Company and its subsidiaries as at the end of and for such year, certified by independent public accountants in accordance with Regulation S-X under the 1933 Act and the 1934 Act).
(m) During the period of three years from the date hereof, the Company will furnish to the Agent: (i) as soon as practicable after such information is publicly available, a copy of each report of the Company furnished to or filed with the Commission under the 1934 Act or any national securities exchange or system on which any class of securities of the Company is listed or quoted (including, but not limited to, reports on Forms 10-KSB, 10-QSB and 8-K and all proxy statements and annual reports to stockholders), (ii) a copy of each other non-confidential report of the Company mailed to its stockholders or filed with the Commission, the Agencies or any other supervisory or regulatory authority or any national securities exchange or system on which any class of securities of the Company is listed or quoted, each press release and material news items and additional documents and information with respect to the Company or the Bank as the Agent may reasonably request; and (iii) from time to time, such other nonconfidential information concerning the Company or the Bank as the Agent may reasonably request.
(n) The Company and the Bank will use the net proceeds from the sale of the Shares in the manner set forth in the Prospectus under the caption "How We Intend to Use the Proceeds."
(o) Other than as permitted by the Conversion Regulations, the BHC Act, the 1933 Act, the 1933 Act Regulations, and the laws of any state in which the Shares are registered or qualified for sale or exempt from registration, neither the Company nor the Bank will distribute any prospectus, offering circular or other offering material in connection with the offer and sale of the Shares.
(p) The Company will use its best efforts to (i) encourage and assist a market maker to establish and maintain a market for the Shares and (ii) list and maintain quotation of the Shares on the OTC Bulletin Board effective on or prior to the Closing Date.
(q) The Bank will maintain appropriate arrangements for depositing all funds received from persons mailing subscriptions for or orders to purchase Shares in the Offering on an interest-bearing basis at the rate described in the Prospectus until the Closing Date and satisfaction of all conditions precedent to the release of the Bank's obligation to refund payments received from persons subscribing for or ordering Shares in the Offering in accordance with the Plan and as described in the Prospectus or until refunds of such funds have been made to the persons entitled thereto or withdrawal authorizations canceled in accordance with the Plan and as described in the Prospectus. The Bank will maintain such records of all funds received to permit the funds of each subscriber to be separately insured by the FDIC (to the maximum extent allowable) and to enable the Bank to make the appropriate refunds of such funds in the event that such refunds are required to be made in accordance with the Plan and as described in the Prospectus.
(r) The Company and the Bank will take such actions and furnish such information as are reasonably requested by the Agent in order for the Agent to ensure compliance with the NASD's "Interpretation Relating to Free Riding and Withholding."
(s) Neither the Company nor the Bank will amend the Plan without notifying the Agent prior thereto.
(t) The Company shall assist the Agent, if necessary, in connection with the allocation of the Shares in the event of an oversubscription and shall provide the Agent with any information necessary to assist the Company in allocating the Shares in such event and such information shall be accurate and reliable in all material respects.
(u) Prior to the Closing Date, the Company and the Bank will inform the Agent of any event or circumstances of which it is aware as a result of which the Registration Statement and/or Prospectus, as then amended or supplemented, would contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading.
(v) Subsequent to the date the Registration Statement is declared effective by the Commission and prior to the Closing Date, except as otherwise may be indicated or contemplated therein or set forth in an amendment or supplement thereto, neither the Company nor the Bank will have: (i) issued any securities or incurred any liability or obligation, direct or contingent, for borrowed money, except borrowings from the same or similar sources indicated in the Prospectus in the ordinary course of its business, or (ii) entered into any transaction which is material in light of the business and properties of the Company and the Bank, taken as a whole.
(w) The Company will promptly take all necessary action to register as a bank holding company under the BHC Act.
(x) The facts and representations provided to Jenkens & Xxxxxxxxx by the Bank and the Company and upon which Xxxxxxx & Xxxxxxxxx will base its opinion under Section 8(c)(1) are and will be truthful, accurate and complete.
Appears in 1 contract
Covenants of the Company and the Bank. The Company and the Bank hereby jointly and severally covenant with the Agent as follows:
(a) The Company will not, at any time after the date the Registration Statement is declared effective, file any amendment or supplement to the Registration Statement without providing the Agent and its counsel an opportunity to review and comment on such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably object. The Company will furnish promptly to the Agent and its counsel copies of all correspondence from the Commission with respect to the Registration Statement and the Company’s responses thereto.
(b) Neither The Company represents and agrees that, unless it obtains the Bank nor prior consent of Agent, and Agent represents and agrees that, unless it obtains the prior consent of the Company, it has not made and will not make any offer relating to the offered Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433, or that would constitute a “free writing prospectus,” as defined in Rule 405, required to be filed with the Commission. Any such free writing prospectus consented to by the Company willand Agent is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, at including timely Commission filing where required, legending and record keeping. The Company need not treat any time after communication as a free writing prospectus if it is exempt from the Conversion Application and Holding Company Application are approved by definition of prospectus pursuant to Clause (a) of Section 2(a)(10) of the Agencies, file any amendment Securities Act without regard to Rule 172 or supplement to such Applications without providing the Agent and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably object173.
(c) The Company Company, subject to Section 7(a), will comply with the requirements of Rule 430A of the Securities Act Regulations and will notify the Bank will use their best efforts to cause Agent immediately, and confirm the notice in writing, (i) when any post-effective amendment to the Registration Statement to be declared effective by the Commission and shall become effective, or any post-approval amendment supplement to the Conversion Application and Holding Company Application to be approved by the Agencies and will immediately upon receipt of Prospectus or any information concerning the events listed below notify the Agent: (i) when the Registration Statementamended Prospectus shall have been filed, as amended, has become effective; (ii) when of the Conversion Application and Holding Company Application, as amended have been approved by the Agencies; (iii) receipt of any comments from the Commission, the Agencies or any other governmental entity with respect to the Offering or the transactions contemplated by this Agreement; (iviii) of the any request by the Commission, Commission for any amendment to the Agencies Registration Statement or any other governmental entity for any amendment or supplement to the Registration Statement, the Conversion Application and the Holding Company Application Prospectus or for additional information; , and (viv) of the issuance by the Commission, the Agencies or any other governmental entity of any order or other action suspending the Offering or the use of the Registration Statement or the Prospectus or any other filing of the Company or the Bank under the Conversion Regulations, BHC Act or other applicable law, or the threat of any such action; (vi) the issuance by the Commission, the Agencies or any authority Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threat of initiation or threat threatening of any proceedings for that purpose; any of such purposes or (viiof any examination pursuant to Section 8(e) of the occurrence Securities Act concerning the Registration Statement and (v) if the Company becomes the subject of any event mentioned a proceeding under Section 8A of the Securities Act in paragraph (g) belowconnection with the offering of the Securities. The Company will promptly effect the filings necessary pursuant to Rule 424(b) in the manner and within the Bank time period required by Rule 424(b) (without reliance on Rule 424(b)(8)) and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort (i) to prevent the issuance by the Commission, the Agencies or any state authority of any such stop order and, if any such stop order shall at any time be issued and (ii) is issued, to obtain the lifting thereof at the earliest possible timemoment.
(d) The Company and the Bank will deliver to the Agent and to its counsel two conformed copies of Agent, as soon as the Registration Statement, the Conversion Application Statement becomes effective and the Holding Company Application, as originally filed, and of each amendment or supplement thereto, including all exhibits. Further, the Company and the Bank will deliver such additional copies of the foregoing documents to counsel to the Agent as may be required for any NASD and "blue sky" filings.
