BERKSHIRE HILLS BANCORP,
INC.
(a Delaware corporation)
1,400,000 Shares of Common Stock
($0.01 Par Value Per Share)
Sandler
O’Neill & Partners, L.P.
as Representative of the several Underwriters
919 Third Avenue, 6 th Floor
New York, NY 10022
Berkshire Hills
Bancorp, Inc., a Delaware corporation (the “Company”),
confirms its agreement with Sandler O’Neill & Partners,
L.P. (“Sandler O’Neill” or an
“Underwriter”) and each of the other underwriters named
in Schedule A hereto (collectively, the
“Underwriters,” which term shall also include any
underwriter substituted as hereinafter provided in Section 10
hereof), for whom Sandler O’Neill is acting as representative
(in such capacity, the “Representative”) with respect
to (i) the sale by the Company, and the purchase by the
Underwriters, acting severally and not jointly, of the number of
shares of Common Stock, $0.01 par value per share, of the Company
(“Common Stock”) set forth in Schedule A
hereto and (ii) the grant by the Company to the Underwriters,
acting severally and not jointly, of the option described in
Section 2(b) hereof to purchase all or any part of 210,000
additional shares of Common Stock to cover over-allotments, if any.
The aforesaid 1,400,000 shares of Common Stock (the “Initial
Securities”) to be purchased by the Underwriters and all or
any part of the 210,000 shares of Common Stock subject to the
option described in Section 2(b) hereof (the “Option
Securities”) are hereinafter called, collectively, the
“Securities.”
The Company
understands that the Underwriters propose to make a public offering
of the Securities as soon as the Underwriters deem advisable after
this Agreement has been executed and delivered.
The Company has
filed with the Securities and Exchange Commission (the
“Commission”) a registration statement on Form S-3
(No. 333-137246), including the related base prospectus
covering the registration of the Securities under the Securities
Act of 1933, as amended (the “1933 Act”). Promptly
after execution and delivery of this Agreement, the Company will
prepare and file a prospectus in accordance with the provisions of
Rule 430A (“Rule 430A”) of the rules and
regulations of the Commission under the 1933 Act (the “1933
Act Regulations”) and paragraph (b) of Rule 424
(“Rule 424(b)”) of the 1933 Act Regulations. The
information included in such prospectus that was omitted from such
registration statement at the time it became effective but that is
deemed to be part of such registration statement at the time it
became effective pursuant to
paragraph
(a) of Rule 430A is referred to as “Rule 430A
Information.” The registration statement referred to above,
including exhibits and financial statements and any prospectus
supplement relating to the Securities that is filed with the
Commission pursuant to Rule 424(b) and deemed part of such
registration statement pursuant to Rule 430A, as amended on
each date and time that the Registration Statement, any
post-effective amendment or amendments thereto and any Rule 462(b)
Registration Statement became or becomes effective (the
“Effective Date”) and, in the event of any
post-effective amendment thereto shall be referred to as the
“Registration Statement.” Any registration statement
filed pursuant to Rule 462(b) of the 1933 Act Regulations is herein
referred to as the “Rule 462(b) Registration
Statement,” and after such filing the term
“Registration Statement” shall include the Rule 462(b)
Registration Statement. The base prospectus referred to above and
included in the Registration Statement at the Effective Time shall
be referred to as the “Base Prospectus.” The prospectus
supplement relating to the Securities that was first filed pursuant
to Rule 424(b) after the Applicable Time (as defined below),
together with the Base Prospectus, shall be referred to as the
“Final Prospectus.” Any preliminary prospectus
supplement to the Base Prospectus which is used prior to the filing
of the Final Prospectus, together with the Base Prospectus, shall
be referred to as a “Preliminary Prospectus.” For
purposes of this Agreement, all references to the Registration
Statement, the Base Prospectus, any Preliminary Prospectus, the
Final 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 (“EDGAR”).
All references in
this Agreement to financial statements and schedules and other
information which is “contained,”
“included” or “stated” in the Registration
Statement, the Base Prospectus, any Preliminary Prospectus or the
Final Prospectus (or other references of like import) shall be
deemed to mean and include all such financial statements and
schedules and other information which is incorporated by reference
in the Registration Statement, the Base Prospectus, any Preliminary
Prospectus or the Final Prospectus, as the case may be; and all
references in this Agreement to amendments or supplements to the
Registration Statement, the Base Prospectus, any Preliminary
Prospectus or the Final Prospectus shall be deemed to mean and
include the filing of any document under the Securities Exchange
Act of 1934 (the “1934 Act”) which is incorporated by
reference in the Registration Statement, the Base Prospectus, such
Preliminary Prospectus or the Final Prospectus, as the case may be.
