HANOVER BANCORP, INC. (a New York corporation) [●] Shares of Common Stock UNDERWRITING AGREEMENT Dated: [●], 2022 [●] Shares HANOVER BANCORP, INC. Common Stock UNDERWRITING AGREEMENT
Exhibit 1.1
HANOVER BANCORP, INC.
(a New York corporation)
[●] Shares of Common Stock
Dated: [●], 2022
[●] Shares
HANOVER BANCORP, INC.
Common Stock
[●], 2022
XXXXXXXX INC.
(As representative of Underwriters listed in Annex A hereto)
c/o | Stephens Inc. 000 Xxxxxx Xxxxxx Xxxxxx Xxxx, Xxxxxxxx 00000 |
Ladies and Gentlemen:
Hanover Bancorp, Inc., a New York corporation (“Company”), proposes to issue and sell to the several underwriters named in Annex A hereto (“Underwriters”), pursuant to the terms set forth herein (this “Agreement”), an aggregate of [●] shares (the “Firm Shares”) of Company’s Common Stock, par value $0.01 per share (the “Common Stock”). Company has also granted to Underwriters an option to purchase from Company up to an additional [●] shares of Common Stock (the “Option Shares”). The Firm Shares and the Option Shares are hereinafter referred to collectively as the “Shares.” Xxxxxxxx Inc. has agreed to act as representative of the several Underwriters (in such capacity, “Representative”) in connection with the offering and sale of the Shares.
Company has prepared and filed with the United States Securities and Exchange Commission (the “Commission”) a registration statement on Form S-1 (File No. 333-262920) which includes a form of prospectus to be used in connection with the public offering and sale of the Shares. Such registration statement, as amended, including the financial statements, exhibits and schedules thereto, in the form in which it became effective under the Securities Act of 1933, as amended (the “Securities Act”), and the rules and regulations promulgated thereunder (the “Securities Act Regulations”), including any information deemed to be a part thereof at the time of effectiveness pursuant to Rule 430A under the Securities Act, is referred to herein as the “Registration Statement.” From and after the date and time of filing any registration statement pursuant to Rule 462(b) under the Securities Act (a “Rule 462(b) Registration Statement”), the term “Registration Statement” shall include the Rule 462(b) Registration Statement. The prospectus, in the form first used by Underwriters to confirm sales of the Shares or in the form first made available to Underwriters by Company to meet requests of purchasers pursuant to Rule 173 under the Securities Act, is referred to herein as the “Prospectus.” Each prospectus in preliminary form that describes the Shares and the offering thereof and is used prior to the filing of the Prospectus is referred to herein as a “preliminary prospectus.” The preliminary prospectus relating to the Shares that was included in the Registration Statement immediately prior to the Applicable Time (as defined below) is hereinafter called the “Pricing Prospectus.” The “Pricing Disclosure Package” means the Pricing Prospectus, together with the Issuer Free Writing Prospectuses (as defined below), if any, listed on Annex B hereto, and the pricing information conveyed orally to investors, as set forth on Annex B hereto. For the purposes of this Agreement, the “Applicable Time” is [●] p.m., New York City time, on [●], 2022. Any “issuer free writing prospectus” (as defined in Rule 433 under the Securities Act) relating to the offering of the Shares contemplated hereunder is hereinafter called an “Issuer Free Writing Prospectus.” As used herein, “Road Show” means a “road show” (as defined in Rule 433 under the Securities Act) relating to the offering of the Shares contemplated hereby that is a “written communication” (as defined in Rule 405 under the Securities Act). All references to the Registration Statement, any preliminary prospectus, the Pricing Prospectus, the Prospectus, any Issuer Free Writing Prospectus or any amendment or supplement to any of the foregoing shall be deemed to include the copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system or any successor system thereto (“XXXXX”). “Testing-the-Waters Communication” means any oral or written communication with potential investors undertaken in reliance on Section 5(d) of the Securities Act. “Written Testing-the-Waters Communication” means any Testing-the-Waters Communication that is a “written communication” within the meaning of Rule 405 under the Securities Act. “Permitted Written Testing-the-Waters Communications” means the Written Testing-the-Waters Communications, if any, listed on Annex C hereto.
Company and Underwriters agree that up to [5]1% of the Firm Shares (the “Directed Shares”) shall be reserved for sale by Underwriters to certain eligible directors, executive officers, employees and other business associates of Company and its Subsidiaries (as defined herein) (collectively, the “Directed Share Participants”), as part of the distribution of the Shares by Underwriters, subject to the terms of this Agreement, the applicable rules, regulations and interpretations of the Financial Industry Regulatory Authority, Inc. (“FINRA”) and all other applicable laws, rules and regulations. To the extent that such Directed Shares are not orally confirmed for purchase, and subject to an agreement to purchase, by the Directed Share Participants by the end of the first business day after the date of this Agreement, such Directed Shares may be offered to the public as part of the public offering contemplated hereby.
Company and Bank (as defined below) confirm as follows their respective agreements with Representative and the several other Underwriters.
Section 1. Representations and Warranties of Company and Bank.
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Each of the Registration Statement and any post-effective amendment thereto, at the time of its effectiveness and as of each deemed effective date with respect to Underwriters pursuant to Rule 430B(f)(2) of the Securities Act, complied in all material respects with the requirements of the Securities Act and the Securities Act Regulations. Each preliminary prospectus, the Pricing Prospectus, the Prospectus and any amendment or supplement thereto, at the time each was filed with the Commission, complied in all material respects with the requirements of the Securities Act and the Securities Act Regulations and are identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
The documents incorporated or deemed to be incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, when they became effective or at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and the rules and regulations promulgated thereunder (the “Exchange Act Regulations”).
The representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or any amendment thereto or the Pricing Disclosure Package or the Prospectus or any amendment or supplement thereto made in reliance upon and in conformity with information furnished in writing or confirmed in writing to Company by any Underwriter through Representative expressly for use therein. For purposes of this Agreement, the only information so furnished or confirmed shall be the information under the heading “Underwriting—Stabilization” and the first sentence under the heading “Underwriting—Passive Market Making,” in each case, contained in the Registration Statement, the preliminary prospectus contained in the Pricing Disclosure Package and the Prospectus (collectively, the “Underwriter Information”).
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(viii) Good Standing of Company. Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of New York and has the requisite corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement; and Company is duly qualified as a foreign corporation to transact business and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify or to be in good standing would not reasonably be expected to result in a Material Adverse Effect.
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(ix) Good Standing of Subsidiaries. Hanover Community Bank (“Bank”) is a bank chartered under the laws of the State of New York to transact business as a state financial institution, and the charter of Bank is in full force and effect. Bank is the only “significant subsidiary” of Company (as such term is defined in Rule 1-02 of Regulation S-X) and is the only subsidiary of Company listed on Exhibit 21.1 to the Registration Statement (the “Significant Subsidiary”). Each other subsidiary (as defined in Rule 405 under the Securities Act) of Company (each, a “Subsidiary”) has been duly organized and is validly existing as a corporation or other organization in good standing under the laws of the jurisdiction of its incorporation, formation or organization, has the requisite corporate or organizational power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus and is duly qualified as a foreign corporation or other business entity to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify or to be in good standing would not reasonably be expected to result in a Material Adverse Effect. Except as otherwise disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, all of the issued and outstanding capital stock of each such Subsidiary has been duly and validly authorized and issued, is fully paid and non-assessable and is owned by Company, directly or through Subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity; none of the outstanding shares of capital stock of any Subsidiary was issued in violation of the preemptive or similar rights of any securityholder of such Subsidiary arising by operation of law, or under the articles of incorporation, bylaws or other organizational documents of Company or any Subsidiary or under any agreement to which Company or any Subsidiary is a party. The only Subsidiaries of Company are those listed on Annex D hereto, which includes (A) the Significant Subsidiary and (B) certain other subsidiaries which, considered in the aggregate as a single subsidiary, do not constitute a “significant subsidiary” as defined in Rule 1-02 of Regulation S-X. Except for the Subsidiaries, Company does not own beneficially, directly or indirectly, more than five percent (5%) of any class of equity securities or similar interests in any corporation, business trust, association or similar organization, and is not, directly or indirectly, a partner in any partnership or party to any joint venture.
