Current through Register 1531, September 27, 2024
(1) Distribution
of preliminary subscription and direct community offering circulars will not be
permitted; such circulars must be in final form only. Any preliminary offering
circular or prospectus for a public offering of unsubscribed shares which has
been filed with the commissioner may be distributed in connection with such
offering. No such preliminary offering circular or prospectus shall be
distributed without the following legend printed in red on the cover thereof:
"This Offering Circular has been filed with the Commissioner of Banks of the
Commonwealth of Massachusetts, but has not been authorized for use in final
form. Information contained herein is subject to completion or amendment. The
securities covered hereby may not be sold nor may offers to buy be accepted
prior to the time the Offering Circular is declared effective by the
Commissioner of Banks of the Commonwealth of Massachusetts. This Offering
Circular shall not consitute an offer to sell or the solicitation of an offer
to buy, nor shall there be any sale of these securities in any jurisdiction in
which such offer, solicitation or sale would be unlawful prior to registration
or qualification under the securities laws of any such jurisdiction." In
addition, there will be printed on the cover of this preliminary public
offering circular in bold print "Preliminary Offering Circular" along with its
date of publication.
(2) Each final
prospect us or offering circular as well as any advertisement, order form or
instructions prepared by the converting bank and used by it to solicit and
effectuate an offer to purchase shares of capital stock in the subscription,
direct community and public offerings shall be submitted to the commissioner
for his approval. Each preliminary or final prospectus or offering circular
shall include a statement that the shares of capital stock are not subject to
deposit insurance. No final prospectus or offering circular may be distributed
unless approved and declared effective by the commissioner.
(3)
(a) In
considering the pricing information for the proposed stock issue, the
commissioner will apply the following guide lines :
1. The appraisal report shall be prepared by
persons independent of the applicant, experienced and expert in the area of
corporate appraisals, and acceptable to the commissioner;
2. The appraisal report shall contain data
that are sufficient to support the conclusions reached therein;
3. The appraisal report shall contain a
complete and detailed description of the appraisal methodology employed;
and
4. To the extent that the
appraisal is based on a capitalization of the pro forma income of the converted
savings bank, the appraisal report must indicate the basis for determination of
the income to be derived from the proceeds of the sale of stock and demonstrate
the appropriateness of the earnings multiple used, including assumptions made
as to future earnings growth. To the extent that the appraisal is based on a
comparison of the proposed capital stock of the applicant with the outstanding
capital stock of existing banks, the appraisal report must demonstrate the
appropriate comparability of the form and substance of such outstanding capital
stock and the appropriate comparability of such existing stock form banks in
terms of such factors as size, market area, competitive conditions, profit
history, and expected future earnings .
5. The appraisal report shall be updated and
filed with the commissioner prior to the pricing of the capital stock offered
in the conversion.
(b)
In addition to the information required in 209 CMR 33.08(3)(a), the applicant
shall submit information demonstrating to the satisfaction of the commissioner
the independence and expertise of any person preparing appraisal report under
209 CMR 33.00. However, a
person shall not be considered to lack independence by virtue of such person's
participation in effecting a sale of capital stock under the plan of conversion
or because such person receives a fee from the applicant for services rendered
in connection with such appraisal.
(4)
(a)
Promptly after the commissioner has declared the prospectus or offering
circular for the subscription offering effective, the applicant shall
distribute order forms for the purchase of capital stock in the subscription
offering to all eligible account holders, supplement aleligible account holders
(if applicable) and other persons who may subscribe for such shares under the
plan of conversion.
(b) Each order
form shall be accompanied or preceded by the final prospectus or offering
circular for the subscription offering and a set of instructions explaining how
to properly complete such order forms.
(c) Order forms shall be approved in writing
by the commissioner prior to use.
(d) The order form may provide that it may
not be modified without the applicant's consent after its receipt by the
applicant. If payment is to be made by withdrawal from a deposit account with
the applicant, the applicant may, but need not, cause such with drawal to be
made upon receipt of the order form. If such withdrawal is made at any time
prior to the closing date of the subscription offering, the applicant shall pay
interest to the account holder on the account with drawn as if such amount had
remained in the account from which it was withdrawn until such closing
date.