All references to the Registration Statement, the Base Prospectus,
any Preliminary Prospectus or the Final Prospectus shall be deemed
to include the information incorporated by reference in each such
document.
SECTION 1.
Representations and Warranties and Agreements .
(a)
Representations and Warranties by the Company. The Company
represents and warrants to the Underwriters as of the date hereof,
as of the Closing Time referred to in Section 2(c) hereof, and as
of each Date of Delivery (if any) referred to in Section 2(b)
hereof, and agrees with the Underwriters, as follows:
(i)
Compliance with Registration Requirements . (i) At the
earliest time after the filing of the Registration Statement that
the Company or another offering participant made a bona fide offer
(within the meaning of Rule 164(h)(2)) of the Securities and
(ii) as of the Applicable Time (with such date being used as
the determination date for purposes of this clause (ii)),
the
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Company was not
and is not an Ineligible Issuer (as defined in Rule 405),
without taking account of any determination by the Commission
pursuant to Rule 405 that it is not necessary that the Company
be considered an Ineligible Issuer.
The Company meets
the requirements for use of Form S-3 including a related Base
Prospectus, for registration under the 1933 Act of the offering and
sale of the Securities. Each of the Registration Statement and any
Rule 462(b) Registration Statement, if any, has become effective
under the 1933 Act and no stop order suspending the effectiveness
of the Registration Statement and any post-effective amendment
thereto or any Rule 462(b) Registration Statement and any
post-effective amendment thereto has been issued under the 1933 Act
and no proceedings for that purpose have been instituted or are
pending or, to the knowledge of the Company, are contemplated by
the Commission nor any state or other jurisdiction or regulatory
body, and any request on the part of the Commission, any state or
other jurisdiction or other regulatory body for additional
information has been complied with.
The Company may
have filed with the Commission, as part of an amendment to the
Registration Statement or pursuant to Rule 424(b), one or more
preliminary prospectus supplements relating to the Securities, each
of which has previously been furnished to you. The Company will
file with the Commission a final prospectus supplement relating to
the Securities in accordance with Rule 424(b). As filed, such
final prospectus supplement when taken together with the documents
incorporated by reference therein shall contain all information
required by the 1933 Act and the rules thereunder, and, except to
the extent the Underwriters shall agree in writing to a
modification, shall be in all substantive respects in the form
furnished to you prior to the Applicable Time or, to the extent not
completed at the Applicable Time, shall contain only such specific
additional information and other changes (beyond that contained in
the Base Prospectus and any Preliminary Prospectus) as the Company
has advised you, prior to the Applicable Time, will be included or
made therein. The Registration Statement, at the Applicable Time,
meets the requirements set forth in
Rule 415(a)(1)(x).
On each Effective
Date, the Registration Statement did, and when the Final Prospectus
is first filed in accordance with Rule 424(b) and as of the Closing
Time (as defined herein) and on any date on which Option Securities
are purchased, if such date is not as of the date of the Closing
Time at the Date of Delivery, the Final Prospectus (and any
supplement thereto) will, comply in all material respects with the
applicable requirements of the 1933 Act and the 1934 Act and the
respective rules thereunder; on each Effective Date and at the
Applicable Time, the Registration Statement did not and will not
contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and on the
date of any filing pursuant to Rule 424(b) and as of the Closing
Time and any Date of Delivery, the Final Prospectus (together with
any supplement thereto) will not include any 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. Each Preliminary
Prospectus and the Final Prospectus delivered to the Underwriters
for use in connection with this offering was identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
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The General
Disclosure Package does not contain any untrue statement of a
material fact and has not omitted to state any material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not
misleading.
As used in this
subsection and elsewhere in this Agreement:
“Applicable
Time” means 8:30 a.m. (Eastern time) on May 12,
2009.