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(xxi) Compliance with Bank Regulatory Authorities. Company and each of its Subsidiaries is in compliance in all material respects with all applicable laws, rules and regulations (including, without limitation, all applicable regulations and orders) of, or agreements with, the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation (“FDIC”), the New York State Department of Financial Services (“NYSDFS”) (collectively, the “Bank Regulatory Authorities”), the Equal Credit Opportunity Act, the Fair Housing Act, the Truth in Lending Act, the Community Reinvestment Act (the “CRA”), the Home Mortgage Disclosure Act, Bank Secrecy Act and Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (the “USA Patriot Act”), to the extent such laws or regulations apply to Company or Bank, as applicable. Company and Bank have no knowledge of any facts and circumstances, and have no reason to believe that any facts or circumstances exist, that would cause Bank (A) to be deemed not to be in satisfactory compliance with the CRA and the regulations promulgated thereunder or to be assigned a CRA rating by federal or state banking regulators of lower than “satisfactory,” or (B) to be deemed to be operating in violation, in any material respect, of Bank Secrecy Act of 1970 (or otherwise known as the “Currency and Foreign Transactions Re porting Act”), the USA Patriot Act or any order issued with respect to the Anti-Money Laundering Laws (as defined below). As of the date hereof, Bank was “well managed” and met or exceeded the standards necessary to be considered “well capitalized” under the regulatory framework for prompt corrective action of the FDIC and the NYSDFS. Bank is the only depository institution subsidiary of Company and Bank is a member in good standing of the Federal Home Loan Bank System. The activities of Bank are permitted under the laws and regulations of the United States, the NYSDFS and the FDIC. Since September 30, 2015, Company, Bank and each of their respective subsidiaries have filed all material reports, registrations and statements, together with any required amendments thereto, that it was required to file with the Bank Regulatory Authorities, and any other applicable federal or state banking authorities. All such reports and statements filed with any such regulatory body or authority are collectively referred to herein as the “Company Reports.” As of their respective dates, the Company Reports complied as to form in all material respects with all the rules and regulations promulgated by the Federal Reserve, Bank Regulatory Authorities and any other applicable federal or state banking authorities, as the case may be. Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, none of Company, Bank or any of their respective Subsidiaries is a party or subject to any formal or informal agreement, memorandum of understanding, consent decree, directive, cease-and-desist order, order of prohibition or suspension, written commitment, supervisory agreement or other written statement as described under 12 U.S.C. 1818(u) with, or order issued by, or has adopted any board resolutions at the request of, any Bank Regulatory Authority or any other bank regulatory authority that restricts materially the conduct of its business, or in any manner relates to its capital adequacy, its credit policies or its management, nor have any of them been advised by any Bank Regulatory Authority that it is contemplating issuing or requesting (or is considering the appropriateness of issuing or requesting) any such order, decree, agreement, memorandum of understanding, extraordinary supervisory letter, commitment letter or similar submission, or any such board resolutions, or that impose any restrictions or requirements not generally applicable to bank holding companies or commercial banks. There is no unresolved material violation, criticism or exception by any Bank Regulatory Authority with respect to any examination of Company, Bank or any of Company’s other Subsidiaries.
(xxii) Accuracy of Exhibits. There are no contracts or documents which are required to be (A) described in the Registration Statement, the Pricing Disclosure Package, the Prospectus or the documents incorporated by reference therein or (B) filed as exhibits thereto, which have not been so described or filed as required.
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(lvii) Accuracy of Permitted Written Testing-the-Waters Communications. As of the Applicable Time, each Permitted Written Testing-the-Waters Communication, as supplemented by and taken together with the Pricing Disclosure Package, did not, as of the Applicable Time, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and each Permitted Written Testing-the-Waters Communication, if any, does not, as of the date hereof, conflict with the information contained in the Registration Statement, any preliminary prospectus, the Pricing Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus; and Company has filed publicly on XXXXX at least 15 calendar days prior to any Road Show, any confidentially submitted the Registration Statement and the Registration Statement amendments relating to the offer and sale of the Shares.
(i) Good Standing of Bank. Bank has been duly chartered and is validly existing as a state-chartered bank in good standing under the laws of the State of New York, and has been duly qualified as a foreign bank for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such other jurisdiction.
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Section 2. Sale; Option Shares.
(a) On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, (i) Company agrees to sell to each of Underwriters, and each of Underwriters agrees, severally and not jointly, to purchase from Company, at a purchase price per share of $[●] (the “Purchase Price”), the number of Firm Shares set forth opposite the name of such Underwriter in Annex A hereto and (ii) in the event and to the extent that Underwriters shall exercise the election to purchase Option Shares as provided below, Company agrees to sell to each of Underwriters, and each of Underwriters agrees, severally and not jointly, to purchase from Company, at the Purchase Price, the number of Option Shares (to be adjusted by Representative so as to eliminate fractional shares) determined by multiplying (x) the number of Option Shares as to which such election shall have been exercised by (y) a fraction, the numerator of which is the aggregate number of Firm Shares to be purchased by such Underwriter as set forth opposite the name of such Underwriter in Annex A hereto and the denominator of which is the aggregate number of Firm Shares to be purchased by all of Underwriters from Company.
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(b) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions set forth herein, Company hereby grants to Underwriters the right to purchase at their election up to [●] Option Shares, at the Purchase Price. Underwriters may exercise their option to acquire Option Shares in whole or in part from time to time only by written notice from Representative to Company given within a period of 30 calendar days after the date of this Agreement and setting forth (i) the aggregate number of Option Shares to be purchased and (ii) the time, date and place at which such Option Shares are to be delivered, as determined by Representative but in no event earlier than the Closing Date or, unless Representative and Company otherwise agree in writing, earlier than two or later than ten business days after the date of such notice.
Section 3. Delivery to Underwriters; Closing.
(a) It is understood that the several Underwriters propose to offer the Firm Shares for sale to the public upon the terms and conditions set forth in the Prospectus.
Company and the Transfer Agent will deliver the Firm Shares to Representative through the facilities of DTC for the accounts of Underwriters, against payment of the purchase price therefor in Federal (same day) funds by official bank check or checks or wire transfer drawn to the order of Company, in the case of Firm Shares sold by Company, pro rata based on the number of Firm Shares sold by each of them, under instructions from the Transfer Agent, at [●] A.M., New York City time, on [●], 2022, unless postponed in accordance with Section 10 hereof, or such other time and date not later than [●] p.m., New York City time, on [●], 2022, as Representative and Company determine, such time being referred to herein as the “Closing Date.” For purposes of Rule 15c6-1 under the Exchange Act, the Closing Date (if later than the otherwise applicable settlement date) shall be the settlement date for payment of funds and delivery of securities for all the Firm Shares. The certificates or book-entry security entitlements for the Firm Shares so to be delivered will be in such denominations and registered in such names as Representative requests and, if the Firm Shares are to be certificated, will be delivered and made available for checking and packaging at the above office of Holland & Knight LLP at least 24 hours prior to the Closing Date.
(b) Each time for the delivery of and payment for the Option Shares, being herein referred to as an “Option Closing Date,” which may be the Closing Date, shall be determined by Representative as provided above. Company will deliver the Option Shares being purchased on each Option Closing Date to Representative through the facilities of DTC for the accounts of Underwriters, against payment of the purchase price therefor in Federal (same day) funds by official bank check or checks or wire transfer drawn to the order of Company at the above office of Holland & Knight LLP, at [●] a.m., New York City time, on the applicable Option Closing Date. The certificates or book-entry security entitlements for the Option Shares so to be delivered will be in such denominations and registered in such names as Representative requests and, if the Option Shares are to be certificated, will be delivered and made available for checking and packaging at the above office of Holland & Knight LLP at least 24 hours prior to such Option Closing Date.
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Section 4. Covenants.