(e) The Company and the Bank will furnish to the Agent, from time to time during the period thereafter when the Prospectus (or any later prospectus related to this offering) is required to be delivered under the 1933 Securities Act, as many copies of the Prospectus and as many conformed copies of the Registration Statement originally filed and of each amendment to the Registration Statement (including exhibits filed with the Registration Statement or incorporated by reference in the Registration Statement) as the Agent may reasonably request. The copies of the Registration Statement and each amendment thereto furnished to the Agent will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(e) The Company has delivered to the Agent, without charge, as many copies of each preliminary prospectus as the Agent reasonably requested, and the Company hereby consents to the use of such copies for purposes permitted by the Securities Act. The Company will furnish to the Agent, without charge, during the period when the Prospectus is required to be delivered under the Securities Act or the Securities Exchange Act of 1934 (the "1934 Act"), such number of copies of such the Prospectus (as amended or supplemented) as the Agent may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the rules and regulations promulgated under the 1934 Act (the "1934 Act Regulations")request. The Company authorizes Prospectus and any amendments or supplements thereto furnished to the Agent will be identical to use the Prospectus (as amended or supplemented, if amended or supplemented) in any lawful manner contemplated by the Plan in connection electronically transmitted copies thereof filed with the sale of Commission pursuant to XXXXX, except to the Shares extent permitted by the Agent.Regulation S-T.
(f) The Company and the Bank will comply with any and all material terms, conditions, requirements and provisions with respect to the Offering, and the transactions contemplated thereby, imposed any agreement entered into by the Commission, the Agencies or the Conversion Regulations or the BHC Act, and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations to be complied with prior to or subsequent to the Closing Date and when the Prospectus is required to be delivered, and during such time period the Company and each of the Bank will comply, at their own expense, with all material requirements imposed upon them by the Commission, the Agencies or the Conversion Regulations, the BHC Act and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, including, without limitation, Rule 10b-5 under the 1934 Act, in each case as from time to time in force, so far as necessary to permit the continuance of sales or dealing in the Common Stock during such period in accordance with the provisions hereof and the ProspectusStandby Purchasers.
(g) If, The Company will comply with the Securities Act and the Securities Act Regulations so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If at any time during the period when the Prospectus relating to the Shares a prospectus is required by the Securities Act to be delivereddelivered in connection with sales of the Securities, any event relating to shall occur or affecting the Company or the Bank condition shall occur, exist as a result of which it is necessary or appropriatenecessary, in the opinion of counsel for the Company and Agent or for the Bank or in the reasonable opinion of the Agent's counselCompany, to amend the Registration Statement or amend or supplement the Registration Statement or Prospectus in order to make the Registration Statement or Prospectus not misleading in light of the circumstances existing at the time that the Prospectus is delivered to a purchaser, the Company and the Bank will immediately so inform the Agent and prepare and file, at their own expense, with the Commission and the Agencies and furnish to the Agent a reasonable number of copies of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or Prospectus (in form and substance reasonably satisfactory to the Agent and its counsel after a reasonable time for review) which will amend or supplement the Registration Statement or Prospectus so that as amended or supplemented it will not contain an include any untrue statement statements of a material fact or omit to state a material fact necessary in order to make the statements therein, therein not misleading in the light of the circumstances existing at the time the Prospectus it is delivered to a purchaser, not misleading. For or if it shall be necessary, in the purpose opinion of this Agreementsuch counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the Securities Act or the Securities Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 9(a), such amendment or supplement as may be necessary to correct such statement or omission or to make the Registration Statement or the Prospectus comply with such requirements, and the Bank each Company will timely furnish to the Agent such information with respect to itself number of copies of such amendment or supplement as the Agent may from time to time reasonably request.
(h) The Company and the Bank will take all necessary actionsuse its best efforts, in cooperating cooperation with the Agent, and furnish to whomever the Agent may direct, such information as may be required to qualify or register the Shares Securities for offering and sale by the Company or to exempt such Shares from registration, or to exempt the Company as a broker-dealer and its officers, directors and employees as broker-dealers or agents under the applicable securities or blue sky laws of such states and other jurisdictions in which the Shares are required under the Conversion Regulations to be sold (domestic or foreign) as the Agent may designate and to maintain such qualifications in effect for a period of not less than one year from the Company and effective date of the Bank may reasonably agree uponRegistration Statement; provided, however, that the Company shall not be obligated to file any general consent to service of process, process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to do subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so qualified, or to register its directors or officers as brokers, dealers, salesmen or agents in any jurisdictionsubject. In each jurisdiction where any of in which the Shares shall Securities have been qualified or registered as above providedso qualified, the Company will make and file such statements and reports in each fiscal period as are or may be required by the laws of such jurisdictionjurisdiction to continue such qualification in effect for a period of not less than one year from the effective date of the Registration Statement. The Company will also supply the Agent with such information as is necessary for the determination of the legality of the Securities for investment under the laws of such jurisdiction as the Agent may request.
(i) The Bank shall duly establish and maintain Company will refrain during a period of 180 days after the liquidation account date of the Prospectus, without the prior written consent of the Agent, from (i) offering, pledging, selling, contracting to sell, or selling any option, warrant, or contract to purchase, purchasing any option, warrant, or contract to sell, granting any option for the benefit sale of, or otherwise disposing of Eligible Account Holders and Supplemental Eligible Account Holders in accordance or transferring, directly or indirectly, any Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or filing any registration statement under the Securities Act with the requirements respect to any of the Conversion Regulationsforegoing or (ii) entering into any swap or any other agreement or transaction that transfers, and such Eligible Account Holders and Supplemental Eligible Account Holders who continue to maintain their savings accounts in whole or in part, directly or indirectly, the Bank will have an inchoate interest in their pro rata portion economic consequence of ownership of the liquidation accountCommon Stock or any security convertible into or exchangeable for Common Stock, which whether any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The Company shall have a priority superior to that also cause each Standby Purchaser, executive officer and director and five percent (5.0%) or greater shareholder and certain other shareholders of the holders of Company to furnish to the Shares Agent, on or prior to the date hereof, a letter or letters, in form and substance satisfactory to counsel for the event of a complete liquidation of Agent, pursuant to which each such person or entity shall agree to abide by the Bank.
(j) The Company and aforementioned restrictions, unless they have received prior written consent from the Bank will not sell or issue, contract to sell or otherwise dispose ofAgent, for a period of 180 days after from the Closing Date, without date of the Agent's prior written consent, Prospectus. The foregoing sentence shall not apply to (y) any shares of Common Stock other than issued by the Shares Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus; or other than (z) any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock issued in connection with a merger, acquisition of another entity, acquisition of assets or any plan or arrangement described in the Prospectus, including existing stock benefit plansother similar transaction.
(kj) The Company shall register its Common Stock under Section 12(g) of the 1934 Act on or prior to the Closing Date pursuant to the Plan and shall request that such registration be effective prior to or upon completion of the Offering. The Company shall maintain the effectiveness of such registration for not less than three years or such shorter period as may be required by the Agencies.
(l) During the period during which the Company's Common Stock is registered under the 1934 Act or for three years from the date hereof, whichever period is greater, the Company will furnish to its shareholders as soon as practicable after the end of each fiscal year an annual report of the Company (including a consolidated balance sheet and statements of consolidated income, shareholders' equity and cash flows of the Company and its subsidiaries as at the end of and for such year, certified by independent public accountants in accordance with Regulation S-X under the 1933 Act and the 1934 Act).