“General
Disclosure Package” means (i) the Preliminary
Prospectus, if any, used most recently prior to the Applicable
Time, (ii) the Issuer-Represented Free Writing Prospectuses,
if any, identified in Schedule B hereto, (iii) the
information listed on Schedule C hereto, and (iv) any
other Free Writing Prospectus that the parties hereto shall
hereafter expressly agree in writing to treat as part of the
General Disclosure Package.
“Issuer-Represented
Free Writing Prospectus” means any “issuer free writing
prospectus,” as defined in Rule 433 of the 1933 Act
Regulations (“Rule 433”), relating to the
Securities that (i) is required to be filed with the Commission by
the Company or (ii) is exempt from filing pursuant to
Rule 433(d)(5)(i) because it contains a description of the
Securities or of the offering that does not reflect the final
terms, in each case in the form filed or required to be filed with
the Commission or, if not required to be filed, in the form
retained in the Company’s records pursuant to
Rule 433(g).
Each
Issuer-Represented Free Writing Prospectus, when considered
together with the General Disclosure Package as of the Applicable
Time, did not contain any untrue statement of material fact or omit
to state a material fact necessary to make the statements therein,
in light of the circumstances in which they were made, not
misleading and, did not, does not and will not include any
information that conflicted, conflicts or will conflict with the
information contained in the Registration Statement or the Final
Prospectus, including any document incorporated by reference
therein and any preliminary or other prospectus deemed to be a part
thereof that, in each case, has not been superseded or
modified.
The
representations and warranties in this subsection shall not apply
to statements in or omissions from the Registration Statement, any
Preliminary Prospectus, the Final Prospectus or any
Issuer-Represented Free Writing Prospectus made in reliance upon
and in conformity with written information furnished to the Company
by the Underwriters expressly for use therein.
(ii)
Incorporated Documents . The documents incorporated or
deemed to be incorporated by reference in the Registration
Statement and the Final Prospectus, 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 1934 Act and
the rules and regulations of the Commission thereunder (the
“1934 Act Regulations”), and did not and will not
contain an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not
misleading.
(iii)
Independent Accountants . Wolf and Company, P.C., the
independent registered public accounting firm that certified the
financial statements and supporting schedules of the Company
included in or incorporated by reference into the Registration
Statement and the Final
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Prospectus is
an independent registered public accounting firm as required by the
1933 Act and the 1933 Act Regulations. With respect to the Company,
to the Company’s knowledge, Wolf and Company, P.C. has not
been in violation of the auditor independence requirements of the
Sarbanes-Oxley Act of 2002 (“Sarbanes-Oxley Act”) and
the related rules and regulations of the Commission.
(iv)
Financial Statements . The financial statements, audited and
unaudited (including all notes and schedules thereto) included in
or incorporated by reference into the Registration Statement, the
General Disclosure Package and the Final Prospectus, together with
the related schedules and notes, present fairly the financial
position of the Company and its consolidated subsidiaries at the
dates indicated and for the periods specified. Such financial
statements (including all notes and schedules thereto) have been
prepared in conformity with generally accepted accounting
principles (“GAAP”) applied on a consistent basis
throughout the periods involved. The supporting schedules, if any,
included in or incorporated by reference into the Registration
Statement, the General Disclosure Package and the Final Prospectus
present fairly in accordance with GAAP the information required to
be stated therein. The selected financial data and the summary
financial information included under the headings “Summary
Historical Financial Information” and “Recent
Developments” included in the Registration Statement, the
General Disclosure Package and the Final Prospectus present fairly
the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included
in or incorporated by reference into the Registration Statement and
the books and records of the Company. No other financial statements
or schedules are required to be included in the Registration
Statement. To the extent applicable, all disclosures contained in
the Registration Statement or the Final Prospectus regarding
“non-GAAP financial measures” (as such term is defined
by the rules and regulations of the Commission) comply with
Regulation G of the 1934 Act, the 1934 Act Regulations and
Item 10 of Regulation S-K under the 1933 Act, as
applicable.