(a) Covenants of Company. Company further covenants and agrees with each of Underwriters as follows:
(i) Company, subject to Section 4(a)(ii) hereof, will comply with the requirements of Rule 430A under the Securities Act, and will notify Representative promptly, and confirm the notice in writing, (A) when any post-effective amendment to the Registration Statement shall become effective, or any amendment or supplement to the Prospectus shall have been filed, to furnish Representative with copies thereof, and to file promptly all materials required to be filed by Company with the Commission pursuant to Rule 433(d) under the Securities Act, (B) of the receipt of any comments from the Commission, (C) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (D) of the issuance by the 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, the Pricing Prospectus, or of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes. Company will promptly effect the filings necessary pursuant to Rule 424(b) under the Securities Act 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. Company will use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof as soon as possible.
(ii) Company will give Representative notice of its intention to file or prepare any amendment to the Registration Statement, or any amendment, supplement or revision to any preliminary prospectus, the Pricing Prospectus or the Prospectus. Company (A) will furnish to Representative for review, a reasonable period of time prior to the proposed time of filing of any proposed amendment or supplement to the Registration Statement, a copy of each such amendment or supplement, and (B) will not amend or supplement the Registration Statement without Representative’s prior written consent. Prior to amending or supplementing any preliminary prospectus, the Pricing Prospectus or the Prospectus, Company shall furnish to Representative for review, a reasonable amount of time prior to the time of filing or use of the proposed amendment or supplement, a copy of each such proposed amendment or supplement. Company shall not file or use any such proposed amendment or supplement without Representative’s prior written consent. Company shall file with the Commission within the applicable period specified in Rule 424(b) under the Securities Act any prospectus required to be filed pursuant to such rule.
(iii) Company shall furnish to Representative for review, a reasonable amount of time prior to the proposed time of filing or use thereof, a copy of each proposed free writing prospectus or any amendment or supplement thereto prepared by or on behalf of, used by, or referred to by Company, and Company shall not file, use or refer to any proposed free writing prospectus or any amendment or supplement thereto without Representative’s prior written consent. Company shall furnish to each Underwriter, without charge, as many copies of any free writing prospectus prepared by or on behalf of, used by or referred to by Company as such Underwriter may reasonably request. If at any time when a prospectus is required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) in connection with sales of the Shares (but in any event if at any time through and including the Closing Date) there occurred or occurs an event or development as a result of which any free writing prospectus prepared by or on behalf of, used by, or referred to by Company conflicted or would conflict with the information contained in the Registration Statement, the Pricing Prospectus or the Prospectus or included or would include an untrue statement of a material fact or omitted or could omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at such time, not misleading, Company shall promptly amend or supplement such free writing prospectus to eliminate or correct such conflict so that the statements in such free writing prospectus as so amended or supplemented will not 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 prevailing at such time, not misleading, as the case may be; provided, that prior to amending or supplementing any such free writing prospectus, Company shall furnish to Representative for review, a reasonable amount of time prior to the proposed time of filing or use thereof, a copy of such proposed amended or supplemented free writing prospectus, and Company shall not file, use or refer to any such amended or supplemented free writing prospectus without Representative’s prior written consent.
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(iv) Company will use its best efforts to qualify the Shares for offering and sale under the securities laws of such jurisdictions as Representative may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided that nothing in this Section 4(a)(iv) shall require Company to qualify as a foreign corporation in any jurisdiction in which it is not already so qualified or to file a general consent to service of process in any jurisdiction or to subject itself to taxation in respect of doing business in any jurisdiction in which it is otherwise not so subject.
(v) Company has furnished or will deliver to Representative, without charge, signed copies of the Registration Statement as originally filed, any Rule 462(b) Registration Statement and of each amendment to each (including exhibits filed therewith or incorporated by reference therein) and signed copies of all consents and certificates of experts, and will also deliver to Representative, without charge, a conformed copy of the Registration Statement as originally filed and of each amendment thereto (without exhibits) for each of Underwriters, in each case in such quantities as Representative reasonably requests. The copies of the Registration Statement and each amendment thereto furnished to 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.
(vi) Company has delivered to each Underwriter, without charge, as many written and electronic copies of each preliminary prospectus and the Pricing Prospectus as such Underwriter reasonably requested, and Company hereby consents to the use of such copies for purposes permitted by the Securities Act. Company will furnish to each Underwriter, without charge, prior to 5:00 p.m., New York City time, on the business day next succeeding the date of this Agreement and from time to time thereafter during the period when the Prospectus is required to be delivered in connection with sales of the Shares under the Securities Act or the Exchange Act or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act, such number of written and electronic copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request. The Prospectus and any amendments or supplements thereto furnished to 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.
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(vii) If at any time following the distribution of any Permitted Written Testing-the-Waters Communication there occurred or occurs an event or development as a result of which such Permitted Written Testing-the-Waters Communication 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 the light of the circumstances existing at that subsequent time, not misleading, Company will promptly notify Representative and, should Underwriters request, will promptly amend or supplement, at its own expense, such Permitted Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. Company will timely file such reports pursuant to the Exchange Act as are necessary in order to make generally available to its security holders as soon as practicable an earnings statement for the purposes of, and to provide the benefits contemplated by, the last paragraph of Section 11(a) of the Securities Act.
(viii) Company will use the net proceeds received by it from the sale of the Shares in the manner specified in the Pricing Prospectus under the heading “Use of Proceeds.”
(ix) Company shall engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(x) Company will use its reasonable best efforts to effect and maintain the listing of the Common Stock (including the Shares) on NASDAQ.
(xi) During a period of 180 days from the date of the Prospectus (the “Lock- Up Period”), Company will not, directly or indirectly, without the prior written consent of Representative, (A) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant for the sale of, hypothecate, establish an open “put equivalent position” within the meaning of Rule 16a-1(h) under the Exchange Act, or otherwise dispose of or transfer any shares of Common Stock or any securities convertible into or exchangeable or exercisable for Common Stock, or exercise any right with respect to the registration of any of the foregoing, file or cause to be filed any registration statement in connection therewith under the Securities Act, (B) enter into any swap, hedge or any other agreement or any transaction that transfers, in whole or in part, the economic consequence of ownership of the Common Stock, whether any such swap, hedge or transaction is to be settled by delivery of Common Stock or other securities, in cash or otherwise, or (C) publicly disclose the intention to make any such offer, pledge, sale or disposition, or to enter into any such swap, hedge, transaction or other arrangement other than (w) the issuance of Common Stock or other securities (including securities convertible into or exchangeable or exercisable for Common Stock or other securities) issued as consideration for the acquisition by Company of substantially all of the securities, business, properties or other assets of another person or entity which acquisition has been publicly announced prior to the date of this Agreement; (x) the Shares to be sold hereunder, (y) the issuance of restricted stock awards, options to acquire shares of Common Stock, or other equity-based awards (including shares of Common Stock issuable upon exercise of any such awards) granted pursuant to Company’s benefit plans existing on the date hereof that are described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, as such plans may be amended, or the filing of one or more registration statements on Form S-8 with respect to the issuance of securities under such benefit plans in each case where such restricted stock awards, options, or other equity-based award vest after the expiration of the Lock-Up Period, or (z) the issuance of shares of Common Stock upon the exercise of any such options or equity based awards.
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(xii) During the Lock-Up Period, Company will enforce all agreements between Company and any of its security holders that restrict or prohibit, expressly or in operation, the offer, sale or transfer of shares of Common Stock or securities convertible into or exchangeable or exercisable for any shares of Common Stock, or any of the other actions restricted or prohibited under the terms of the form of “lock-up” agreement. In addition, Company will direct the transfer agent to place stop transfer restrictions upon any such securities of Company that are bound by such “lock-up” agreements for the duration of the periods contemplated in such agreements, including, without limitation, “lock-up” agreements entered into by Company’s executive officers, directors and shareholders pursuant to Section 6(n) hereof.
(xiii) If Representative, in its sole discretion, agrees to release or waive the restrictions set forth in a “lock-up” agreement described in Section 6(n) hereof for an executive officer or director of Company and provides Company with notice of the impending release or waiver at least three business days before the effective date of the release or waiver, Company agrees to announce the impending release or waiver by a press release substantially in the form of Exhibit B hereto through a major news service at least two business days before the effective date of the release or waiver.