(m) During For the period of three years from the date hereofof this Agreement, the Company will furnish to the Agent: Agent upon request (i) as soon as practicable after such information is publicly available, a copy of each report of the Company furnished to or filed with the Commission under the 1934 Exchange Act or any national securities exchange or system on which any class of securities of the Company is listed or quoted (including, but not limited to, reports on Forms 10-KSB, 10-QSB and 8-K and all proxy statements and annual reports to stockholders), (ii) a copy of each other non-confidential report of the Company mailed to its stockholders or filed with the Commission, the Agencies or any other supervisory or regulatory authority or any national securities exchange or system on which any class of securities of the Company is listed or quoted, (ii) a copy of each report of the Company mailed to holders of Common Stock or non-confidential report filed with the Commission, the FDIC, the Florida Division of Financial Institutions, the OTS, the FRB or any other supervisory or regulatory authority or any national securities exchange or system on which any class of the securities of the Company is listed or quoted, (iii) each press release and material news items item and additional documents and information with respect to article released by the Company or the Bank as the Agent may reasonably request; and/or Bank, and (iiiiv) from time to time-to-time, such other nonconfidential publicly available information concerning the Company or the Bank as the Agent may reasonably request.
(nk) The Company and the Bank will use the net proceeds from the sale of the Shares Common Stock in the manner set forth in the Prospectus under the caption "How We Intend to “Use the of Proceeds."”
(ol) Other than as permitted by The Company will distribute the Conversion Regulations, Prospectus or other offering materials in connection with the BHC Act, offering and sale of the 1933 Act, Common Stock only in accordance with the 1933 Securities Act Regulationsand the rules and regulations promulgated under such statute, and the laws of any state in which the Shares shares are registered or qualified for sale or exempt from registrationsale.
(m) During the time when a prospectus is required to be delivered under the Securities Act, neither the Company nor shall at all times comply, in all material respects, with all applicable provisions of the Bank Xxxxxxxx-Xxxxx Act, including the related rules and regulations promulgated thereunder by the Commission and the American Stock Exchange, in effect from time to time.
(n) The Company will distribute any prospectus, offering circular or other offering material timely file an “Additional Listing Application” with the American Stock Exchange in connection with the offer and sale of the Shares.
(p) Securities. The Company will use its best efforts to (i) encourage and assist a market maker to establish obtain, effect and maintain a market for the Shares and (ii) list and maintain quotation listing of the Shares Securities on the OTC Bulletin Board effective American Stock Exchange and will file with the American Stock Exchange all documents and notices required by the American Stock Exchange of companies that have securities that are listed on or prior the American Stock Exchange.
(o) For so long as the Common Stock is registered under the Exchange Act, the Company will furnish to its stockholders after the Closing Dateend of each fiscal year, in the time periods prescribed by applicable law and regulations, such reports and other information as are required to be furnished to its stockholders under the Exchange Act (including consolidated financial statements of the Company and its subsidiaries, certified by independent public accountants).
(p) The Company and the Bank will conduct their businesses in compliance in all material respects with all applicable federal and state laws, rules, regulations, decisions, directives and orders including, all decisions, directives and orders of the Commission, the FDIC and the OTS.
(q) The Company and the Bank shall comply with any and all terms, conditions, requirements and provisions imposed by the FDIC, the OTS, the FRB, the HOLA, the Commission, the Securities Act, the Securities Act Regulations, the Exchange Act and the Exchange Act Regulations. The Company will maintain appropriate arrangements for depositing comply with all funds received from persons mailing subscriptions for or orders to purchase Shares provisions of all undertakings contained in the Offering on an interest-bearing basis at the rate described in the Prospectus until the Closing Date and satisfaction of all conditions precedent to the release of the Bank's obligation to refund payments received from persons subscribing for or ordering Shares in the Offering in accordance with the Plan and as described in the Prospectus or until refunds of such funds have been made to the persons entitled thereto or withdrawal authorizations canceled in accordance with the Plan and as described in the Prospectus. The Bank will maintain such records of all funds received to permit the funds of each subscriber to be separately insured by the FDIC (to the maximum extent allowable) and to enable the Bank to make the appropriate refunds of such funds in the event that such refunds are required to be made in accordance with the Plan and as described in the ProspectusRegistration Statement.
(r) The Company agrees to use its best efforts to furnish, or cause to be furnished, to the Agent, lists, or copies of those lists, showing the names and addresses of, and number of shares of Common Stock held by, Record Date Shareholders as of the Bank will take Record Date, and to the extent available to the Company, similar information regarding any beneficial owners of the Company’s Common Stock for whom such actions and furnish such information Record Date Shareholders act as are reasonably requested by the Agent in order for the Agent to ensure compliance with the NASD's "Interpretation Relating to Free Riding and Withholdingnominees."
(s) Neither The Company will arrange for the Subscription Agent to, inform the Agent, on each Business Day during the Subscription Period (to be followed by written confirmation), as to the name, phone number, shareholder status and amount of Common Stock held by any individual who calls the Company nor or the Bank will amend Subscription Agent, and the Plan without notifying number of Rights that have been exercised since its previous daily report to the Agent prior theretounder the provision of this Section 7(s) including the name of the Rights Holder and the amount of Common Stock subscribed for, and, not later than 10:00 a.m., Eastern Time, on the first Business Day after the Expiration Date, use its best efforts to provide the Agent with a written statement as to the total number of Rights exercised (separately setting forth the number of Rights exercised by Record Date Shareholders).
(t) The Company shall assist provide the Agent, if necessary, Agent with any other information necessary to allow the Agent to manage the allocation process in connection with order to permit the Company to carry out the allocation of the Shares Common Stock in the event of an oversubscription over-subscription, and shall provide the Agent with any information necessary to assist the Company in allocating the Shares in such event and all such information shall be accurate and reliable in all material respects.
(u) Prior to The Company will not deliver the Closing Date, Common Stock until the Company and has satisfied or caused to be satisfied each condition set forth in Section 9 hereof, unless such condition is waived in writing by the Bank will inform the Agent of any event or circumstances of which it is aware as a result of which the Registration Statement and/or Prospectus, as then amended or supplemented, would contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleadingAgent.
(v) Subsequent to the date the Registration Statement is declared effective by the Commission and prior to the Closing Date, except as otherwise may be indicated or contemplated therein or set forth in an amendment or supplement thereto, neither the Company nor the Bank will have: (i) issued any securities or incurred any liability or obligation, direct or contingent, for borrowed money, except borrowings from the same or similar sources indicated in the Prospectus in the ordinary course of its business, or (ii) entered into any transaction which is material in light Each of the business Company’s executive officers and properties of the Company directors and the BankStandby Purchasers, taken in each case as a wholelisted on Schedule B hereto, will execute and deliver lock-up agreements as contemplated by Section 9(p) hereof.
(w) The Company will promptly take all necessary action to register as a bank holding company under the BHC Act.
(x) The facts and representations provided to Jenkens & Xxxxxxxxx by the Bank and the Company and upon which Xxxxxxx & Xxxxxxxxx will base its opinion under Section 8(c)(1) are and will be truthful, accurate and complete.
Appears in 1 contract
Covenants of the Company and the Bank. The Company and the Bank hereby jointly and severally covenant with the Agent as follows:
(a) The Company will not, at any time after the date the Registration Statement is declared effective, not file any amendment or supplement to the Registration Statement without providing the Agent and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably object.
(b) Neither the Bank nor the The Company will, at any time after the Conversion Application and Holding Company Application are approved by the Agencies, will not file any amendment or supplement to such Applications the Holding Company Application without providing the Agent and its counsel an opportunity to review the nonconfidential portions of such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably object.