(v)
No Material Adverse Change in Business . Since the
respective dates as of which information is given in the
Registration Statement, the General Disclosure Package and the
Final Prospectus, except as otherwise stated therein,
(A) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the
ordinary course of business and there has been no effect with
respect to the Company and its subsidiaries considered as one
enterprise, which would prevent, or be reasonably likely to
prevent, the Company from consummating the transaction contemplated
by this Agreement (a “Material Adverse Effect”),
(B) there have been no transactions entered into by the
Company or any of its subsidiaries, other than those in the
ordinary course of business, which are material with respect to the
Company and its subsidiaries considered as one enterprise, and
(C) except for quarterly dividends on the Common Stock in
amounts per share that are consistent with past practice, there has
been no dividend or distribution of any kind declared, paid or made
by the Company on any class of its capital stock.
(vi)
Good Standing of the Company . The Company is a registered
savings and loan holding company under the Home Owners’ Loan
Act, as amended (the “HOLA”), with respect to Berkshire
Bank (the “Berkshire Bank”) and Berkshire Bank
Municipal Bank (the “Municipal Bank”, together with
Berkshire Bank, the “Banks”) and has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware and has the power and
authority (corporate and otherwise) to own, lease and operate its
properties, to conduct its
5
business as
described in the Registration Statement, the General Disclosure
Package and the Final Prospectus and to enter into and perform its
obligations under this Agreement. The 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 so to qualify or to
be in good standing would not reasonably be expected to result in a
Material Adverse Effect.
(vii)
Good Standing of Subsidiaries . Each “significant
subsidiary” of the Company (as such term is defined in
Rule 1-02 of Regulation S-X) (each a
“Subsidiary” and, collectively, the
“Subsidiaries”) has been duly organized and is validly
existing as a corporation, limited liability company, limited
partnership, trust company, statutory business trust or bank in
good standing under the laws of its respective jurisdiction of
incorporation or organization with the power and authority
(corporate and otherwise) to own, lease and operate its properties
and to conduct its business as described in the General Disclosure
Package and the Final Prospectus and is duly qualified as a foreign
organization 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 so to qualify or to be in good
standing would not result in a Material Adverse Effect. Except as
otherwise disclosed in the General Disclosure Package and Final
Prospectus, all of the issued and outstanding capital stock or
other equity interests of each such Subsidiary that is a
corporation has been duly authorized and validly issued, is fully
paid and non-assessable. All of the issued and outstanding shares
of capital stock or other equity interests of each such Subsidiary
have been duly authorized and validly issued, are fully paid and
non-assessable and are owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim of equity; none of the outstanding
shares of capital stock or other equity interest of any Subsidiary
was issued in violation of the preemptive or similar rights of any
securityholder or equity holder of such Subsidiary. The only
Subsidiaries of the Company are the Subsidiaries listed on
Schedule D hereto.
(viii)
Capitalization . The authorized, issued and outstanding
capital stock of the Company is as set forth in the General
Disclosure Package and the Final Prospectus in the column entitled
“Actual” under the caption “Capitalization”
(except for subsequent issuances, if any, pursuant to this
Agreement, pursuant to reservations, agreements or employee benefit
plans referred to in the Final Prospectus, pursuant to the exercise
of convertible securities or options referred to in the Final
Prospectus, pursuant to the acquisition of CNB Financial Corp. or
pursuant to warrants issued to the U.S. Department of the Treasury
in connection with the TARP Capital Purchase Program). All of the
shares of the Company’s issued and outstanding capital stock
have been duly authorized and validly issued and are fully paid and
non-assessable, and none of the outstanding shares of capital stock
were issued in violation of the preemptive or other similar rights
of any securityholder of the Company.
(ix)
Authorization of Agreement . This Agreement has been duly
authorized, executed and delivered by the Company and, when duly
executed by the Underwriters, will constitute the valid and binding
agreement of the Company enforceable against the Company in
accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting creditors’ rights
generally or by general equitable principles and except as any
indemnification or contribution provisions thereof
6
may be limited
under applicable securities laws. The issue and sale of the
Securities by the Company and the performance by the Company of all
of its obligations under this Agreement and the consummation of the
transactions contemplated herein and in the Final Prospectus
(including the use of the proceeds from the sale of the Securities
as described in the Final Prospectus under the caption “Use
of Proceeds”) and compliance by the Company with its
obligations hereunder have been duly authorized by all necessary
corporate action 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 (as defined
below) under, (i) any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which the Company or any
of its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject,
(ii) the provisions of the certificate of incorporation or
bylaws of the Company or (iii) any statute or any order, rule
or regulation of any federal, state or local court or governmental
agency (each a “Governmental Entity”) or body having
jurisdiction over the Company or any of its subsidiaries or any of
their properties except, with respect to clauses (i) and
(iii), for those conflicts, breaches, violations, defaults or
Repayment Events that would not result in a Material Adverse
Effect. No consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or
body is required for the issue and sale of the Securities, the
performance by the Company of its obligations hereunder or the
consummation by the Company of the transactions contemplated by
this Agreement, except (i) the registration under the 1933 Act
of the Securities, (ii) as may be required under the rules and
regulations of the Nasdaq Global Select Market and the Financial
Industry Regulatory Authority (“FINRA”),
(iii) such consents, approvals, authorizations, registrations
or qualifications as may be required under state or foreign
securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters or (iv) where
the failure to obtain such consent, authorization, order or
qualification would not have a Material Adverse Effect. As used
herein, a “Repayment Event” means any event or
condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such
holder’s behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by
the Company or any subsidiary.