(xiv) Company will comply with the Securities Act and the Exchange Act so as to permit the completion of the distribution of the Shares as contemplated by this Agreement, the Registration Statement, the Pricing Disclosure Package and the Prospectus. Without limiting the generality of the foregoing, Company will, during the period when a prospectus relating to the Shares is required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule), file on a timely basis with the Commission and NASDAQ all reports and documents required to be filed under the Exchange Act. Additionally, Company shall report the use of proceeds from the issuance of the Shares as may be required under Rule 463 under the Securities Act. If at any time when a prospectus is required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) in connection with sales of the Shares (but in any event if at any time through and including the Closing Date or any Option Closing Date) there occurred or occurs an event or development as a result of which it is necessary, in the opinion of counsel for Underwriters for Company, to amend the Registration Statement or amend or supplement any preliminary prospectus, the Pricing Prospectus or the Prospectus in order that such preliminary prospectus, the Pricing Prospectus or Prospectus will not include any untrue statements of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading 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 any preliminary prospectus, the Pricing Prospectus or the Prospectus in order to comply with the requirements of the Securities Act or the Securities Act Regulations, Company will promptly prepare and file with the Commission, subject to Section 4(a)(ii), such amendment or supplement as may be necessary to correct such statement or omission or to make the Registration Statement or any preliminary prospectus, the Pricing Prospectus or the Prospectus comply with such requirements, and Company will furnish to Underwriters such number of copies of such amendment or supplement as Underwriters may reasonably request.
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(xv) Company will file with the Commission such information as may be required pursuant to Rule 463 under the Securities Act.
(xvi) During a period of five years from the effective date of the Registration Statement, Company will furnish to Representative copies of all reports or other communications (financial or other) furnished to shareholders generally, and to deliver to Representative (A) as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange on which any class of securities of Company is listed, and (B) such additional information concerning the business and financial condition of Company as Representative may from time to time reasonably request (such financial statements to be on a consolidated basis to the extent the accounts of Company and the Subsidiaries are consolidated in reports furnished to its shareholders generally or to the Commission); provided, Company will be deemed to have furnished such reports, financial statements and other information to the extent such reports, financial statements and other information is filed with the SEC and publicly available.
(xvii) Company shall not invest or otherwise use the proceeds received by Company from its sale of the Shares in such a manner as would require Company or any of the Subsidiaries to register as an investment company under the Investment Company Act.
(xviii) If Company elects to rely upon Rule 462(b) under the Securities Act, Company will file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., New York City time, on the date of this Agreement, and at the time of filing either to pay to the Commission the filing fee for the Rule 462(b) Registration Statement or to give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Securities Act.
(xix) If so requested by Representative, Company shall cause to be prepared and delivered, at its expense, within one business day from the effective date of this Agreement, to Representative an electronic Prospectus to be used by Underwriters in connection with the offering and sale of the Shares. As used herein, the term “electronic Prospectus” means a form of preliminary prospectus, Pricing Prospectus, any Issuer Free Writing Prospectus or the Prospectus, and any amendment or supplement thereto, that meets each of the following conditions: (A) it shall be encoded in an electronic format, satisfactory to Representative, that may be transmitted electronically by Representative and the other Underwriters to offerees and purchasers of the Shares, (B) it shall disclose the same information as such paper preliminary prospectus, Pricing Prospectus, Issuer Free Writing Prospectus or the Prospectus, as the case may be, and (C) it shall be in or convertible into a paper format or an electronic format, satisfactory to Representative, that will allow investors to store and have continuously ready access to such preliminary prospectus, Pricing Prospectus, Issuer Free Writing Prospectus or the Prospectus at any future time, without charge to investors (other than any fee charged for subscription to the Internet generally). Company hereby confirms that, if so requested by Representative, it has included or will include in the Prospectus filed with the Commission an undertaking that, upon receipt of a request by an investor or his or her representative, Company shall transmit or cause to be transmitted promptly, without charge, a paper copy of such paper preliminary prospectus, Pricing Prospectus, Issuer Free Writing Prospectus or the Prospectus to such investor or representative.
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(xx) Company will use its reasonable best efforts to ensure that the Directed Shares will be restricted as required by FINRA or FINRA rules from sale, transfer, assignment, pledge or hypothecation for a period of three months following the date of this Agreement. Underwriters will notify Company in writing as to which persons, if any, will need to be so restricted. At the request of Underwriters, Company will direct the transfer agent to place a stop transfer restriction upon such securities for such period of time. Should Company release, or seek to release, from such restrictions any of the Directed Shares, Company agrees to reimburse Underwriters for any reasonable expenses (including, without limitation, reasonable legal expenses) they incur in connection with, or as a result of, such release. Company will comply with all applicable securities and other applicable laws, rules and regulations in each jurisdiction in which the Directed Shares are offered in connection with the Directed Share Program.
(xxi) Company will not take, and will use its reasonable best efforts to ensure that no affiliate of Company will take, directly or indirectly, any action designed to cause or result in or which constitutes or would reasonably be expected to constitute stabilization or manipulation of the price of the Shares or any reference security with respect to the Shares, whether to facilitate the sale or resale of the Shares or otherwise, and Company will, and will use its best efforts to cause each of its affiliates to, comply with all applicable provisions of Regulation M under the Exchange Act.
(xxii) Company represents and agrees that, without the prior consent of Representative, it has not made and will not make any offer relating to the Shares that would constitute a “free writing prospectus” as defined in Rule 405 under the Securities Act; any such free writing prospectus the use of which has been consented to by Company and Representative is listed on Annex B hereto.
(xxiii) Company has complied and will comply with the requirements of Rule 433 under the Securities Act applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or retention where required and legending; Company represents that it has satisfied and agrees that it will satisfy the conditions under Rule 433 under the Securities Act to avoid a requirement to file with the Commission any electronic Road Show.
(xxiv) During the period beginning on the date hereof and ending on the later of the fifth anniversary of the Closing Date or the date on which Underwriters receive full payment in satisfaction of any claim for indemnification or contribution to which they may be entitled pursuant to Section 8 or Section 9 of this Agreement, neither Company nor Bank shall, without the prior written consent of Representative, take or permit to be taken any action that could result in Bank’s common stock becoming subject to any security interest, mortgage, pledge, lien or encumbrance; provided that Company and Bank may continue to pledge the shares of common stock of Bank to secure the existing loan to Company from Valley National Bank, N.A., as such loan and security arrangement may be modified, amended, renewed or replaced from time to time or a new Company-level and/or Bank-level credit facility or line of credit in the ordinary course of business, and provided further, that this covenant shall be null and void if the Federal Reserve, the NYSDFS, the FDIC or any federal or state bank regulator or regulatory authority having jurisdiction over Bank, by regulation, policy statement or interpretive release or by written order or written advice addressed to Bank and specifically addressing the provisions of Section 8 hereof, permits indemnification of Underwriters by Bank as contemplated by such provisions.
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(xxv) Company and its Subsidiaries will comply with all effective applicable provisions of the Xxxxxxxx-Xxxxx Act.
(xxvi) Company will promptly notify Representative if Company ceases to be an Emerging Growth Company at any time prior to the later of (i) completion of the distribution of Shares within the meaning of the Securities Act and (ii) completion of the Lock-Up Period.
Section 5. Payment of Expenses.