(e) The mailing of a notice
to all eligible account holders or supplemental eligible account holders (if
applicable) with a request form to be returned to the converting bank by a
reasonable date certain to request subscription or direct community offering
materials described above shall satisfy the requirements of 209 CMR
33.08(4)(a).
(f) The subscription
offering period must run no less than 20 but no more than 45 days from the date
of distribution of the subscription offering circular. Said period may be
extended at the request of the applicant, subject to the approval of the
commissioner pursuant to 209 CMR 33.08(5).
(5)
(a) The
sale of all shares of capital stock of the converting bank to be made pursuant
to a plan of conversion, including any sale in a public or other offering,
shall be completed as promptly as possible and within 45 calendar days after
the last day of the subscription period, unless extended by the applicant with
the approval of the commissioner. The commissioner may make his approval
contingent upon such conditions as he may deem appropriate.
(b) Upon the occasion of any event,
circumstance or change of circumstance which would be material to the
investment decision of a subscriber in the subscription offering and of a
community purchaser in a concurrent direct community offering, and which occurs
after the expiration of the subscription offering or concurrent direct
community offering, but before the commencement of the public offering or
subsequent direct community offering, as the case may be, the converting bank
shall file with the commissioner a post-effective amendment to any offering
circular previously sent to subscribers and community purchasers, if
applicable.
(c) The converting bank
shall distribute the post-effective amendment to each subscriber and each
community purchaser, if applicable, immediately after the commissioner has
approved and declared it effective. The converting bank shall grant to each
subscriber and to each community purchaser, if applicable, the right to
increase, decrease or rescind his subscription or purchase order (within the
subscription or purchase limits prescribed by the converting bank's plan of
conversion) for a period of time which shall be no less than ten days from the
date the post-effective amendment was distributed or the period remaining in
any extension of time granted by the commissioner pursuant to 209 CMR 33.08(5),
whichever period ends later.
(6)
(a)
Prior to completion of a conversion, no person shall transfer or enter into any
agreement or understanding to transfer, the legal or beneficial ownership of
conversion subscription rights, or the underlying securities, to the account of
another person.
(b) Prior to
completion of a conversion, no person shall make an offer, or announcement of
an offer or intent to make an offer, for any security of a converting bank
issued or to be issued in connection with such plan of conversion.
(c) For a period of three years following the
date of the completion of a plan of conversion, no person shall directly or
indirectly offer to acquire or acquire the beneficial ownership of more than
10% of any class of an equity security of a bank converted in accordance with
the provisions of
209 CMR 33.00, without prior
written notice to the converted bank and the prior written approval of the
commissioner. Where any person, directly or indirectly, acquires beneficial
ownership of more than 10% of any class of any equity security of a bank
converted in accordance with
209 CMR 33.00, without prior
written notice to the converted bank and the prior written approval of the
commissioner as required by 209 CMR 33.08, the securities beneficially owned by
such person in excess of 10% shall not be counted as shares entitled to vote,
shall not be voted by any person or counted as voting shares in connection with
any matter submitted to the stockholders for a vote, and shall not be counted
as outstanding for purposes of determining the affirmative vote necessary to
approve any matter submitted to the stockholders for a vote, and the
commissioner may take any further action pursuant to
209 CMR
33.11 as he may deem appropriate.
(7)209 CMR 33.08(6)(a) and (b)
shall not apply to a transfer, agreement or understanding to transfer, offer,
or announcement of an offer or intent to make an offer which pertains only to
securities to be purchased pursuant to
209 CMR
33.05(6) and has the prior
written approval of the commissioner and/or to which the board of the savings
bank or cooperative bank has, in advance, consented to in writing.
(8)209 CMR 33.08(6)(b) and (c) shall not
apply to any offer with a view toward public resale made exclusively to the
converting bank or underwriters or selling group acting on its
behalf.
(9) Unless made applicable
by the commissioner by prior advice in writing, the prohibition contained in
209 CMR 33.08(6)(c) shall not apply to any offer or announcement of an offer
which, if consummated, would result in the acquisition by a person, together
with all other acquisitions by such person of the same class of securities
during the preceding 12-month period of not more than 1% of the class of
securities.