(c) The Company and the Bank will use their best efforts to cause any post-effective amendment to the Registration Statement to be declared effective by the Commission SEC and any post-approval amendment to the Conversion Application and Holding Company Application to be approved by the Agencies OTS and will immediately upon receipt of any information concerning the events listed below notify the Agent: (i) when the Registration Statement, as amended, has become effective; (ii) when the Conversion Application and Holding Company Application, as amended have amended, has been approved by the AgenciesOTS; (iii) when the Company or the Bank receives any comments from the CommissionOTS, the Agencies SEC, or any other governmental entity with respect to the Offering Conversion or the transactions contemplated by this Agreement; (iv) of when the request by the CommissionOTS, the Agencies SEC, or any other governmental entity for requests any amendment or supplement to the Registration Statement, the Conversion Application and the Holding Company Application or for any additional information; (v) of the issuance by the CommissionOTS, the Agencies SEC, or any other governmental entity of any order or other action suspending the Offering or the use of the Registration Statement or the Prospectus or any other filing of the Company or the Bank under the Conversion Regulations, BHC Act or other applicable law, or the threat of any such action; (vi) the issuance by the CommissionSEC, the Agencies or any authority of any stop order suspending the effectiveness of the Registration Statement or of the initiation or threat of initiation or threat of any proceedings for that purpose; or (vii) of the occurrence of any event mentioned in paragraph (gh) below. The Company and the Bank will make every reasonable effort (ix) to prevent the issuance by the CommissionOTS, the Agencies SEC or any state other regulatory authority of any such order and, if any such order shall at any time be issued and issued, (iiy) to obtain the lifting thereof at the earliest possible time.
(d) The Company and the Bank will deliver to the Agent and to its counsel two conformed copies of the Registration Statement, the Conversion Application and the Holding Company Application, as originally filed, filed and of each amendment or supplement thereto, including all exhibits. Further, the Company and the Bank will deliver such additional copies of the foregoing documents to counsel to the Agent as may be required for any NASD and "blue sky" filings.
(e) The Company and the Bank will furnish to the Agent, from time to time during the period when the Prospectus (or any later prospectus related to this offering) is required to be delivered under the 1933 Act or the Securities Exchange Act of 1934 (the "1934 Act"), such number of copies of such Prospectus (as amended or supplemented) as the Agent may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the Securities Exchange Act of 1934, as amended (the “1934 Act or Act”), and the rules and regulations promulgated of the SEC under the 1934 Act (the "“1934 Act Regulations"”). The Company authorizes the Agent to use the Prospectus (as amended or supplemented, if amended or supplemented) in any lawful manner contemplated by the Plan in connection with the sale of the Shares by the Agent.
(f) The Company and the Bank will comply in all material respects with any and all material terms, conditions, requirements and provisions with respect to the Offering, Conversion and the transactions contemplated thereby, thereby imposed by the CommissionOTS, the Agencies SEC or the Conversion Regulations or the BHC ActRegulations, and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations to be complied with prior to or subsequent to the Closing Date and when the Prospectus is required to be delivered, and during such time period period, the Company and the Bank will complycomply in all material respects, at their own expense, with all material requirements imposed upon them by the CommissionOTS, the Agencies SEC or the Conversion Regulations, the BHC Act and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, including, without limitation, Rule 10b-5 under the 1934 Act, in each case as from time to time in force, so far as necessary to permit the continuance of sales or dealing in the Common Stock during such period in accordance with the provisions hereof and the Prospectus.
(g) If, at any time during the period when the Prospectus relating to the Shares is required to be delivered, any event relating to or affecting the Company or Company, the Bank or Beacon Comprehensive shall occur, as a result of which it is necessary or appropriate, in the opinion of counsel for of the Company and the Bank or in the reasonable opinion of the Agent's ’s counsel, to amend or supplement the Registration Statement or Prospectus in order to make the Registration Statement or Prospectus not misleading in light of the circumstances existing at the time the Prospectus is delivered to a purchaserdelivered, the Company and Company, the Bank and Beacon Comprehensive will immediately so inform the Agent and prepare and file, at their own expense, prepare and file with the Commission and OTS, the Agencies SEC and furnish to the Agent a reasonable number of copies of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or Prospectus (in form and substance reasonably satisfactory to the Agent and its counsel after a reasonable time for review) which will amend or supplement the Registration Statement or Prospectus so that as amended or supplemented it will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading. For the purpose of this Agreement, the Company and the Bank each will timely furnish to the Agent such information with respect to itself as the Agent may from time to time reasonably request.
(h) The Company and the Bank will take all necessary actions, actions in cooperating with the Agent, Agent and furnish to whomever the Agent may direct, direct such information as may be required to qualify or register the Shares for offering and sale by the Company or to exempt such Shares from registration, or to exempt the Company as a broker-dealer and its officers, directors and employees as broker-dealers or agents under the applicable securities or blue sky laws of such jurisdictions in which the Shares are required under the Conversion Regulations to be sold or as the Agent and the Company and the Bank may reasonably agree upon; provided, however, that the Company shall not be obligated to file any general consent to service of process, to qualify to do business in any jurisdiction in which it is not so qualified, or to register its directors or officers as brokers, dealers, salesmen or agents in any jurisdiction. In each jurisdiction where any of the Shares shall have been qualified or registered as above provided, the Company will make and file such statements and reports in each fiscal period as are or may be required by the laws of such jurisdiction.
(i) The At the consummation of the Conversion, the Bank shall duly establish and maintain the liquidation account for the benefit of Eligible Account Holders and Supplemental Eligible Account Holders in accordance with the requirements of the Conversion Regulations, Regulations and such Eligible Account Holders and Supplemental Eligible Account Holders who continue to maintain their savings accounts in the Bank will have an inchoate interest in their pro rata portion of the liquidation account, which shall have a priority superior to that of the holders of the Shares Common Stock in the event of a complete liquidation of the Bank.
(j) The Company and the Bank will not sell or issue, contract to sell or otherwise dispose of, for a period of 180 90 days after the Closing Date, without the Agent's ’s prior written consent, any Common Stock other than the Shares or of their capital stock, other than in connection with any plan or arrangement described in the General Disclosure Package and the Prospectus, including existing stock benefit plans.
(k) The Company shall register its Common Stock under Section 12(g12(b) of the 1934 Act on or prior to during the Closing Date pursuant to the Plan Offering and shall request that such registration be effective prior to or upon completion of the OfferingConversion. The Company shall maintain the effectiveness of such registration for not less than three years or such shorter period as may be required by the Agenciesapplicable law.
(l) During the period during which the Company's Common Stock is are registered under the 1934 Act or for three (3) years from the date hereof, whichever period is greater, the Company will furnish to its shareholders as soon as practicable after the end of each fiscal year an annual report of the Company in accordance with the 1934 Act Regulations (including a consolidated balance sheet and statements of consolidated income, shareholders' ’ equity and cash flows of the Company and its subsidiaries as at the end of and for such year, certified by independent public accountants in accordance with Regulation S-X under the 1933 Act and the 1934 Act).
(m) During the period of three years from the date hereof, the Company will furnish to the Agent: (i) as soon as practicable after such information is publicly available, a copy of each report of the Company furnished to or filed with the Commission SEC under the 1934 Act or any national securities exchange or system on which any class of securities of the Company is listed or quoted (including, but not limited to, reports on Forms 10-K or 10-KSB, 10-Q or 10-QSB and 8-K and all proxy statements and annual reports to stockholders); provided, however that for purposes of this requirement, documents filed electronically on the SEC’s Electronic Data Gathering, Analysis and Retrieval (XXXXX) System shall be deemed to be delivered to the Agent upon filing with the SEC, (ii) a copy of each other non-confidential report of the Company mailed to its stockholders shareholders or filed with the CommissionOTS (excluding Current Reports on Form H-(b)11), the Agencies SEC or any other supervisory or regulatory authority or any national securities exchange or system on which any class of securities of the Company is listed or quoted, each press release and material news items and additional documents and information with respect to the Company or the Bank as the Agent may reasonably request; and (iii) from time to time, such other nonconfidential information concerning the Company or the Bank as the Agent may reasonably request.