Company covenants and agrees with the several Underwriters that, whether or not the transactions contemplated by this Agreement are consummated, Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including (A) the fees, disbursements and expenses of Company’s counsel, accountants and other advisors, (B) filing fees and all other expenses in connection with the preparation, printing, filing and delivering of the Registration Statement (including financial statements and exhibits), each preliminary prospectus, the Pricing Prospectus, any Issuer Free Writing Prospectus, any Permitted Testing-the-Waters Communication and the Prospectus and amendments and supplements thereto and the mailing and delivering of copies thereof to Underwriters and dealers, (C) the cost of printing, producing or delivering this Agreement, closing documents (including any compilations thereof) and such other documents as may be required in connection with the offering, purchase, sale and delivery of the Shares, (D) all expenses in connection with the qualification (or obtaining exemptions from the qualification or registration) of the Shares for offering and sale under securities laws of state or foreign jurisdictions as provided in Section 4(a)(iv), including filing fees and the reasonable fees and disbursements of counsel for Underwriters in connection with such qualification and in connection with the Blue Sky survey, (E) all fees and expenses in connection with listing the Common Stock (including the Shares) on NASDAQ, (F) the costs, fees and expenses incurred by Underwriters in connection with determining their compliance with the rules and regulations of FINRA related to Underwriters’ participation in the offering and distribution of the Shares, including any related filing fees and the reasonable fees and disbursements of counsel to Underwriters, (G) all fees and expenses in connection with the preparation, issuance and delivery of the certificates representing the Shares to Underwriters, including any stock or other transfer taxes and any stamp or other duties payable upon the sale, issuance or delivery of the Shares to Underwriters, (H) the cost and charges of any transfer agent or registrar, (I) the transportation and other expenses incurred by Company in connection with presentations to prospective purchasers of Shares, (J) the costs and expenses of Company relating to investor presentations on any Road Show, any Permitted Written Testing-the-Waters Communication or any Testing-the-Waters Communication undertaken in connection with the offering of the Shares, including, without limitation, expenses associated with the preparation or dissemination of any electronic Road Show, expenses associated with the production of Road Show slides and graphics, fees and expenses of any consultants engaged in connection with the Road Show presentations with the prior approval of Company, travel and lodging expenses of Representative, employees and officers of Company and any such consultants in connection with the Road Show, (K) all fees and expenses of Underwriters in connection with matters relating to the Directed Shares, including reasonable fees and disbursements of counsel for Underwriters, (L) all costs and expenses incurred by Underwriters in connection with the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of copies of information or materials relating to the Directed Shares, (M) all stamp duties, similar taxes or duties or other taxes, if any, incurred by Underwriters in connection with the Directed Shares, and (N) all other fees and expenses of Underwriters (including fees and disbursements of the counsel for Underwriters and marketing, syndication and travel expenses and any expenses related to an investor presentation and/or roadshow that are incurred by Underwriters), provided that payment or reimbursement by Company of such fees and expenses shall not exceed $200,000; and all other costs and expenses incident to the performance of its obligations hereunder which are not otherwise specifically provided for in this Section.
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Section 6. Conditions of Underwriters’ Obligation.
The several obligations of Underwriters hereunder to purchase the Shares on the Closing Date or each Option Closing Date, as the case may be, are subject to the performance by Company of its obligations hereunder and to the following additional conditions:
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If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated, subject to the provisions of Section 12, by Representative by notice to Company at any time at or prior to the Closing Date or Option Closing Date, as the case may be, and such termination shall be without liability of any party to any other party, except as provided in Section 5, Section 8, Section 9 and Section 12.
Section 7. Effective Time of the Agreement.
This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.
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(i) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), including any information deemed to be a part thereof pursuant to Rule 430B of the Securities Act (“Rule 430B”), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading; or, arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus, any Issuer Free Writing Prospectus, the Pricing Disclosure Package or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission in any preliminary prospectus, any Issuer Free Writing Prospectus, the Pricing Disclosure Package or the Prospectus (or any amendment or supplement thereto) of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission or any other violation of any federal or state securities law or regulation; provided that (subject to Section 8(e) hereof) any such settlement is effected with the written consent of Company;
(iii) against any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by Representative), reasonably incurred in investigating, preparing or defending against, or appearing as a witness or providing information or documents in connection with any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with Underwriter Information in the Registration Statement (or any amendment thereto), including any information deemed to be a part thereof pursuant to Rule 430B, or in any preliminary prospectus, any Issuer Free Writing Prospectus, the Pricing Disclosure Package or the Prospectus (or any amendment or supplement thereto). Notwithstanding the foregoing, the indemnification obligation of Bank in this Section 8 shall be limited with respect to Bank to the extent necessary if (a) a Governmental Entity having jurisdiction over Bank by written communication addressed to Bank or its board of directors, including in connection with any examination of Bank, informs Bank or its board of directors that such Governmental Entity has determined that such indemnification violates Sections 23A or 23B of the Federal Reserve Act, as amended, or another law, rule, regulation or policy applicable to Bank or Company, (b) a Governmental Entity notifies Bank by written communication that such indemnification would result in an adverse impact on Bank’s examination ratings or (c) such indemnification would give rise to civil money penalties or other sanctions.
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(e) Indemnification for Directed Shares. In connection with the offer and sale of the Directed Shares, Company and Bank, jointly and severally, agree to indemnify and hold harmless each Underwriter, its Affiliates, selling agents, officers and directors and each person, if any, who controls any Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all loss, liability, claim, damage and expense (including, without limitation, any legal or other expenses reasonably incurred in connection with defending, investigating, or settling any such action or claim) as incurred by them (i) caused by the failure of any Directed Share Participant to pay for and accept delivery of Directed Shares which have been orally confirmed by the end of the first business day following the date of this Underwriting Agreement or (ii) related to, or arising out of or in connection with, the offering of the Directed Shares.
Section 9. Contribution.
If the indemnification provided for in Section 8 hereof is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, (i) in such proportion as is appropriate to reflect the relative benefits received by Company or Bank, as the case may be, on the one hand, and Underwriters, on the other hand, from the offering of the Shares pursuant to this Agreement or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of Company or Bank, as the case may be, on the one hand, and Underwriters, on the other hand, in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by Company or Bank, as the case may be, on the one hand, and Underwriters, on the other hand, in connection with the offering of the Shares pursuant to this Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the offering of the Shares pursuant to this Agreement (before deducting expenses) received by Company or Bank, as the case may be, on the one hand, and the total underwriting discount received by Underwriters, on the other hand, in each case as set forth on the cover of the Prospectus, bear to the aggregate initial public offering price of the Shares as set forth on the cover of the Prospectus.
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The relative fault of Company or Bank, as the case may be, on the one hand, and Underwriters, on the other hand, shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by Company or Bank, as the case may be, or by Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
Company, Bank, and Underwriters, severally and not jointly, agree that it would not be just and equitable if contribution pursuant to this Section 9 were determined by pro rata allocation (even if Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 9. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 9 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against, or appearing as a witness or providing information or documents in connection with, any litigation, or any formal or informal request investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 9, no Underwriter shall be required to contribute any amount in excess of the underwriting discount received by such Underwriter in connection with the Shares underwritten by it and distributed to the public. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. Underwriters’ respective obligations to contribute pursuant to this Section 9 are several in proportion to the number of Firm Shares set forth opposite their respective names in Annex A hereto and not joint.
For purposes of this Section 9, each person, if any, who controls an Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and each Underwriter’s Affiliates, officers, directors and selling agents shall have the same rights to contribution as such Underwriter, and each director of Company, each officer of Company who signed the Registration Statement, and each person, if any, who controls Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as Company, as applicable. Notwithstanding the foregoing, the contribution obligations of Bank in this Section 9 shall be limited with respect to Bank to the extent necessary if (a) a Governmental Entity having jurisdiction over Bank by written communication addressed to Bank or its board of directors, including in connection with any examination of Bank, informs Bank or its board of directors that such Governmental Entity has determined that such contribution violates Sections 23A or 23B of the Federal Reserve Act, as amended, or another law, rule, regulation or policy applicable to Bank or Company, (b) a Governmental Entity notifies Bank by written communication that such contribution would result in an adverse impact on Bank’s examination ratings or (c) such contribution would give rise to civil money penalties or other sanctions.
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Section 10. Defaulting Underwriter.
(a) If any Underwriter or Underwriters default in its or their obligations to purchase Shares hereunder on the Closing Date or any Option Closing Date and the aggregate number of Shares that such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of the total number of Shares that Underwriters are obligated to purchase on such Closing Date or Option Closing Date, as the case may be, Representative may make arrangements satisfactory to Company for the purchase of such Shares by other persons, including any of Underwriters, but if no such arrangements are made by such Closing Date or Option Closing Date, as the case may be, the non-defaulting Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the Shares that such defaulting Underwriters agreed but failed to purchase on such Closing Date or Option Closing Date, as the case may be. If any Underwriter or Underwriters so default and the aggregate number of Shares with respect to which such default or defaults occur exceeds 10% of the total number of Shares that Underwriters are obligated to purchase on such Closing Date or Option Closing Date, as the case may be, and arrangements satisfactory to Representative and Company for the purchase of such Shares by other persons are not made within 36 hours after such default, this Agreement will terminate, without liability on the part of any non-defaulting Underwriter or Company, except as provided in Section 12. Nothing herein will relieve a defaulting Underwriter from liability for its default.