(x)
Authorization and Description of Securities . The Securities
to be purchased by the Underwriters from the Company have been duly
authorized for issuance and sale by the Company to the Underwriters
pursuant to this Agreement and, when issued and delivered by the
Company pursuant to this Agreement against payment of the
consideration set forth herein, will be validly issued and fully
paid and non-assessable; the Common Stock conforms in all material
respects to all statements relating thereto contained in the Final
Prospectus and such description conforms in all material respects
to the rights set forth in the instruments defining the same; no
holder of the Securities will be subject to personal liability for
the debts of the Company by reason of being such a holder; and the
issuance of the Securities is not subject to the preemptive or
other similar rights of any securityholder of the Company. Except
as described in the Final Prospectus and the General Disclosure
Package, (A) there are no outstanding rights (contractual or
statutory), warrants or options to acquire from the Company, or
instruments convertible into or exchangeable for, or agreements or
understandings with respect to the sale or issuance by the Company
of, any shares of capital stock of or other equity interest in the
Company, and (B) there are no contracts, agreements or
understandings between the Company and any person granting such
person the right
7
to require the
Company to file a Registration Statement under the 1933 Act or
otherwise register any securities of the Company owned or to be
owned by such person.
(xi)
Absence of Defaults and Conflicts . Except as described in
the General Disclosure Package and the Final Prospectus, neither
the Company nor any of its Subsidiaries is in violation of its
certificate of incorporation or bylaws or 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 the 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 the Company or any Subsidiary is
subject (collectively, “Agreements and Instruments”)
except for such defaults that would not result in a Material
Adverse Effect.
(xii)
Absence of Labor Dispute . No labor dispute with the
employees of the Company or any subsidiary exists or, to the
knowledge of the Company, is imminent, which, in any case, may
reasonably be expected to result in a Material Adverse
Effect.
(xiii)
Absence of Proceedings . 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 the knowledge of the Company, threatened, against or
affecting the Company or any subsidiary, which is required to be
disclosed in the Registration Statement (other than as disclosed
therein), or which might reasonably be expected to result in a
Material Adverse Effect; the aggregate of all pending legal or
governmental proceedings to which the Company or any subsidiary is
a party or of which any of their respective property or assets is
the subject which are not described in the Registration Statement,
including ordinary routine litigation incidental to the business,
could not reasonably be expected to result in a Material Adverse
Effect.
(xiv)
Compliance with Statutes and Regulations . Except as
disclosed in the Final Prospectus and the General Disclosure
Package, the Company and its subsidiaries conduct their respective
businesses in compliance in all material respects with all federal,
state, and local statutes, laws, rules, regulations, decisions,
directives and orders applicable to them, and neither the Company
nor any of its subsidiaries has received any written or, to the
Company’s knowledge, oral communication from any Governmental
Entity asserting that the Company or any of its subsidiaries is not
in compliance with any statute, law, rule, regulation, decision,
directive or order.
(xv)
Anti-Money Laundering . Except as disclosed in the Final
Prospectus and the General Disclosure Package, the operations of
the Company and its subsidiaries are and have been conducted at all
times in compliance in all material respects with applicable
financial recordkeeping and reporting requirements of the Currency
and Foreign Transactions Reporting Act of 1970, as amended, money
laundering statutes applicable to the Company and its subsidiaries,
the rules and regulations thereunder and any related or similar
rules, regulations or guidelines, issued, administered or enforced
by any governmental agency (collectively, the “Money
Laundering Laws”).