(n) The Company and the Bank will use the net proceeds from the sale of the Shares in the manner set forth in the General Disclosure Package and the Prospectus under the caption "How We Intend to “Use the of Proceeds."”
(o) Other than as permitted by the Conversion Regulations, the BHC ActHOLA, the 1933 Act, the 1933 Act Regulations, Regulations and its rules and regulations and the laws of any state in which the Shares are registered or qualified for sale or exempt from registration, neither none of the Company nor or the Bank will distribute any prospectus, offering circular or other offering material in connection with the offer and sale of the Shares.
(p) The Company will use its best efforts to (i) encourage and assist a market maker cooperate with the Agent to establish and maintain a market for effect the Shares and (ii) list and maintain quotation trading of the Shares on the OTC Bulletin Board effective The Nasdaq Stock Market on or prior to the Closing Date.
(q) The Bank will maintain appropriate arrangements for depositing all funds received from persons mailing subscriptions for or orders to purchase Shares in the Offering on an interest-bearing basis at the rate described in the General Disclosure Package and the Prospectus until the Closing Date and satisfaction of all conditions precedent to the release of the Company’s or Bank's ’s obligation to refund payments received from persons subscribing for or ordering Shares in the Offering in accordance with the Plan and as described in the General Disclosure Package and the Prospectus or until refunds of such funds have been made to the persons entitled thereto or withdrawal authorizations canceled in accordance with the Plan and as described in the General Disclosure Package and the Prospectus. The Bank will maintain such records of all funds received to permit the funds of each subscriber to be separately insured by the FDIC (to the maximum extent allowable) and to enable the Bank to make the appropriate refunds of such funds in the event that such refunds are required to be made in accordance with the Plan and as described in the General Disclosure Package and the Prospectus.
(r) The Company will take all necessary action to timely register as a unitary savings and loan holding company under HOLA.
(s) The Company and the Bank will take such actions and furnish such information as are reasonably requested by the Agent in order for the Agent to ensure compliance with the NASD's "’s “Interpretation Relating to Free Riding and Withholding."”
(st) Neither None of the Company nor or the Bank will amend the Plan of Conversion without notifying the Agent prior thereto.
(tu) The Company shall assist the Agent, if necessary, in connection with the allocation of the Shares in the event of an oversubscription and shall provide the Agent with any information necessary to assist the Company in allocating the Shares in such event and such information shall be accurate and reliable in all material respects.
(uv) Prior to the Applicable Time and the Closing Date, the Company and Company, the Bank and Beacon Comprehensive will inform the Agent of any event or circumstances of which it is aware as a result of which the Registration Statement Statement, the General Disclosure Package and/or Prospectus, as then amended or supplemented, would contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading.
(vw) Subsequent to the date the Registration Statement is declared effective by the Commission SEC and prior to the Closing Date, except as otherwise may be indicated or contemplated therein or set forth in an amendment or supplement thereto, neither none of the Company nor or the Bank will have: (i) issued any securities or incurred any liability or obligation, direct or contingent, for borrowed money, except borrowings from the same or similar sources indicated in the General Disclosure Package and the Prospectus in the ordinary course of its business, or (ii) entered into any transaction which is material in light of the business and properties of the Company and the Bank, taken as a whole.
(w) The Company will promptly take all necessary action to register as a bank holding company under the BHC Act.
(x) The facts and representations provided to Jenkens & Xxxxxxxxx by the Bank and the Company and upon which Xxxxxxx & Xxxxxxxxx will base its opinion under Section 8(c)(1) are and will be truthful, accurate and complete.
Appears in 1 contract
Covenants of the Company and the Bank. The Company and the Bank hereby jointly and severally covenant with the Agent Webb as follows:
(a) Xxe Company has filed the Registration Statement with the Commission. The Company will not, at any time after the date the Registration Statement is declared effective, file any amendment or supplement to the Registration Statement without providing the Agent Webb and its counsel an opportunity opporxxxxty to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent Webb or its counsel shall reasonably reaxxxxbly object.
(b) Neither The Bank has filed the Conversion Application with the OTS. The Bank nor the Company willwill not, at any time after the Conversion Application and Holding Company Application are is approved by the AgenciesOTS, file any amendment or supplement to such Applications Conversion Application without providing the Agent Webb and its counsel an opportunity oppxxxxnity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent Webb or its counsel shall reasonably reaxxxxbly object.
(c) The Company will not, at any time before the Holding Company Application is approved by the OTS, file any amendment or supplement to such Holding Company Application without providing Webb and its counsel an oxxxxtunity to review the nonconfidential portions of such amendment or supplement or file any amendment or supplement to which amendment or supplement Webb or its counsel shall reaxxxxbly object.
(d) The Company and the Bank will use their best efforts to cause any post-effective amendment to the Registration Statement to be declared effective by the Commission and any post-approval effective amendment to the Conversion Application and Holding Company Application to be approved by the Agencies OTS and will immediately upon receipt of any information concerning the events listed below notify the AgentWebb: (i) when the Registration Registraxxxx Statement, as amended, has become effective; (ii) when the Conversion Application and Application, as amended, has been approved by the OTS; (iii) when the Holding Company Application, as amended have amended, has been approved by the Agencieshe OTS; (iiiiv) of any comments from the Commission, the Agencies OTS or any other governmental entity with respect to the Offering Conversion or the transactions contemplated by this Agreement; (ivv) of the request by the Commission, the Agencies OTS or any other governmental entity for any amendment or supplement to the Registration Statement, the Conversion Application and or the Holding Company Application or for additional information; (vvi) of the issuance by the Commissioncommission, the Agencies OTS or any other governmental entity of any order or other action suspending the Offering or the use of the Registration Statement or the Prospectus or any other filing of the Company or the Bank under the Conversion Regulations, BHC Act or other applicable law, or the threat of any such action; (vivii) the issuance by the Commission, the Agencies OTS or any state authority of any stop order suspending the effectiveness of the Registration Statement or the approval of the Conversion Application or Holding Company Application, or of the initiation or threat of initiation or threat of any proceedings for that any such purpose; or (viiviii) of the occurrence of any event mentioned in paragraph (gh) below. The Company and the Bank will make every reasonable effort (i) to prevent the issuance by the Commission, the Agencies OTS or any state authority of any such order and, if any such order shall at any time be issued and issued, (ii) to obtain the lifting thereof at the earliest possible time.
(de) The Company and the Bank will deliver to the Agent Webb and to its counsel two conformed cxxxxrmed copies of the Registration Statement, the Conversion Application and the Holding Company Application, as originally filed, filed and of each amendment or supplement thereto, including all exhibits. Further, the Company and the Bank will deliver such additional copies of the foregoing documents to counsel to the Agent Webb as may be required for any NASD axx XASD and "blue sky" sky filings.
(e) The Company and the Bank will furnish to the Agent, from time to time during the period when the Prospectus (or any later prospectus related to this offering) is required to be delivered under the 1933 Act or the Securities Exchange Act of 1934 (the "1934 Act"), such number of copies of such Prospectus (as amended or supplemented) as the Agent may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the rules and regulations promulgated under the 1934 Act (the "1934 Act Regulations"). The Company authorizes the Agent to use the Prospectus (as amended or supplemented, if amended or supplemented) in any lawful manner contemplated by the Plan in connection with the sale of the Shares by the Agent.