(b) In the event of any such default which does not result in a termination of this Agreement, either Representative or Company shall have the right to postpone the Closing Date or the relevant Option Closing Date, as the case may be, for a period not exceeding seven days, in order to effect any required changes to the Registration Statement or Prospectus or any other documents or arrangements. As used in this Agreement, the term “Underwriter” includes any person substituted for an Underwriter under this Section 10.
Section 11. Termination.
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Section 12. Effect of Termination.
(a) The respective indemnities, agreements, representations, warranties and other statements of Company or its officers, of Bank, and of the several Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation, or statement as to the results thereof, made by or on behalf of any Underwriter, Company, Bank, or any of their respective representatives, officers or directors or any controlling person, and will survive delivery of and payment for the Shares.
(b) If this Agreement is terminated pursuant to Section 6, Section 10 or Section 11 or if for any reason the purchase of any of the Shares by Underwriters is not consummated, Company shall remain responsible for the expenses to be paid or reimbursed by them pursuant to Section 5, the respective obligations of Company, Bank, and Underwriters pursuant to Section 8 and the provisions of Section 9 and Section 10 shall remain in effect and, if any Shares have been purchased hereunder, the representations and warranties in Section 1 and all obligations under Section 5, Section 8 and Section 9 shall also remain in effect.
(c) If this Agreement is terminated by Underwriters, or any of them, under Section 6, Section 10 or Section 11 or otherwise because of any failure or refusal on the part of Company to comply with the terms or to fulfill any of the conditions of this Agreement, or if for any reason any of Company shall be unable to perform its obligations under this Agreement or any condition of Underwriters’ obligations cannot be fulfilled, Company agrees to reimburse Underwriters or such Underwriters as have so terminated this Agreement with respect to themselves, severally, for all out-of-pocket expenses (including the fees and expenses of their counsel) reasonably incurred by Underwriters in connection with this Agreement or the offering contemplated hereunder.
Section 13. Successors; Assigns.
This Agreement shall inure to the benefit of and be binding upon Company, Bank, and Underwriters, the officers and directors of Company referred to herein, any controlling persons referred to herein and their respective successors and assigns. Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any other person, firm or corporation, other than Underwriters, Company, Bank, and their respective successors and the controlling persons and officers and directors referred to in Section 8 and Section 9 and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision herein contained. This Underwriting Agreement and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of Underwriters, Company, Bank, and their respective successors, and said controlling persons, officers and directors and other persons or entities and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Shares from any Underwriter shall be deemed to be a successor or assign by reason merely of such purchase.
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Section 14. Notices.
All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given upon receipt thereof by the recipient if mailed or transmitted by any standard form of telecommunication. Notices to Underwriters shall be given to Representative, c/o Stephens Inc., 000 Xxxxxx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000 (email: [●]), Attention: Legal Dept., with a copy (which shall not constitute notice) to Holland & Knight LLP, 0000 Xxxxxxxxxx Xx., Xxxxx 0000, Xxxxxx XX 00000, Attention: Xxxxx Xxxxxx (email: xxxxx.xxxxxx@xxxxx.xxx). Notices to Company shall be given to it at Hanover Bancorp, Inc., [●], Attention: [●], with a copy (which shall not constitute notice) to Xxxxxxx Xxxx Xxxx & Xxxxxxxxxx, LLP, [●], Attention: [●] (email: [●]).
Section 15. Counterparts.
This Agreement may be signed in counterparts, each of which shall be an original and all of which together shall constitute one and the same instrument. The exchange of copies of this Agreement and of signature pages by facsimile or other electronic means shall constitute effective execution and delivery of this Agreement by the parties hereto and may be used in lieu of the original signature pages to this Agreement for all purposes.
Section 16. Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ALL RESPECTS IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ANY CONFLICT OF LAWS OR CHOICE OF LAW PRINCIPLES THAT MIGHT OTHERWISE REFER CONSTRUCTION OR INTERPRETATION OF THIS AGREEMENT TO THE SUBSTANTIVE LAW OF ANOTHER JURISDICTION.
Section 17. Miscellaneous.
(a) The parties hereby submit to the jurisdiction of and venue in the state and federal courts located in the City of New York, New York, in connection with any dispute related to this Agreement including, without limitation, any suit or proceeding arising out of or relating to this Agreement, any transaction contemplated hereby, the Pricing Prospectus, the Prospectus, Registration Statement, the offering of the Shares or any other matter contemplated hereby. Company and Bank, severally and not jointly, irrevocably and unconditionally waive any objection to the laying of venue of any such suit or proceeding arising out of or relating to this Agreement, the Pricing Prospectus, the Prospectus, the Registration Statement, the offering of the Shares or any transactions contemplated hereby in a New York Court, and irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such suit or proceeding in any such court has been brought in an inconvenient forum.
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(b) Company and Bank, severally and not jointly, each acknowledge and agree that (i) the purchase and sale of the Shares pursuant to this Agreement, including the determination of the public offering price of the Shares and any related discounts and commissions, is an arm’s-length commercial transaction between Company and Bank on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of Company and Bank or their respective shareholders, creditors, employees or any other party, (iii) no Underwriter has assumed an advisory or fiduciary responsibility in favor of Company and Bank with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising Company and Bank on other matters) or any other obligation to Company and Bank except the obligations expressly set forth in this Agreement, and (iv) each of Company and Bank has consulted its own legal and financial advisors to the extent it deemed appropriate. Company and Bank severally and not jointly agree that each will not claim that Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to Company and Bank in connection with such transaction or the process leading thereto.
(c) Company acknowledges that Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies, and that such Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to Company and/or the offering that differ from the views of their respective investment banking divisions. Company hereby waives and releases, to the fullest extent permitted by law, any claims that Company may have against Underwriters with respect to any conflict of interest that may arise from the fact that the views expressed by their independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to Company by such Underwriters’ investment banking divisions. Company acknowledges that each of Underwriters is a full service securities firm and as such from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that may be the subject of the transactions contemplated by this Agreement.
(d) Notwithstanding anything herein to the contrary, Company is authorized to disclose to any persons the U.S. federal and state income tax treatment and tax structure of the potential transaction and all materials of any kind (including tax opinions and other tax analyses) provided to Company relating to that treatment and structure, without Underwriters imposing any limitation of any kind. However, any information relating to the tax treatment and tax structure shall remain confidential (and the foregoing sentence shall not apply) to the extent necessary to enable any person to comply with securities laws. For this purpose, “tax structure “ is limited to any facts that may be relevant to that treatment.
(e) This Agreement constitutes the entire agreement of the parties to this Agreement and supersedes all prior agreements and understandings (whether written or oral) among Company, Bank and Underwriters, or any of them, with respect to the subject matter hereof.
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(f) COMPANY, BANK AND EACH UNDERWRITER, SEVERALLY AND NOT JOINTLY, HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(g) This Agreement may not be amended or modified unless in writing signed by all of the parties hereto, and no condition herein (express or implied) may be waived unless waived in writing by each party whom the condition is meant to benefit. The headings herein are for convenience only and shall not affect the construction hereof. The invalidity or unenforceability of any Section, paragraph or provision of this Agreement shall not affect the validity or enforceability of any other Section, paragraph or provision hereof. If any Section, paragraph or provision of this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor changes (and only such minor changes) as are necessary to make it valid and enforceable.
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If the foregoing is in accordance with your understanding of our agreement, please sign and return to Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among Company, Bank and Underwriters in accordance with its terms.
Very truly yours, | ||
HANOVER BANCORP, INC. | ||
By: | ||
Name: | ||
Title: | ||
HANOVER COMMUNITY BANK | ||
By: | ||
Name: | ||
Title: |
[Signature Page to Underwriting Agreement]
The foregoing Underwriting Agreement is hereby confirmed and accepted by Representative in New York, New York as of the date first above written.
XXXXXXXX INC. | ||
XXXXXXXX INC. | ||
By: | ||
Name: | ||
Title: | ||
For itself and as Representative of the other Underwriters named in Annex A hereto |
[Signature Page to Underwriting Agreement]
ANNEX A
Underwriters | Number
of Firm Shares to be Purchased | ||
Xxxxxxxx Inc | [●] | ||
Xxxxx Xxxxxxx & Co | [●] | ||
[●] | [●] | ||
Total | [●] |
Annex A
ANNEX B
Issuer Free Writing Prospectuses
Free Writing Prospectus, filed with the Commission on [●], 2022.
