“Issuer General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is intended for general distribution to prospective investors (other than a “真实 electronic road show,” as defined in Rule 433), as evidenced by its being specified in Schedule b-2 hereto.
“Issuer Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not an Issuer General Use Free Writing Prospectus.
All references in this Agreement to financial statements and schedules and other information which is “contained,” “included” or “stated” (or other references of like import) in the Registration Statement, any preliminary prospectus, the General Disclosure Package or the Prospectus shall be deemed to include all such financial statements and schedules and other information incorporated or deemed incorporated by reference in the Registration Statement, any preliminary prospectus, the General Disclosure Package or the Prospectus, as the case may be, prior to the execution and delivery of this Agreement; and all references in this Agreement to amendments or supplements to the Registration Statement, any preliminary prospectus or the Prospectus shall be deemed to include the filing of any
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document under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (collectively, the “1934 Act”), incorporated or deemed to be incorporated by reference in the Registration Statement, such preliminary prospectus or the Prospectus, as the case may be, at or after the execution and delivery of this Agreement.
(ii) 准确披露注册声明及其任何修正案,在其生效时、于本日、在交割时或在任何交付日期中,均未包含、当前不包含或将不包含任何虚假的重大事实陈述,亦未遗漏、当前未遗漏或将不遗漏任何需要在其中陈述的重大事实,或者是使其中的陈述不具有误导性的必要事实。在适用时和任何交付日期,既不(A)一般披露包或(B)任何个别发行人限制使用的自由写作招股说明书,在与一般披露包一起考虑时,包括、当前包括或将包括任何虚假的重大事实陈述,亦未遗漏、当前未遗漏或将不遗漏任何重大事实。
(vii) 营业没有重大不利变化. Except as otherwise stated therein, since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus, (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, the Bank and their respective subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”), (B) there have been no transactions entered into by the Company, the Bank or any of their respective subsidiaries, other than those in the ordinary course of business, which are material with respect to the Company, the Bank and their respective subsidiaries considered as one enterprise, and (C) except for regular 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.
(viii) Good Standing of the Company; Bank Holding and Financial Holding Company Status of the Company. The Company has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Rhode Island and has all requisite corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement; and 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
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standing would not result in a Material Adverse Effect. The Company is duly registered as a bank holding company and is qualified as a financial holding company, in each case as such terms are interpreted under the Bank Holding Company Act of 1956, as amended (the “BHCA”), and has elected to become a financial holding company under regulations of the Board of Governors of the Federal Reserve System (the “Federal Reserve Board”). The Company is not aware of any circumstances that would preclude the Company from exercising the authorities available to a financial holding company under the BHCA and regulations of the Federal Reserve Board.
pursuant to, the Agreements and Instruments, nor will such action result in any violation of the provisions of the charter, by-laws or similar organizational document of the Company, the Bank or any of their respective subsidiaries or any law, statute, rule, regulation, judgment, order, writ or decree of any Governmental Entity. 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, the Bank or any of their respective subsidiaries.
(xix) 缺乏劳动争议. No labor dispute with the employees of the Company, the Bank or any of their respective subsidiaries exists or, to the knowledge of the Company and the Bank, is imminent, and neither the Company nor the Bank is aware of any existing or imminent labor disturbance by the employees of any of its or any subsidiary’s principal suppliers, manufacturers, customers or contractors, which, in either case, would result in a Material Adverse Effect.
(xx) 程序缺失. Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, there is no action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity now pending or, to the knowledge of the Company and the Bank, threatened, against or affecting the Company, the Bank or any of their respective subsidiaries, which might result in a Material Adverse Effect, or which might materially and adversely affect their respective properties, assets or operations or the consummation of the transactions contemplated in this Agreement or the performance by the Company and the Bank of their obligations hereunder; and the aggregate of all pending legal or governmental proceedings to which the Company, the Bank or any such subsidiary is a party or of which any of their respective properties, assets or operations is the subject which are not described in the Registration Statement, the General Disclosure Package and the Prospectus, including ordinary routine litigation incidental to the business, could not result in a Material Adverse Effect.