(f) The Company and the Bank will comply with any and all material terms, conditions, requirements and provisions with respect to the Offering, and the transactions contemplated thereby, imposed by the Commission, the Agencies or the Conversion Regulations or the BHC Act, and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations to be complied with prior to or subsequent to the Closing Date and when the Prospectus is required to be delivered, and during such time period the Company and the Bank will comply, at their own expense, with all material requirements imposed upon them by the Commission, the Agencies or the Conversion Regulations, the BHC Act and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, including, without limitation, Rule 10b-5 under the 1934 Act, in each case as from time to time in force, so far as necessary to permit the continuance of sales or dealing in the Common Stock during such period in accordance with the provisions hereof and the Prospectus.
(g) If, at any time during the period when the Prospectus relating to the Shares is required to be delivered, any event relating to or affecting the Company or the Bank shall occur, as a result of which it is necessary or appropriate, in the opinion of counsel for the Company and the Bank or in the reasonable opinion of the Agent's counsel, to amend or supplement the Registration Statement or Prospectus in order to make the Registration Statement or Prospectus not misleading in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, the Company and the Bank will immediately so inform the Agent and prepare and file, at their own expense, with the Commission and the Agencies and furnish to the Agent a reasonable number of copies of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or Prospectus (in form and substance reasonably satisfactory to the Agent and its counsel after a reasonable time for review) which will amend or supplement the Registration Statement or Prospectus so that as amended or supplemented it will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading. For the purpose of this Agreement, the Company and the Bank each will timely furnish to the Agent such information with respect to itself as the Agent may from time to time reasonably request.
(h) The Company and the Bank will take all necessary actions, in cooperating with the Agent, and furnish to whomever the Agent may direct, such information as may be required to qualify or register the Shares for offering and sale by the Company or to exempt such Shares from registration, or to exempt the Company as a broker-dealer and its officers, directors and employees as broker-dealers or agents under the applicable securities or blue sky laws of such jurisdictions in which the Shares are required under the Conversion Regulations to be sold or as the Agent and the Company and the Bank may reasonably agree upon; provided, however, that the Company shall not be obligated to file any general consent to service of process, to qualify to do business in any jurisdiction in which it is not so qualified, or to register its directors or officers as brokers, dealers, salesmen or agents in any jurisdiction. In each jurisdiction where any of the Shares shall have been qualified or registered as above provided, the Company will make and file such statements and reports in each fiscal period as are or may be required by the laws of such jurisdiction.
(i) The Bank shall duly establish and maintain the liquidation account for the benefit of Eligible Account Holders and Supplemental Eligible Account Holders in accordance with the requirements of the Conversion Regulations, and such Eligible Account Holders and Supplemental Eligible Account Holders who continue to maintain their savings accounts in the Bank will have an inchoate interest in their pro rata portion of the liquidation account, which shall have a priority superior to that of the holders of the Shares in the event of a complete liquidation of the Bank.
(j) The Company and the Bank will not sell or issue, contract to sell or otherwise dispose of, for a period of 180 days after the Closing Date, without the Agent's prior written consent, any Common Stock other than the Shares or other than in connection with any plan or arrangement described in the Prospectus, including existing stock benefit plans.
(k) The Company shall register its Common Stock under Section 12(g) of the 1934 Act on or prior to the Closing Date pursuant to the Plan and shall request that such registration be effective prior to or upon completion of the Offering. The Company shall maintain the effectiveness of such registration for not less than three years or such shorter period as may be required by the Agencies.
(l) During the period during which the Company's Common Stock is registered under the 1934 Act or for three years from the date hereof, whichever period is greater, the Company will furnish to its shareholders as soon as practicable after the end of each fiscal year an annual report of the Company (including a consolidated balance sheet and statements of consolidated income, shareholders' equity and cash flows of the Company and its subsidiaries as at the end of and for such year, certified by independent public accountants in accordance with Regulation S-X under the 1933 Act and the 1934 Act).
(m) During the period of three years from the date hereof, the Company will furnish to the Agent: (i) as soon as practicable after such information is publicly available, a copy of each report of the Company furnished to or filed with the Commission under the 1934 Act or any national securities exchange or system on which any class of securities of the Company is listed or quoted (including, but not limited to, reports on Forms 10-KSB, 10-QSB and 8-K and all proxy statements and annual reports to stockholders), (ii) a copy of each other non-confidential report of the Company mailed to its stockholders or filed with the Commission, the Agencies or any other supervisory or regulatory authority or any national securities exchange or system on which any class of securities of the Company is listed or quoted, each press release and material news items and additional documents and information with respect to the Company or the Bank as the Agent may reasonably request; and (iii) from time to time, such other nonconfidential information concerning the Company or the Bank as the Agent may reasonably request.
(n) The Company and the Bank will use the net proceeds from the sale of the Shares in the manner set forth in the Prospectus under the caption "How We Intend to Use the Proceeds."
(o) Other than as permitted by the Conversion Regulations, the BHC Act, the 1933 Act, the 1933 Act Regulations, and the laws of any state in which the Shares are registered or qualified for sale or exempt from registration, neither the Company nor the Bank will distribute any prospectus, offering circular or other offering material in connection with the offer and sale of the Shares.
(p) The Company will use its best efforts to (i) encourage and assist a market maker to establish and maintain a market for the Shares and (ii) list and maintain quotation of the Shares on the OTC Bulletin Board effective on or prior to the Closing Date.
(q) The Bank will maintain appropriate arrangements for depositing all funds received from persons mailing subscriptions for or orders to purchase Shares in the Offering on an interest-bearing basis at the rate described in the Prospectus until the Closing Date and satisfaction of all conditions precedent to the release of the Bank's obligation to refund payments received from persons subscribing for or ordering Shares in the Offering in accordance with the Plan and as described in the Prospectus or until refunds of such funds have been made to the persons entitled thereto or withdrawal authorizations canceled in accordance with the Plan and as described in the Prospectus. The Bank will maintain such records of all funds received to permit the funds of each subscriber to be separately insured by the FDIC (to the maximum extent allowable) and to enable the Bank to make the appropriate refunds of such funds in the event that such refunds are required to be made in accordance with the Plan and as described in the Prospectus.
(r) The Company and the Bank will take such actions and furnish such information as are reasonably requested by the Agent in order for the Agent to ensure compliance with the NASD's "Interpretation Relating to Free Riding and Withholding."
(s) Neither the Company nor the Bank will amend the Plan without notifying the Agent prior thereto.
(t) The Company shall assist the Agent, if necessary, in connection with the allocation of the Shares in the event of an oversubscription and shall provide the Agent with any information necessary to assist the Company in allocating the Shares in such event and such information shall be accurate and reliable in all material respects.
(u) Prior to the Closing Date, the Company and the Bank will inform the Agent of any event or circumstances of which it is aware as a result of which the Registration Statement and/or Prospectus, as then amended or supplemented, would contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading.
(v) Subsequent to the date the Registration Statement is declared effective by the Commission and prior to the Closing Date, except as otherwise may be indicated or contemplated therein or set forth in an amendment or supplement thereto, neither the Company nor the Bank will have: (i) issued any securities or incurred any liability or obligation, direct or contingent, for borrowed money, except borrowings from the same or similar sources indicated in the Prospectus in the ordinary course of its business, or (ii) entered into any transaction which is material in light of the business and properties of the Company and the Bank, taken as a whole.
(w) The Company will promptly take all necessary action to register as a bank holding company under the BHC Act.
(x) The facts and representations provided to Jenkens & Xxxxxxxxx by the Bank and the Company and upon which Xxxxxxx & Xxxxxxxxx will base its opinion under Section 8(c)(1) are and will be truthful, accurate and complete.