Pricing Information Conveyed Orally to Investors
The public offering price per share for the Shares shall be $[●].
The purchase price per share for the Shares to be paid by the several Underwriters shall be $[●], being an amount equal to the public offering price set forth above, less $[●] per share.
Annex B
ANNEX C
Permitted Written Testing-the-Waters Communications
1. | Company Initial Public Offering, Roadshow Presentation, dated [●] 2022. |
Annex C
ANNEX D
Subsidiaries of Company
Hanover Community Bank
Annex D
EXHIBIT A
FORM OF LOCK-UP AGREEMENT
[●], 20[●]
HANOVER BANCORP, INC.
[●]
and
XXXXXXXX INC.
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
As Representative of the several Underwriters
Re | Proposed Public Offering of Common Stock by Hanover Bancorp, Inc. |
Ladies and Gentlemen:
The undersigned, a shareholder, an executive officer and/or a director of Hanover Bancorp, Inc., a New York corporation (“Company”), understands that Xxxxxxxx Inc. (the “Representative”), as representative of the several Underwriters (each an “Underwriter” and collectively, the “Underwriters”), proposes to enter into an Underwriting Agreement (the “Underwriting Agreement”) with Company providing for the public offering (the “Offering”) of shares of Company’s Common Stock, par value $0.01 per share (including any securities convertible into or exchangeable or exercisable for such common stock, the “Common Stock”).
In recognition of the benefit that the Offering will confer upon the undersigned as a shareholder, executive officer and/or director of Company, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned agrees with each Underwriter to be named in the Underwriting Agreement that, commencing on the date hereof and ending on, and including, the date that is 180 days from the date of the Underwriting Agreement (such 180-day period being referred to herein as the “Lock-Up Period”), the undersigned will not (and will cause any spouse or immediate family member (as defined in Rule 16a-1(e) under the Securities Exchange Act of 1934, as amended (“Exchange Act”)) of the spouse or the undersigned living in the undersigned’s household, any partnership, corporation or other entity within the undersigned’s control, and any trustee of any trust that holds Common Stock or other securities of Company for the benefit of the undersigned or such spouse or immediate family member not to), without the prior written consent of Representative, directly or indirectly, (i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant for the sale of, hypothecate, establish an open “put equivalent position” within the meaning of Rule 16a-1(h) under the Exchange Act, or otherwise dispose of or transfer any shares of Common Stock, whether now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition, or exercise any right with respect to the registration of any of the foregoing, or file or cause to be filed any registration statement in connection therewith under the Securities Act of 1933, as amended (the “Securities Act”), (ii) enter into any swap, hedge or any other agreement or any transaction that transfers, in whole or in part, the economic consequence of ownership of the Common Stock, whether any such swap, hedge or transaction is to be settled by delivery of Common Stock or other securities, in cash or otherwise, or (iii) publicly disclose the intention to make any such offer, pledge, sale or disposition, or to enter into any such swap, hedge, transaction or other arrangement. For the avoidance of doubt, if the undersigned is an officer or director of Company, the undersigned acknowledges that the foregoing shall be applicable to any shares of Common Stock the undersigned may purchase through the directed share program of the Offering.
Exhibit A
Notwithstanding the foregoing, the undersigned may transfer the undersigned’s shares of Common Stock (i) as a bona fide gift or gifts including through a distribution by a trust, family limited partnership, corporation or other entity, provided that the donee or donees agree to be bound in writing by the restrictions set forth herein; (ii) to any corporation, trust, family limited partnership or other entity for the direct or indirect benefit of the undersigned or the immediate family (as defined in Rule 16a-1(e) under the Exchange Act) of the undersigned; provided, that the corporation, the trustee of the trust or general partner of the family limited partnership, as the case may be, agrees to be bound by the restrictions set forth herein; and provided further, that any such transfer shall not involve a disposition for value; (iii) to Company, to satisfy any tax withholding obligations of Company or the undersigned, or to satisfy the exercise price of stock options by the undersigned, upon exercise by the undersigned of stock options or vesting of outstanding restricted stock awards or other similar equity incentive awards that have been granted by Company prior to, and are outstanding as of, the date of the Underwriting Agreement; provided that the underlying Common Stock continues to be subject to the terms of this letter agreement; (iv) pursuant to a pledge in a bona fide transaction which is outstanding prior to or as of the date hereof to a lender to the undersigned and disclosed in writing to Representative prior to the execution of this letter agreement; or (v) with the prior written consent of Representative.
The undersigned represents and warrants that the undersigned beneficially owns the shares of Common Stock covered by this letter agreement and that the undersigned now has and, except as contemplated by clauses (i) through (v) above, for the duration of this letter agreement will have good and marketable title to the undersigned’s shares of Common Stock, free and clear of all liens, encumbrances, and claims whatsoever. The undersigned also agrees and consents to the entry of stop transfer instructions with Company’s transfer agent and registrar against the transfer of the undersigned’s shares of Common Stock, except in compliance with this letter agreement. In furtherance of the foregoing, Company and its transfer agent are hereby authorized to decline to make any transfer of securities if such transfer would constitute a violation or breach of this letter agreement.
In addition, the undersigned agrees that, during the Lock-Up Period, without the prior written consent of Representative (which consent may be withheld in their sole discretion): (i) the undersigned will not request, make any demand for or exercise any right with respect to, the registration of any shares of Common Stock, and (ii) the undersigned waives any and all notice requirements and rights with respect to the registration of any shares of Common Stock pursuant to any agreement, understanding or otherwise to which the undersigned is a party.
The undersigned represents and warrants that the undersigned has full power and authority to enter into this letter agreement. The undersigned agrees that the provisions of this letter agreement are irrevocable and shall be binding also upon the successors, assigns, heirs and legal representatives of the undersigned.
Exhibit A
The undersigned understands that, if the registration statement on Form S-1 with respect to the Offering is withdrawn or if the Underwriting Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated prior to payment for and delivery of the shares of Common Stock to be sold thereunder, the undersigned shall be released from all obligations under this letter agreement.
This letter agreement shall be governed by and construed in accordance with the laws of the State of New York.
[Signature page follows]
Exhibit A
The undersigned understands that Company and Underwriters are relying upon this letter agreement in proceeding toward consummation of the Offering.
Very truly yours, |
Signature: |
Name: |
[Signature page to Lock-Up Agreement]
Exhibit A
EXHIBIT A-1
List of Persons and Entities Executing Lock-Up Agreements
Directors and Officers:
1. | [●] |
2. | [●] |
3. | [●] |
4. | [●] |
5. | [●] |
6. | [●] |
7. | [●] |
Shareholders:
8. | [●] |
9. | [●] |
10. | [●] |
Exhibit A-1
EXHIBIT B
Form of Press Release
HANOVER BANCORP, INC.
[●], 202[●]
Hanover Bancorp, Inc. (“Company”) announced today that Xxxxxxxx Inc. as lead bookrunner in Company’s recent initial public offering of [●] shares of its common stock, are [waiving][releasing] a lock-up restriction with respect to [●] shares of Company’s common stock held by [certain officers or directors][an officer or director] of Company. The [waiver][release] will take effect on [●], and the shares may be sold on or after such date.
This press release is not an offer or sale of the securities in the United State s or in any other jurisdiction where such offer or sale is prohibited, and such securities may not be offered or sold in the United States absent registration or an exemption from registration under the United States Securities Act of 1933, as amended.
Exhibit B
EXHIBIT C
Form Opinion of Counsel for Company
Form of opinion of counsel for Company to be delivered pursuant to Section 6(f) of the Underwriting Agreement.
References to the Prospectus in this Exhibit A include any amendments and supplements thereto at the Closing Date. Capitalized terms used in this Exhibit A without definition shall have the respective meanings ascribed to them in the Underwriting Agreement.