(xxix) Payment of Taxes根据法律要求,公司、银行及其子公司已提交所有美国联邦所得税申报表,并已支付所有由这些申报表显示或以其他方式评估出的到期应付税款,除非对此类评估已提出上诉并会迅速采取行动,并且已提供足够的准备金。公司截至2023年12月31日的财政年度的美国联邦所得税申报表已经结算,并且未对此公司作出任何评估。公司、银行及其子公司已提交所有其他根据适用的外国、州、地方或其他法律要求提交的税务申报表,除非未提交这些申报表单独或合计不会导致重大不利影响,并已支付所有根据这些申报表或公司、银行及其子公司收到的任何评估应付的税款,除非有任何正在善意争议且公司已建立足够准备金的税款。公司账簿上关于任何未决年的所得及公司税负债的费用、应计和准备金足以应对未最终确定的任何年度的额外所得税评估或重新评估,除了不导致重大不利影响的任何不足之处。
(xxx) 保险. The Company, the Bank and their respective subsidiaries carry or are entitled to the benefits of insurance, with financially sound and reputable insurers, in such amounts and covering such risks as is generally maintained by companies of established repute engaged in the same or similar business, and all such insurance is in full force and effect. Neither the Company nor the Bank has reason to believe that it or any of its respective subsidiaries will not be able (A) to renew its existing insurance coverage as and when such policies expire or (B) to obtain comparable coverage from similar institutions as may be necessary or appropriate to conduct its business as now conducted and at a cost that would not, singly or in the aggregate, result in a Material Adverse Effect. Neither the Company, nor the Bank, nor any of their respective subsidiaries has been denied any insurance coverage which it has sought or for which it has applied.
(xxxi) 投资公司法. The Company is not required, and upon the issuance and sale of the Securities as herein contemplated and the application of the net proceeds therefrom as described in the Registration Statement, the General Disclosure Package and the Prospectus will not be required, to register as an “investment company” under the Investment Company Act of 1940, as amended.
(xxxii) 没有操纵. Neither the Company, nor the Bank, nor any affiliate of the Company or the Bank has taken, nor will the Company, the Bank or any affiliate take, directly or indirectly, any action which is designed, or would be expected, to cause or result in, or which constitutes, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities or to result in a violation of Regulation m under the 1934 Act.
(xxxiii) 《外国反腐败法》. None of the Company, the Bank, any of their respective subsidiaries or, to the knowledge of the Company and the Bank, any director, officer, agent, employee, affiliate or other person acting on behalf of the Company, the Bank or any of their respective subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), including, without limitation, making use
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of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and the Company, the Bank and their affiliates, to the knowledge of the Company and the Bank, have conducted their businesses in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(xxxiv) 洗钱法. The operations of the Company, the Bank and their respective subsidiaries are and have been conducted at all times in compliance with all applicable financial recordkeeping and reporting requirements, including those of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any Governmental Entity (collectively, the “Money Laundering Laws”); and no action, suit or proceeding by or before any Governmental Entity involving the Company, the Bank or any of their respective subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company and the Bank, threatened.
(xxxv) OFAC. None of the Company, the Bank, any of their respective subsidiaries or, to the knowledge of the Company and the Bank, any director, officer, agent, employee, affiliate or representative of the Company, the Bank or any of their respective subsidiaries is an individual or entity (“Person”) currently the subject or target of any sanctions administered or enforced by the United States Government, including, without limitation, the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), the United Nations Security Council (“UNSC”), the European Union, His Majesty’s Treasury (“HMT”), or other relevant sanctions authority (collectively, “Sanctions”), nor is the Company or the Bank located, organized or resident in a country or territory that is the subject or target of Sanctions; and the Company will not directly or indirectly use the proceeds of the sale of the Securities, or lend, contribute or otherwise make available such proceeds to any subsidiaries, joint venture partners or other Person, to fund any activities of or business with any Person, or in any country or territory, that, at the time of such funding, is the subject or target of Sanctions or in any other manner that will result in a violation by any Person (including any Person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions. For the past five years, the Company, the Bank and their respective subsidiaries have not knowingly engaged in and are not now knowingly engaged in any dealings or transactions with any Person, or with any country or territory, that at the time of the dealing or transaction is or was the subject or target of Sanctions.
(xxxix) 分红派息禁止. Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, no subsidiary of the Company or the Bank is currently prohibited, directly or indirectly, under any order of any Regulatory Authority (other than orders applicable to bank holding companies and their subsidiaries generally), under any applicable law (other than banking laws generally limiting the amount that may be paid by banks), or under any agreement or other instrument to which it is a party or is subject, from paying any dividends to the Company or the Bank, from making any other distribution on such subsidiary’s capital stock or other equity interests, from repaying to the Company, the Bank or any other subsidiary of the Company or the Bank any loans or advances to such subsidiary or from transferring any of such subsidiary’s properties, assets or operations to the Company, the Bank or any of their respective subsidiaries.