Appears in 1 contract
Covenants of the Company and the Bank. The Company and the Bank hereby ------------------------------------- Bank, jointly and severally severally, covenant with each of the Agent Underwriters as follows:
(a) The Company Company, subject to Section 3(b), will notcomply with the requirements of Rule 430A or Rule 434, at any time after as applicable, and will notify the date the Registration Statement is declared effective, file any amendment or supplement to the Registration Statement without providing the Agent and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably object.
Underwriters immediately (bi) Neither the Bank nor the Company will, at any time after the Conversion Application and Holding Company Application are approved by the Agencies, file any amendment or supplement to such Applications without providing the Agent and its counsel an opportunity to review such amendment or supplement or file any amendment or supplement to which amendment or supplement the Agent or its counsel shall reasonably object.
(c) The Company and the Bank will use their best efforts to cause when any post-effective amendment to the Registration Statement to be declared effective by the Commission and shall become effective, or any post-approval amendment supplement to the Conversion Application and Holding Company Application to be approved by the Agencies and will immediately upon receipt of Prospectus or any information concerning the events listed below notify the Agent: (i) when the Registration Statementamended Prospectus shall have been filed, as amended, has become effective; (ii) when of the Conversion Application and Holding Company Application, as amended have been approved by the Agencies; (iii) receipt of any comments from the Commission, the Agencies or any other governmental entity with respect to the Offering or the transactions contemplated by this Agreement; (iviii) of the any request by the Commission, Commission for any amendment to the Agencies Registration Statement or any other governmental entity for any amendment or supplement to the Registration Statement, the Conversion Application and the Holding Company Application Prospectus or for additional information; information and (viv) of the issuance by the Commission, the Agencies or any other governmental entity of any order or other action suspending the Offering or the use of the Registration Statement or the Prospectus or any other filing of the Company or the Bank under the Conversion Regulations, BHC Act or other applicable law, or the threat of any such action; (vi) the issuance by the Commission, the Agencies or any authority Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threat of initiation or threat threatening of any proceedings for that purpose; or (vii) any of the occurrence of any event mentioned in paragraph (g) belowsuch purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) and will take such steps as it deems necessary to ascertain promptly whether the Bank form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, if it was not, the Company will make every promptly refile such prospectus. The Company will use reasonable effort (i) efforts to prevent the issuance by the Commission, the Agencies or any state authority of any such stop order and, if any such stop order shall at any time be issued and (ii) is issued, to obtain the lifting thereof at the earliest possible timemoment.
(b) The Company will (i) give the Underwriters notice of its intention to file or prepare any amendment to the Registration Statement (including any filing under Rule 462(b)), any Term Sheet or any amendment, supplement or revision to either the prospectus included in the Registration Statement at the time it became effective or to the Prospectus, (ii) furnish the Underwriters with copies of any such documents a reasonable amount of time prior to such proposed filing or use of such documents, as the case may be, and (iii) not file or use any such document to which the Underwriters or counsel for the Underwriters shall reasonably object.
(c) The Company has furnished or will deliver to the Underwriters and counsel for the Underwriters, without charge, signed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein) and signed copies of all consents and certificates of experts, and will also deliver to the Underwriters, without charge, a conformed copy of the Registration Statement as originally filed and of each amendment thereto (without exhibits) for each of the Underwriters. The copies of the Registration Statement and each amendment thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(d) The Company has delivered to each Underwriter, without charge, as many copies of each preliminary prospectus as such Underwriter reasonably requested, and the Bank will deliver Company hereby consents to the Agent and to its counsel two conformed use of such copies of for purposes permitted by the Registration Statement, the Conversion Application and the Holding Company Application, as originally filed, and of each amendment or supplement thereto, including all exhibits1933 Act. Further, the Company and the Bank will deliver such additional copies of the foregoing documents to counsel to the Agent as may be required for any NASD and "blue sky" filings.
(e) The Company and the Bank will furnish to the Agenteach Underwriter, from time to time without charge, during the period when the Prospectus (or any later prospectus related to this offering) is required to be delivered under the 1933 Act or the Securities Exchange Act of 1934 (the "1934 Act"), such number of copies of such the Prospectus (as amended or supplemented) as the Agent such Underwriter may reasonably request for request. The Prospectus and any amendments or supplements thereto furnished to the purposes Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(e) The Company will comply with the 1933 Act and the 1933 Act Regulations so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If at any time when a prospectus is required by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the rules and regulations promulgated under the 1934 Act (the "1934 Act Regulations"). The Company authorizes the Agent to use the Prospectus (as amended or supplemented, if amended or supplemented) in any lawful manner contemplated by the Plan be delivered in connection with the sale sales of the Shares by the Agent.
(f) The Company and the Bank will comply with any and all material terms, conditions, requirements and provisions with respect to the Offering, and the transactions contemplated thereby, imposed by the Commission, the Agencies or the Conversion Regulations or the BHC Act, and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations to be complied with prior to or subsequent to the Closing Date and when the Prospectus is required to be delivered, and during such time period the Company and the Bank will comply, at their own expense, with all material requirements imposed upon them by the Commission, the Agencies or the Conversion Regulations, the BHC Act and by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, including, without limitation, Rule 10b-5 under the 1934 Act, in each case as from time to time in force, so far as necessary to permit the continuance of sales or dealing in the Common Stock during such period in accordance with the provisions hereof and the Prospectus.
(g) If, at any time during the period when the Prospectus relating to the Shares is required to be deliveredSecurities, any event relating to shall occur or affecting the Company or the Bank condition shall occur, exist as a result of which it is necessary or appropriatenecessary, in the opinion of counsel for the Company and Underwriters or for the Bank or in the reasonable opinion of the Agent's counselCompany, to amend the Registration Statement or amend or supplement the Registration Statement or Prospectus in order to make the Registration Statement or Prospectus not misleading in light of the circumstances existing at the time that the Prospectus is delivered to a purchaser, the Company and the Bank will immediately so inform the Agent and prepare and file, at their own expense, with the Commission and the Agencies and furnish to the Agent a reasonable number of copies of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or Prospectus (in form and substance reasonably satisfactory to the Agent and its counsel after a reasonable time for review) which will amend or supplement the Registration Statement or Prospectus so that as amended or supplemented it will not contain an include 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 existing at the time the Prospectus is delivered to a purchaser, not misleading. For the purpose of this Agreement, the Company and the Bank each will timely furnish to the Agent such information with respect to itself as the Agent may from time to time reasonably request.
(h) The Company and the Bank will take all necessary actions, in cooperating with the Agent, and furnish to whomever the Agent may direct, such information as may be required to qualify or register the Shares for offering and sale by the Company or to exempt such Shares from registration, or to exempt the Company as a broker-dealer and its officers, directors and employees as broker-dealers or agents under the applicable securities or blue sky laws of such jurisdictions in which the Shares are required under the Conversion Regulations to be sold or as the Agent and the Company and the Bank may reasonably agree upon; provided, however, that the Company shall not be obligated to file any general consent to service of process, to qualify to do business in any jurisdiction in which it is not so qualified, or to register its directors or officers as brokers, dealers, salesmen or agents in any jurisdiction. In each jurisdiction where any of the Shares shall have been qualified or registered as above provided, the Company will make and file such statements and reports in each fiscal period as are or may be required by the laws of such jurisdiction.
(i) The Bank shall duly establish and maintain the liquidation account for the benefit of Eligible Account Holders and Supplemental Eligible Account Holders in accordance with the requirements of the Conversion Regulations, and such Eligible Account Holders and Supplemental Eligible Account Holders who continue to maintain their savings accounts in the Bank will have an inchoate interest in their pro rata portion of the liquidation account, which shall have a priority superior to that of the holders of the Shares in the event of a complete liquidation of the Bank.