(xvi)
Accuracy of Exhibits . There are no contracts or documents
which are required to be described in the Registration Statement,
the General Disclosure Package, the Final
8
Prospectus or
the documents incorporated by reference therein or to be filed as
exhibits thereto which have not been so described and filed as
required.
(xvii)
Possession of Intellectual Property . The Company and its
subsidiaries own or possess rights to use, or can acquire on
reasonable terms ownership of or rights to use, adequate patents,
patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures and
excluding generally commercially available “off the
shelf” software programs licensed pursuant to shrink wrap or
“click and accept” licenses), trademarks, service
marks, trade names or other intellectual property (collectively,
“Intellectual Property”) necessary to carry on the
business now operated by them, and neither the Company nor any of
its subsidiaries has received any notice of any infringement of or
conflict with asserted rights of others with respect to any
Intellectual Property or of any facts or circumstances which would
render any Intellectual Property invalid or inadequate to protect
the interest of the Company or any of its subsidiaries therein, and
which infringement or conflict (if the subject of any unfavorable
decision, ruling or finding) or invalidity or inadequacy, singly or
in the aggregate, would result in a Material Adverse
Effect.
(xviii)
Possession of Licenses and Permits . The Company and its
subsidiaries possess such permits, licenses, approvals, consents
and other authorizations (collectively, “Governmental
Licenses”) issued by the appropriate federal, state or local
regulatory agencies or bodies necessary to conduct the business now
operated by them; the Company and its subsidiaries are in
compliance with the terms and conditions of all such Governmental
Licenses, except where the failure so to comply would not, singly
or in the aggregate, have a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect,
except where the invalidity of such Governmental Licenses or the
failure of such Governmental Licenses to be in full force and
effect would not have a Material Adverse Effect; and neither the
Company nor any of its subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would result
in a Material Adverse Effect. Neither the Company nor any of its
subsidiaries has failed to file with applicable regulatory
authorities any statement, report, information or form required by
any applicable law, regulation or order, except where the failure
to so file would not, individually or in the aggregate, have a
Material Adverse Effect, all such filings were in material
compliance with applicable laws when filed and, to the
Company’s knowledge, no material deficiencies have been
asserted by any regulatory commission, agency or authority with
respect to any such filings or submissions.
(xix)
No Regulatory Proceedings . Except as disclosed in the Final
Prospectus and the General Disclosure Package, neither the Company
nor any of its subsidiaries is a party to or subject to any order,
decree, agreement, memorandum or understanding or similar agreement
with, or a commitment letter, supervisory letter or similar
submission to, any Governmental Entity charged with the supervision
or regulation of depository institutions or engaged in the
insurance of deposits (including the FDIC) or the supervision or
regulation of it or any of its subsidiaries and neither the Company
nor any of its subsidiaries has been advised by any such
Governmental Entity that such Governmental Entity is contemplating
issuing or requesting (or is considering the appropriateness of
issuing or requesting) any such order, decree, agreement,
memorandum or understanding, commitment letter, supervisory letter
or similar submission.
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(xx)
Title to Property . The Company and its subsidiaries have
good and marketable title to all real property owned by the Company
and its subsidiaries and good title to all other properties owned
by them, in each case, free and clear of all mortgages, pledges,
liens, security interests, claims, restrictions or encumbrances of
any kind except such as (a) are described in the General
Disclosure Package and the Final Prospectus or (b) do not,
singly or in the aggregate, materially affect the value of such
property and do not interfere with the use made and proposed to be
made of such property by the Company or any of its subsidiaries;
and all of the leases and subleases material to the business of the
Company and its subsidiaries, considered as one enterprise, and
under which the Company or any of its subsidiaries holds properties
described in the General Disclosure Package and the Final
Prospectus, are in full force and effect, and neither the Company
nor any Subsidiary has any written, or to the Company’s
knowledge, oral notice of any material claim of any sort that has
been asserted by anyone adverse to the rights of the Company or any
subsidiary under any of the leases or subleases mentioned above, or
affecting or questioning the rights of the Company or such
Subsidiary to the continued possession of the leased or subleased
premises under any such lease or sublease.