(xl) Not a U.S. Real Property Holding Corporation. The Company is not, and has not been, a U.S. real property holding corporation within the meaning of Section 897 of the Internal Revenue Code of 1986, as amended.
(xli) Fair Saleable Value of Assets. Each of the Company, the Bank and their respective subsidiaries owns and, after giving effect to the transactions contemplated in this Agreement, will own assets the fair saleable value of which are greater than (A) the total amount of its liabilities (including known contingent liabilities) and (B) the amount that will be required to pay the probable liabilities of its existing debts as they become absolute and matured considering the financing alternatives reasonably available to it. Neither the Company nor the Bank has knowledge of any facts or circumstances which lead it to believe that it or any of its respective subsidiaries will be required to file for reorganization or liquidation under the bankruptcy or reorganization laws of any jurisdiction, and has no present intent to so file.
(xlii) Affiliated Transactions or Relationships公司、银行或其各自的子公司与其关联方、管理人员或董事之间不存在任何交易或关系,且无须在注册声明、任何初步招股说明书或招股说明书中描述的内容中进行描述。
(i)证券销售限制. During a period of 90 days from the date of the Prospectus, the Company will not, without the prior written consent of the Underwriter, (i) directly or indirectly, 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 to purchase or otherwise transfer or dispose of any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or file any registration statement under the 1933 Act with respect to any of the foregoing or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Stock, whether any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the Securities to be sold hereunder, (B) any shares of Common Stock issued by the Company upon the exercise of an option or warrant or the conversion of a security outstanding on the date hereof and referred to in the Registration Statement, the General Disclosure Package and the Prospectus, (C) any shares of Common Stock issued or options to purchase Common Stock granted pursuant to existing employee benefit plans of the Company referred to in the Registration Statement, the General Disclosure Package and the Prospectus or (D) any shares of Common Stock issued pursuant to any non-employee director stock plan or dividend reinvestment plan referred to in the Registration Statement, the General Disclosure Package and the Prospectus.
(j)报告要求. The Company, during the period when a Prospectus relating to the Securities is (or, but for the exception afforded by Rule 172, would be) required to be delivered under the 1933 Act, will file all documents required to be filed with the Commission pursuant to the 1934 Act within the time periods required by the 1934 Act and 1934 Act Regulations.
(ii) 对由任何诉讼的和解所支付的总金额的范围内,承担所有损失、责任、索赔、损害和费用的赔偿责任,无论发生什么,包括任何政府机构或机构开始或威胁的调查或程序,或基于任何此类不真实的陈述或遗漏或任何此类被指控的不真实陈述或遗漏的任何索赔; 前提是(根据下面的第6(d)节)任何此类和解必须获得公司的书面同意;
第16节 同意管辖权;放弃豁免权与本协议或其所涉及的交易相关的任何法律诉讼、行动或程序均应在以下地点提起:(i) 位于纽约市和县、曼哈顿区的美国联邦法院,或 (ii) 位于纽约市和县、曼哈顿区的纽约州法院(统称为“指定法院”),每一方不可撤回地提交于该等法院的专属管辖权(除了针对任何此类法院判决执行所提起的程序,其管辖权为非独占),在任何此类诉讼、行动或程序中。通过邮寄送达至上述各方地址的任何诉状、传票、通知或文档均视为在任何此类法院提起的诉讼、行动或其他程序的有效送达。各方不可撤回且无条件地放弃对在指定法院提起的任何诉讼、行动或其他程序的地点提出异议,并不可撤回且无条件地放弃并同意不在任何此类法院主张或声称在任何此类法院提起的任何诉讼、行动或其他程序已在不便利的法庭进行。
第17条。时间时间为本协议的核心内容。除非本协议另有规定,否则指定的时间均指纽约市时间。
第18条。副本和电子签名本协议可以以任意数量的副本签署,每一份均视为原件,但所有这些副本共同构成同一份协议。符合纽约电子签名和记录法(N.Y. State Tech. §§ 301-309)及不时修订的其他相关法律的电子签名,将视为本协议的原始签名。通过传真、电子邮件或其他传输方式传送的已签署的本协议的副本将构成对该副本的妥善且充分的交付。