(j) The Company and the Bank will not sell or issue, contract to sell or otherwise dispose of, for a period of 180 days after the Closing Date, without the Agent's prior written consent, any Common Stock other than the Shares or other than in connection with any plan or arrangement described in the Prospectus, including existing stock benefit plans.
(k) The Company shall register its Common Stock under Section 12(g) of the 1934 Act on or prior to the Closing Date pursuant to the Plan and shall request that such registration be effective prior to or upon completion of the Offering. The Company shall maintain the effectiveness of such registration for not less than three years or such shorter period as may be required by the Agencies.
(l) During the period during which the Company's Common Stock is registered under the 1934 Act or for three years from the date hereof, whichever period is greater, the Company will furnish to its shareholders as soon as practicable after the end of each fiscal year an annual report of the Company (including a consolidated balance sheet and statements of consolidated income, shareholders' equity and cash flows of the Company and its subsidiaries as at the end of and for such year, certified by independent public accountants in accordance with Regulation S-X under the 1933 Act and the 1934 Act).
(m) During the period of three years from the date hereof, the Company will furnish to the Agent: (i) as soon as practicable after such information is publicly available, a copy of each report of the Company furnished to or filed with the Commission under the 1934 Act or any national securities exchange or system on which any class of securities of the Company is listed or quoted (including, but not limited to, reports on Forms 10-KSB, 10-QSB and 8-K and all proxy statements and annual reports to stockholders), (ii) a copy of each other non-confidential report of the Company mailed to its stockholders or filed with the Commission, the Agencies or any other supervisory or regulatory authority or any national securities exchange or system on which any class of securities of the Company is listed or quoted, each press release and material news items and additional documents and information with respect to the Company or the Bank as the Agent may reasonably request; and (iii) from time to time, such other nonconfidential information concerning the Company or the Bank as the Agent may reasonably request.
(n) The Company and the Bank will use the net proceeds from the sale of the Shares in the manner set forth in the Prospectus under the caption "How We Intend to Use the Proceeds."
(o) Other than as permitted by the Conversion Regulations, the BHC Act, the 1933 Act, the 1933 Act Regulations, and the laws of any state in which the Shares are registered or qualified for sale or exempt from registration, neither the Company nor the Bank will distribute any prospectus, offering circular or other offering material in connection with the offer and sale of the Shares.
(p) The Company will use its best efforts to (i) encourage and assist a market maker to establish and maintain a market for the Shares and (ii) list and maintain quotation of the Shares on the OTC Bulletin Board effective on or prior to the Closing Date.
(q) The Bank will maintain appropriate arrangements for depositing all funds received from persons mailing subscriptions for or orders to purchase Shares in the Offering on an interest-bearing basis at the rate described in the Prospectus until the Closing Date and satisfaction of all conditions precedent to the release of the Bank's obligation to refund payments received from persons subscribing for or ordering Shares in the Offering in accordance with the Plan and as described in the Prospectus or until refunds of such funds have been made to the persons entitled thereto or withdrawal authorizations canceled in accordance with the Plan and as described in the Prospectus. The Bank will maintain such records of all funds received to permit the funds of each subscriber to be separately insured by the FDIC (to the maximum extent allowable) and to enable the Bank to make the appropriate refunds of such funds in the event that such refunds are required to be made in accordance with the Plan and as described in the Prospectus.
(r) The Company and the Bank will take such actions and furnish such information as are reasonably requested by the Agent in order for the Agent to ensure compliance with the NASD's "Interpretation Relating to Free Riding and Withholding."
(s) Neither the Company nor the Bank will amend the Plan without notifying the Agent prior thereto.
(t) The Company shall assist the Agent, if necessary, in connection with the allocation of the Shares in the event of an oversubscription and shall provide the Agent with any information necessary to assist the Company in allocating the Shares in such event and such information shall be accurate and reliable in all material respects.
(u) Prior to the Closing Date, the Company and the Bank will inform the Agent of any event or circumstances of which it is aware as a result of which the Registration Statement and/or Prospectus, as then amended or supplemented, would contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleadingmisleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the opinion of such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b), such amendment or supplement as may be necessary to correct such statement or omission or to make the Registration Statement or the Prospectus comply with such requirements, and the Company will furnish to the Underwriters such number of copies of such amendment or supplement as the Underwriters may reasonably request.
(vf) Subsequent The Company will use reasonable efforts, in cooperation with the Underwriters, to qualify the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions as the Underwriters may designate and to maintain such qualifications in effect for a period of not less than one year from the later of the effective date of the Registration Statement and any Rule 462(b) Registration Statement; provided, -------- however, that the Company shall not be obligated to file any general consent to ------- service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is declared effective not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. In each jurisdiction in which the Securities have been so qualified, the Company will file such statements and reports as may be required by the Commission laws of such jurisdiction to continue such qualification in effect for a period of not less than one year from the later of the effective date of the Registration Statement and prior any Rule 462(b) Registration Statement.
(g) The Company will timely file such reports pursuant to the Closing Date1934 Act as are necessary in order to make generally available to its securityholders as soon as practicable an earnings statement for the purposes of, except as otherwise may be indicated or and to provide the benefits contemplated therein or set forth in an amendment or supplement theretoby, neither the last paragraph of Section 11(a) of the 1933 Act.
(h) The Company nor will use reasonable efforts to effect and maintain the Bank quotation of the Securities on the Nasdaq National Market and will have: file with the Nasdaq National Market all documents and notices required by the Nasdaq National Market.
(i) issued any securities or incurred any liability or obligationThe Company will not without the prior written consent of Xxxxx Fargo, direct or contingent(i) offer, for borrowed moneysell, except borrowings from the same or similar sources indicated in the Prospectus in the ordinary course of its businesscontract to sell, pledge, or otherwise dispose of (ii) entered or enter into any transaction which is material designed to, or might reasonably be expected to, result in light of the business and properties disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establishing or increasing a put equivalent position or liquidating or decreasing a call equivalent position within the meaning of Section 16 of the Exchange Act with respect to, any securities with characteristics and terms similar to or convertible into, or exercisable or exchangeable for, the BankSecurities or Bank Preferred Stock; or (ii) publicly announce an intention to effect any such transaction, taken as for a wholeperiod of 30 days after the date of this Agreement.
(wj) The Company, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will file all documents required to be filed with the Commission pursuant to the 1934 Act within the time periods required by the 1934 Act and the rules and regulations of the Commission thereunder.
(k) The Company will promptly take all necessary action advise the Underwriters promptly, and if requested by the Underwriters, will confirm such advice in writing, so long as delivery of a prospectus relating to register as a bank holding company the Securities by an underwriter or dealer may be required under the BHC Act1933 Act or the 1933 Act Regulations, of (i) any material change in the Company's or the Bank's condition (financial or otherwise), prospects, earnings, business or properties or (ii) any new material information relating to the Company or the Bank or relating to any matter stated in the Prospectus or the Registration Statement which comes to the attention of the Company.
(xl) The facts Company will cooperate with the Underwriters and representations provided use its reasonable best efforts to Jenkens & Xxxxxxxxx permit the Securities to be eligible for clearance and settlement through the facilities of DTC.
(m) The Company will use the proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under "Use of Proceeds."
(n) The Company and the Bank and will each continue to use their respective commercially reasonable best efforts to cause the Company and upon which Xxxxxxx & Xxxxxxxxx will base its opinion to continue to qualify as a REIT under Section 8(c)(1) are and will be truthful, accurate and completethe Code.
Appears in 1 contract
Samples: Underwriting Agreement (First Republic Preferred Capital Corp)