(xxi)
Investment Company Act . The Company is not, and upon the
issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the
General Disclosure Package and the Final 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, as
amended (the “1940 Act”).
(xxii)
Environmental Laws . Except as described in the General
Disclosure Package and the Final Prospectus and except as would
not, singly or in the aggregate, result in a Material Adverse
Effect, (A) neither the Company nor any of its subsidiaries is
in violation in any material respect of any federal, state or local
statute, law, rule, regulation, ordinance, code, policy or rule of
common law or any judicial or administrative interpretation
thereof, including any judicial or administrative order, consent,
decree or judgment, relating to pollution or protection of human
health, the environment (including, without limitation, ambient
air, surface water, groundwater, land surface or subsurface strata)
or wildlife, including, without limitation, laws and regulations
relating to the release or threatened release of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous
substances, petroleum or petroleum products, asbestos-containing
materials or mold (collectively, “Hazardous Materials”)
or to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Hazardous Materials
(collectively, “Environmental Laws”), (B) the
Company and its subsidiaries have all material permits,
authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their
requirements, and (C) there are no material pending or
threatened administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any
Environmental Law against the Company or any of its
subsidiaries.
(xxiii)
Taxes . The Company and each of the subsidiaries has
(a) timely filed all material foreign, United States federal,
state and local tax returns, information returns, and similar
reports that are required to be filed (taking into account valid
extensions), and all tax returns are true, correct and complete,
(b) paid in full all taxes required to be paid by it and any
other fine or penalty levied against it, except for any such tax
assessment, fine or penalty that is currently being
contested
10
in good faith
or as would not have, individually or in the aggregate, a Material
Adverse Effect, and (c) established on the most recent balance
sheet reserves that are adequate for the payment of all taxes not
yet due and payable.
(xxiv)
Insurance . The Company and its subsidiaries carry, or are
covered by, insurance in such amounts and covering such risks as
the Company reasonably believes are adequate for the conduct of the
business of the Company and its subsidiaries and the value of their
properties and as are customary in the business in which the
Company and its subsidiaries are engaged; neither the Company nor
any of its subsidiaries has been refused any insurance coverage
sought or applied for; and the Company has no reason to believe
that they will not be able to renew their existing insurance
coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to continue its
business at a cost that would not have a Material Adverse
Effect.
(xxv)
Statistical and Market Data . The statistical and market
related data contained in the Final Prospectus and Registration
Statement are based on or derived from sources which the Company
believes are reliable and accurate.
(xxvi)
Relationship . No relationship, direct or indirect, exists
between or among the Company or any of its subsidiaries, on the one
hand, and the directors, officers, shareholders, customers or
suppliers of the Company or any of its subsidiaries, on the other,
that is required by the Securities Act or by the rules and
regulations of the Commission thereunder to be described in the
Registration Statement and/or the Final Prospectus and that is not
so described.
(xxvii)
Internal Control Over Financial Reporting . The Company and
each of its subsidiaries maintains a system of internal accounting
controls sufficient to provide reasonable assurance that
(A) transactions are executed in accordance with
management’s general or specific authorizations;
(B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset
accountability; (C) access to assets is permitted only in
accordance with management’s general or specific
authorization; and (D) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. Since
the end of the Company’s most recent audited fiscal year,
there has been (x) no material weakness in the Company’s
internal control over financial reporting (whether or not
remediated) and (y) no change in the Company’s internal
control over financial reporting that has materially affected, or
is reasonably likely to materially affect, the Company’s
internal control over financial reporting.
(xxviii)
Disclosure Controls and Procedures . The Company and its
subsidiaries employ disclosure controls and procedures (as such
term is defined in Rule 13a-15 under the 1934 Act), which
(A) are designed to ensure that information required to be
disclosed by the Company in the reports that it files or submits
under the 1934 Act is recorded, processed, summarized and reported
within the time periods specified in the Commission’s rules
and forms and that material information relating to the Company and
its subsidiaries is made known to the Company’s principal
executive officer and principal financial officer by others within
the Company and its subsidiaries to allow timely decisions
regarding disclosure, and (B) are effective in all material
respects to perform the functions for which they were established.
Based on the evaluation of the Company’s and each
subsidiary’s disclosure controls and procedures described
above, the Company is not aware of (x)
11
any significant
deficiency in the design or operation of internal controls which
could advers
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