(i) Company is a corporation organized under New York law, its corporate status is active, and has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus and to enter into and perform its obligations under the Underwriting Agreement;
(ii) Company is duly qualified as a foreign corporation to transact business and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify or to be in good standing would not result in a Material Adverse Effect;
(iii) Bank is a New York state-chartered financial institution, as defined in [relevant New York statutes], and is authorized to conduct a banking business in the State of New York in accordance with the requirements and conditions set forth in the [relevant New York statutes]. Bank has the requisite organizational power and authority to enter into and perform its obligations under the Underwriting Agreement;
(iv) Company has an authorized capitalization as set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus and all of the issued and outstanding shares of capital stock of Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the descriptions thereof contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus;
(v) The Shares to be purchased by Underwriters from Company have been duly and validly authorized for issuance and sale to Underwriters pursuant to the Underwriting Agreement and, when issued and delivered by Company pursuant to the Underwriting Agreement against payment of the consideration set forth therein, will be validly issued and fully paid and non-assessable and will conform to all statements relating thereto contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus and such statements conform to the rights set for in the instruments defining the same; no holder of the Shares will be subject to personal liability for the debts of Company by reason of being such a holder; and the issuance of the Shares is not subject to the preemptive rights, rights of first refusal or other similar rights of any securityholder of Company, except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus;
(vi) There are no authorized or outstanding options, warrants, preemptive rights, rights of first refusal or other rights to purchase, or equity or debt securities convertible into or exchangeable or exercisable for, any capital stock of Company or any of the Subsidiaries other than those described in the Registration Statement, the Pricing Disclosure Package and the Prospectus and all such options, warrants and rights have been duly waived in writing. The descriptions of Company’s stock option, stock bonus and other stock plans or arrangements, and the options or other rights granted thereunder, set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus accurately and fairly present in all material respects the information required to be shown with respect to such plans, arrangements, options and rights;
(vii) The Underwriting Agreement has been duly authorized, executed and delivered by Company and Bank;
(viii) To such counsel’s knowledge after reasonable investigation, Company is not in violation of its Charter, or Bylaws; none of the Subsidiaries is in violation of its charter, bylaws or other organizational documents and neither Company nor any of its Subsidiaries is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which Company or any of its Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of Company or any Subsidiary is subject, or in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except for such violations or defaults that would not, singly or in the aggregate, result in a Material Adverse Effect;
(ix) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of any court or governmental agency or body is necessary or required for the performance by Company of its obligations under the Underwriting Agreement in connection with the offering, issuance or sale of the Shares or the consummation of the transactions contemplated in this Agreement prior to the Closing Date; except such as have been already obtained or as may be required under the Securities Act, the Securities Act Regulations, the rules of the NASDAQ, the securities laws of any state or non-U.S. jurisdiction or the rules of FINRA;
(x) The execution, delivery and performance of the Underwriting Agreement and the consummation of the transactions contemplated herein and therein, and in the Registration Statement (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares as described in the Prospectus under the caption “Use of Proceeds”) and compliance by Company with its obligations hereunder have been duly authorized by all necessary corporate actions and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of Company or any Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not, singly or in the aggregate, result in a Material Adverse Effect); nor will such action result in any violation of the provisions of the Charter or Bylaws of Company or the charter, bylaws or other organizational document of any Subsidiary; nor will such action result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over Company or any Subsidiary or any of their assets, properties or operations;
Exhibit C
(xi) Each of Company and each Subsidiary has good and marketable title to all real and personal property owned by it, in each case free and clear of all liens, encumbrances and defects except such as are described in the Registration Statement, the Pricing Disclosure Package and the Prospectus or such as do not materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by Company or any Subsidiary; and any real property and buildings held under lease by Company or any Subsidiary are held under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by Company or any Subsidiary;
(xii) There is no action, suit, proceeding, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to such counsel’s knowledge after reasonable investigation, threatened, against or affecting Company or any Subsidiary, which is required to be disclosed in the Registration Statement (other than as disclosed therein), or which, if determined adversely to Company or any Subsidiary, singly or in the aggregate, could result in a Material Adverse Effect, or which would materially and adversely affect the properties or assets thereof, nor to such counsel’s knowledge after reasonable investigation, is there any basis for any such action, suit, inquiry, proceeding or investigation;
(xiii) Company and Bank possess all Governmental Licenses issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct the businesses now operated by them; to such counsel’s knowledge after reasonable investigation, Company and Bank are in compliance with the terms and conditions of all such Governmental Licenses and all of the Governmental Licenses are valid and in full force and effect except where the failure to so comply could not, singly or in the aggregate, have a Material Adverse Effect and no event has occurred that allows, or after notice or lapse of time would allow, revocation or termination of any such Governmental License or result in any other material impairment of the rights of any such Governmental License; all of the Governmental Licenses are valid and in full force and effect;
(xiv) Company is not and, upon the issuance and sale of the Shares as contemplated in the Underwriting Agreement and the application of the net proceeds therefrom as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, will not be an “investment company”, or an entity “controlled” by an “investment company” as such terms are defined in the Investment Company Act of 1940;
(xv) The information in the Registration Statement, the Pricing Disclosure Package and the Prospectus under the captions “Business—Legal Proceedings”, “Business—Bank Premises”, “Supervision and Regulation”, “Certain Material U.S. Federal Income Tax Consequences For Non-U.S. Holders of Common Stock”, “Shares Eligible for Future Sale”, “Description of Our Capital Stock” and “Underwriting”, insofar as they purport to describe the provisions of the laws and regulations or documents referred to therein, are accurate, complete and fair in all material respects;
(xvi) The Registration Statement, including any Rule 462(b) Registration Statement, has been declared effective under the Securities Act; any required filing of the Prospectus pursuant to Rule 424(b) under the Securities Act has been made in the manner and within the time period required by Rule 424(b); all material required to be filed by Company pursuant to Rule 433(d) under the Securities Act has been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Securities Act; and to such counsel’s knowledge after reasonable investigation, no stop order suspending the effectiveness or use of the Registration Statement, any preliminary prospectus, the Pricing Prospectus, any Issuer Free Writing Prospectus or the Prospectus has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or threatened by the Commission;
Exhibit C
(xvii) To such counsel’s knowledge after reasonable investigation, there are no statutes or regulations that are required to be described in the Registration Statement, the Pricing Disclosure Package and the Prospectus that are not described as required;
(xviii) The Registration Statement, the Pricing Disclosure Package and the Prospectus and any further amendments and supplements thereto made by Company prior to such Closing Date or Option Closing Date, as the case may be (other than the financial statements, related schedules and other financial data therein, as to which such counsel need express no opinion), comply as to form in all material respects with the requirements of the Securities Act and the Securities Act Regulations; and such counsel does not know of any amendment to the Registration Statement, the Pricing Disclosure Package or the Prospectus required to be filed or of any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be described in the Registration Statement, the Pricing Disclosure Package and the Prospectus which are not filed or described as required;
In addition, such counsel shall state that, although they are not passing upon and do not assume any responsibility for nor have they independently verified, the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus, except to the extent set forth in opinions (v) and (xvii) above, in connection with the preparation of the Registration Statement, the Pricing Disclosure Package and the Prospectus, such counsel has participated in conferences with Representative and counsel of Representative and with certain officers and employees of, and counsel and independent certified public accountants for, Company, at which conferences the contents of the Registration Statement, the Pricing Disclosure Package and the Prospectus and related matters were discussed, and such counsel advises Representative that nothing has come to such counsel’s attention that would lead such counsel to believe that, as of its effective date, the Registration Statement or any further amendment thereto made by Company prior to such Closing Date or Option Closing Date, as the case may be (other than the financial statements, related schedules and other financial data therein, as to which such counsel need express no opinion), contained an untrue statement of a material fact required to be stated therein or necessary to make the statements therein not misleading and that, as of its date, the Prospectus or any further amendment or supplement thereto made by Company prior to such Closing Date or Option Closing Date, as the case may be (other than the financial statements, related schedules and other financial data therein, as to which such counsel need express no opinion) contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and that, as of the Applicable Time, the Pricing Disclosure Package or any further amendment or supplement thereto (other than the financial statements, related schedules and other financial data therein, as to which such counsel need express no opinion) contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Exhibit C
In rendering such opinion, such counsel may rely as to matters of fact (but not as to legal conclusions), to the extent they deem proper on certificates of responsible officers of Company and public officials.
Exhibit C